SH. S.K. VAISHversusUNION OF INDIA AND ORS.

A                                SH. S.K. VAISH
                                         v.
                          UNION OF INDIA AND ORS.

                              SEPTEMBER 11, 1996

B    (K. RAMASWAl~A:Y, FAIZAN UDDIN AND G.B. PAITANAIK, JJ.)

          Service Law :

          Efficiency Bar-Crossing of-Employee kept under suspension and
C disciplinary proceedings initiated against him-Punishment of compulsory
   retirement imposed-On appeal, department directed that the punishment be
   treated pwtly as suspension and pa1tly in service-Tribunal directing that the
  ·employee be treated as on duty for all pwposes including pay and allowan-.
   ces--It also held that DPC had considered his case for efficiency bar and
  found him not fit and therefore the employee not entitled to cross efficiency
D ba~n appeal held, after reinstatement the employee had hardly worked for
   three months--Foi· three successive years there were adverse entlies against
   him--OPC recommended that he was unfit to cross efficiency ba1-Tribuna/
   accepted the position-Hence no inteiference called for.

          CIVIL APPELLATE JURISDI,CTION: Special Leave Petition (C)
E    No. 19774 of 1996.

           From the Judgment and Order dated 15.2.96 of the Central Ad-
     ministrative Tribunal, Delhi in: O.A. No. 978 of 1992.

          Sant Lal, Pradeep Kumar and B.S. Gupta for the Petitioner.
-F
          The following Order of the Court was delivered :

        ·-~ Delay condoned.

          This Special Leave Petition has been filed against the order dated
G February 15, 19% made in OA. No. 978/92 of th'e CAT, Principal Bench,
     New Delhi. The admitted position is that the petitioner after his promotion
     as Assistant Engineer in Telecom Engineering Service Group 'B' on April
     16, 1979 was kept under suspension and disciplinary proceedings were
     initiated against him. On June 30, 1986, punishment was imposed· by way
H    of compulsory retirement. The same came to be challenged by way of an
                                        114
                          S. K. V AISH v. U.0.1:                       115

appeal. On appeal, the Department directed that the punishment be A
treated partly as suspension and partly as in service by proceeding~ dated
February 16, 1979. When the petitioner challenged the same in O.A. No.
1690/90, by order dated February 14, 1992, the samf was allowed and
direction was given to treat him as on duty for all purposes including pay
and allowances. After reinstatement, the petitioner retired from service on
                                                                            B
attaining superannuation on ·May 31, 1992. He had prior to that filed
representation for crossing his efficiency bar. In the impugned order, the
Tribunal has held that the D.P.C. had considered his case for efficiency
bar and found him not fit and, therefore, he is not entitled to the relief.
Thus, this special leave petition.
                                                                             c
       It is contended by the learned counsel for the petitioner that when
he was reinstated into service the efficiency bar was required to be
considered after taking into account his subsequent record. What was
stated was adverse entries for the year 1979-80, 1980-81-1981-82. There was
no reconsideration in the light of the direction issued by the Ministry in D
the letter dated September 18, 1991 in O.M. No. 7(28)/EIIl/91 that all
pending cases should be considered to bring the pending cases of the
employee so as to bring them on par with the scale of pay recommended
by the 4th Pay Commission. The petitioner had given a representation but
the same was not considered; even direction given to produce the record
was not followed. Therefore, the Tribunal ought to have drawn adverse E
inference against the Government and should have directed that he was
 entitled to cross the efficiency bar. He also contended that the sealed cover
 procedure as is invogue should have been adopted for crossing the efficien-
 cy bar and kept pending when the departmental enquiry was pending
 against him.                                                                  F

      We find no force in the contention. The petitioner has not brought
to our notice any circular issued by the Government and it is obviously
incongruous for the reason that in the event of the petitioner's disciplinary
proceedings becoming final the exercise to consider the question of cross- G
ing the efficiency bar would be fruitless. It would be unnecessary to
consider the case for efficiency bitr. It would be only in the event of his
being reinstated in the service that the question of consi~eration of his
crossing the efficiency bar would arise. Therefore, the sealed cover pro~e­
dure in consideration of question of efficacy bar does not apply. It is seen
that after the representation was made by the petitioner on June 8, 1990, H
    116                   SUPREME COURT REPORTS [1996) SUPP. 6 S.C.R.

A the matter was referred for consideration by the D.P.C. D.P.C. had met on
  .January 21, 1992 and considered the record of the petitioner. After
  reinstatement, he had hardly worked for three months. It would appear
  that for three successive years, there were adverse e..ntries against the
  petitioner. Consequently. DPC as considering the record of the petitioner
  which was available, recommended that he was unfit to cross efficiency bar.
B The same came to be informed to the petitioner vide letter dated February
  7, 1992. The Tribunal also had accepted this position. Under these cir-
  cumstances, we do not find any illegality in the order passed by the
  Tribunal warranting issue of notice.

C          The special leave petitiion is dismissed.

    G.N.                                                  Petition dismissed.


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