HARI OM PRAKASH AGARWAL Vs. UNION OF INDIA

JUDGEMENT

(1.) HARI Om Prakash Agarwal, the petitioner in this writ petition under Article 226 of the Constitution, has challenged the order passed by the Assistant Collector (Head quarters) Central Excise, Allahabad and affirmed by the Central Board of Excise and Customs, New Delhi to the effect that the petitioner be permitted to cross the efficiency bar at the stage of Rs. 380/- per month with effect from May 1, 1978 and not with effect from the due date, namely, May 1, 1974.

(2.) THE petitioner was appointed as Lower Division Clerk in the Customs and Central Excise Department in the Allahabad Collectorate and was subsequently promoted as Stenographer. According to him, he was entitled to cross the efficiency bar after reaching the stage in the time scale of pay at Rs 380/-per month at the rate of Rs. 12/- per month. Hb case should have been considered for being permitted to cross the efficiency bar prior to May 1, 1974 but the respondents did not do so. On February 4, 1975 the petitioner was charge sheeted for an alleged breach of the Central Civil Services 'Conduct) Rules, 1964, inasmuch as he made a wrong statement before the Superintendent (Vigilance\ Central Excise, Allahabad that he had not written two post-cards, dated 30-6-72 and 26-7-1972 addressed to one B N. Saran, UDC C/O Assistant Collector, Central Excise, Barailly. After inquiry it was found that the petitioner had actually written those letters. By way of punishment for this lapse two increments of the petitioner were stopped with cumulative effect but this punishment was modified by the board in an appeal by the petitioner to that of the stoppage of two increments without cumulative effect. THE order of the Board was communicated to the petitioner by the Assistant Collector Head quarters Central Excise, Allahabad, by communication dated April 4, 1977 Annexure 2 to the writ petition.

(3.) WE have heard the learned counsel for the parties and we are of opinion that the view taken by the respondents is not tenable in law. The Fundamental Rules framed by the Government of India provide in Fundamental Rule 24 that an increment should ordinarily be drawn as a matter of course by a Government servant unless it is withheld. Fundamental Rule 25 lays down that where an efficiency bar is prescribed in a time scale, the increment next above the bar shall not be given to a Government servant without the specific sanction of the authority, empowered to withhold increments under Rule 24. Some decisions have been taken by the Government of India which have been complied in the form of notes under various Fundamental Rules. One such decision i Note 8 under Fundamental Rule 25 as extracted in Swamy's Compilation of the Fundamental Rules, 1977 Edn.) is to the effect that a Government servant against whom departmental proceedings are pending but who is due to cross the efficiency bar prescribed in his time scale of pay, may not be allowed to cross the bar until after the conclusion of the proceedings. It has also been mentioned that if after the conclusion of the proceedings, the Government servant is completely exonerated, he may be allowed to cross the efficiency bar with effect from the due date retrospectively, unless the competent authority decides otherwise. But, if the Government servant is not completely exonerated, his case for crossing the efficiency bar cannot be considered with retrospective effect from the due date but can be considered only with effect from a date following the conclusion of the disciplinary/vigilance case, taking into account the outcome of such case.