STATE OF MYSORE versus S. V. G. IYENGAR

A

B

c

D

E

F

STATE OF MYSORE

1'. S. V. G. IYENGAR

September 1, 1969 LJ. c. SHAii, v. RAMASll'AMI AND A. N. GROVER, JJ.J 1'!ysore Ciril Serrice Rules, 1958. r. 52-0fficer stopped fronz crossing t:Jjiciency bar-D1.H:iplinary proceedingc; droppe,I l:1t::r and nllo1vc. 1 to retir.e -lVhet!Jer officer dee111ed to li:n·.c c11ttun1aricc1Jly cro.,·sed the !'.fficiency har -H'hether speciul order neces.<oi':,-.

should be

·rhc respondent \Vas v,rorking n'i an Ex·2cutivc Engineer in the Hyd~rabad In 1955, the Public Servic,~ Cn111mi~si'Jn rccomn1enJcd that : (1) State. he should ·be stoppcJ fro111 crossln~ the cttich::ncy bar \Vith cff~ct from recovered Februorv ~. 1952; and (2) a sum of Rs. 23,371 fron1 his S<:\lary on account of loss caused to the Government by his negli~ g-.::ncc. On Novcn1hcr 1, 1956 the Stntcs' Reorganisation Act came into tor..:~ a;1d the respondent \vas a11ottcd to the appcllant-St:-.tc. Even after the respondent completed the ng·e of .55 years in 1960, he \\'rl.S continued in service by the appellant-Stall~. hut 1111dcr s1~~pension pending: con1pletion of the disciplinary pro~edings against hi111. but in l 961, he \\'as µcrmitted to retire and all the disciplinary proceedings pending against hin1 \vere dropped altogether. After his rctircrrient. he fik:d a \\:rit petition for a declaration that he \Vas stopped fron1 crossing the efficiency bar onl~ 1 be cause the Goyernmcnl wanted to rcin1burse itself for the loss caused by the rc'\pondent, that consequent upon the dropp:ng of the proceedi;i~s against him, he should be dcen1ed not to have caus·:d any 1os" to tile Gov ernment, and so, to hav~ crossed the l~ffi.ciency bar on Fcbru~ny 9i 1952. and therefore. th~ incrcn1ents \Vithhckl should be rc<;torc<l and the increased salary should· bo= taken into account in fixing his rcnsion. The High Court allo\.ved the petition.

In appeal to this Court,

HELD : Merely becau<;e the disciplinary proceedings against him were dropped for certain reasons it did not automatically foJlov.1 that lhe res· pendent was nllo,vcd to cross the ellicicncy bar. Under thi Civil Service Rules in Hyderabad and in Mysore, an express order of the appropriate authority is necessary before an officer was allov..,ed to cross the efficiency bar and no such order wa~ passed in the present case. [161 D-F]

CIVIL APPELLATE JURJSD!CfION : Civil Appeal No. 1312 of

1966.

. -

G

Appeal by special leave from the judgment and order, dated October 1, 1962 of the Mysore High Court in Writ Petition No. 1280 of 1961.

Niren De, Attorney-General, S. S . .Tavali and S. P. Nayar, for

the appellant.

H

B. R. L. lyeng~r and A. G. Ratnaparkhi, for the respondent. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought by special leave from the judgment of the Mysore High Court dated October 1, 1962 in

160

SUPREME COURT REPORTS

[1970] 2 S.C.R.

Writ Petition No. 1280 of 1961 directing the appe!lant to deter mine the salary payable to the respondent on the basis that he had been permitted to cross the efficiency bar in time scale of pay of Rs. 900-50-1200-EB-75-1500 in Osmania Sikka rupees. The High Court also directed by the same judgment that the incre ments above the efficiency bar be withheld by the appe!lant should now be paid to him and the salary sc determined should be taken into account for determining the amount of pension payable to the respondent in accordance with the relevant rules.

The responde,nt was working as an Executive Engineer in the Public Works Department of the Hyderabad State and was in charge of certain project works during the period June 1949 to September 1950. On the basis of some information the explana tion of the respondent was ca!led for in respect of certain a!leged irregularities in the execution of certain project works. The respondent sent in his explanations dated June 14, 195 l and December 10, 1951 to the Superintending Engineer, Munirabad. In October 1953 the Enquiry Officer came to the conclusion that some loss had been caused in respect of four projects more due to lack of foresight and organising capacity on the part of the respondent than to any intentional misappropriation and a show cause notice was issued on March 11, 1955 asking the respon dent to show cause why he should not be stopped from crossing the efficiency bar with effect from February 9, 1952 and why a sum of Rs. 23,371/- should not be recovered from his salary on account of the loss caused to the Government by the respondent's negligence. After the respondent had shown cause the matter was sent by the Government to the Public Service Commission. The Public Service Commission recommended that in addition to stopping the respondent at the efficiency bar for the period 1952 to 1957 as recommended by the Government, the pecuniary loss caused to the Government should be recovered from the respon dent. On November 1, 1956 the States' Reorganisation came ;nto force and the services of the respondent stood transferred .to the the State of Mysore. By its order dated October 14, 1958 Mysore Government directed that the respondent should be retired compulsorily from service and should also be asked to make good sum of Rs. 4,576/- being the amount of loss cansed to Govern ment iu the above connection. The respondent challenged this order by a writ petition on the ground that the Enquiry Officer at Hyderabad had exonerated him of all the ·charges excepting one and also because the report of the Enquiry Officer was not furnished to the respondent. The High Court of Mysore a!lowed the writ petition and quashed the order of the Government. the Thereafter the Mysore Government took matter and the respondent presented several other writ petitions in the Mysore High Court impunging the subsequent action of the

further steps in

A

B

c

D

E

F

G

H

MYSORE STATE v. s. V.G. IYENGAR (Ramaswami, !.)

161

A

B

c

D

E

It is unnecessary

Mysore Government. for the purpose of the purpose of the present appeal to set out the orders of the Mysore Government and the writ petitions filed by the respondent and the Orders made by the High Court except to >tale that by an order made on December 10, 1960 he respondent who was to have retired with effect from Octob.er 27, 1960, the date on which he completed the age of 55 years was continued in ser vice but under suspension pending completion of the disciplinary proceedings against him and that the Government by a subsequent order dated May 19, 1961 revoked th~ previous order of Decem ber 10, 1960 and permitted the respondent to retire dropping al together the disciplinary proceedings against him. After his retirement the respondent filed writ petition No. 1280 of J.961 praying for declaration that he should be regarded as having crossed the efficiency bar in his pay scale on February 9, 1952 and that he should be given all the increments after the efficiency bar in the pay scale of an Executive Engineer and that he should the be paid the difference and his pension should be basis of enhanced salary claimed by him. The claim '.)f the res pondent was resisted by the Mysore State on the ground that under r. 38 of the Hyderabad Civil Service Rules a specific order ought to be made p.ermitting the respondent to cross the effid;lncy bar. The High Court rejected the contention of the appeJlant and held that consequent upon the dropping of the proceeding against the respondent the increment withheld by way of penalty should be restored and the increased salary should be taken into account in fixing the amount of pension payable to the respondent.

fixed on

Rule 38 of the Hyderabad Civil Services Rules, 1952 reads

as follows:

F

G

H

"Where an efficiency bar is prescribed ~n 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." Rule 52 of the Mysore Civil Services Rules, 1958 is in the same language as r. 38 of the Hyderabad Civil Service Rules.

On behalf of the respondent it was contended that the with holding of the inc,rement of the respondent at the efficiency bar was in<ended to operate as a penalty for alleged misconduct. It was said that upon the facts of the case the only conclusion pos sible was that the Government wanted to stop the respondent at the efficiency bar in the time scale with a view to reimburse itself at the expense of the respondent the loss said to have been caused It was, therefore, argued that 'after by him to the Government. th.e dropping of disciplinary proceedings against the respondent without recorciing any finding of guilt no penalty could be imposed. It was contended that once the Government had taken the jlecision

162

SUPREME COURT REPORTS

[ 1970] 2 S.C.R.

to stop the respondent at the efficiency bar by way of penalty it must be held that the Government had waived their right to stop the respondent at the efficiency bar for administrative reasons \ll'ider r. 3 8. In our opinion there is no warrant for the contentions advanced on behalf of the responde,nt. It is manifest that in view of the language of r. 38 of the Hyderabad Rules and r. 52 of the Mysore Rules be.fore the respondent could claim payment of in crements next above the bar, it is necessary that the Government should make a special o:der sanctioning such payment. It is true that disciplinary proceedings against the respondent were dropped but the res11lt claimed by the respondent cannot automatically follow a result of the droppin 2 of the disciplinary proceedings. In this connection the Attorney General pointed out that the notice dated March 16, 1955 against the respondent asked him to show cause why : ( l ) he should not be stopped from crossi!lp, the P.ffici ency bar and (2) why n sum of Rs. 23.371-14-2 should not be 1·ecovered from him on account of loss caused to the Government by his negligence. The stoppage nt efficie,ncy bar had no connec· tion with the recovery of loss sustained by the Government and it c:11111ot, therefore, be said thnt the Government walltcd to impose the cflkier.cy, bar became it wanted to reimburse itself for the loss caused by the respondent. So far as the language of r. 38 is concerned it is manifi:st that an express order of the appropriat~ -authority is necessary before the respondent is allowed to cross the efficiency bar. It is not, therefore, possible to accept the conten tion of the respondent that the Govecrunent must be deemed to have given specific sanction under r. 38 of the Hyderabad Rules permitting the respondent to cross the efficiency bar merely be· cause disciplinary proceedings against him had been dropped for certain reasons.

In the High Court the case was argued by both the parties on the assumption that r. 38 applied to the case of the respondent. During the hearin)! of the appeal in this Court it was stated by Mr. Iyengar that when the respondent became due for crossing the efficiency bar r. 38 as it stands at present was not in operation. But it was said that a rule similar to r. 38 was in operation at the relevant time.

For these reasons we held that this appeal should be alJowed and the judgment of the Mysore High Court dated October 1, 1962 should be set aside and the writ petition filed by the respondent sJJould be ordered to be oismissed.

There will be no order with regard to costs in this appeal

A

B

c

E

G

V.P.S.

Appeal a/loll'ed.

H