Om Parkash vs State of Haryana

M. Jeyapaul, J.—The plaintiff preferred the present appeal aggrieved by the acceptance of appeal preferred by defendant by the first appellate Court.

The suit was filed by the plaintiff for declaration that the impugned order passed by the defendant stopping the plaintiff from crossing the Efficiency bar was illegal, arbitrary and against the principles of natural justice.

The plaintiff joined Haryana Government service as a Clerk in the year 1971. Considering the fact that six Annual Confidential Reports reflected that his performance was "Average", he was not allowed to cross the Efficiency bar. His appeal and thereafter review were rejected. Hence the suit.

The defendant set up a plea that the suit claim is barred by limitation. It was contended that as per the Rules in vogue, six annual confidential reports of the respondent reflected that his performance was "Average" and therefore, the impugned order was rightly passed.

The trial Court, having held that issue of limitation was not pressed by the learned Government Pleader, decided the issue of limitation in favour of the plaintiff. Further, holding that the adverse entries made by defendant were not conveyed to the plaintiff and as a result of which the appointing authority cannot take notice of such adverse entries in the service records while considering the issue of Efficiency bar, it held that the plaintiff was entitled to the relief as sought for.

The first appellate Court held, having observed that the impugned order Ex. D2 was passed on 26.2.1979, whereas the suit was filed only on 20.4.1986 well beyond the period of 3 years limitation, that the suit was barred by limitation. Further, it held that withholding the plaintiff from crossing the Efficiency bar was not a punishment. Such an order was purely administrative in nature and therefore, the Court cannot test such an order. The first appellate Court accepted the appeal preferred by the defendant.

The following substantial questions of law have arisen for determination in the appeal:-

Whether adverse confidential reports not conveyed can be taken into consideration for crossing the Efficiency bar.

Whether suit can be dismissed being time barred when suit was filed on 20.4.1986 to challenge the orders dated 21.3.1986, 15.1.1985, 19.12.1983 and 8.4.1983 by which the plaintiff''s claim for crossing the efficiency bar rejected.

Whether the issue of limitation not pressed before the learned Trial Court can again be pressed before the appellate Court.

Learned counsel appearing for the appellant would vehemently submit that the suit was filed the moment the review petition filed by the plaintiff was rejected by the appellate authority. Therefore, the suit is well within the period of limitation. It is his further submission that it is a well settled position of law that adverse entry found in the ACR cannot be taken note of by the authority concerned, when the rule of audi alteram partem was not adhered to by the authority.

Learned State counsel would submit that as per Rules, more than 50% of the annual confidential reports were found to be adverse. The authority has rightly not permitted the plaintiff to cross the Efficiency bar. It is further submitted that the order passed on 26.2.1979 was put to challenge beyond the period of 3 years and therefore, the suit was hopelessly barred with limitation.

Let me first take up the issue of limitation. Of course, the impugned order Ex. D2 was passed by the authority concerned on 26.2.1979. But it is found that the plaintiff has challenged not only the above order, but also the other orders passed both in the appeal as well as in the review filed by him. Those orders have been ultimately passed only on 21.3.1986. The suit has been filed on 24.9.1986. In other words, immediately after the last order was passed by the authority concerned rejecting the review sought for by the plaintiff, the suit has been filed. Therefore, the suit is well within time, it is held. The second substantial question of law is answered accordingly.

The issue of limitation is purely a legal issue. Such a legal question shall be decided by the Court even if one of the parties had not pressed such a question. Therefore, the first appellate Court had the jurisdiction to decide the question of limitation despite the fact that it was not pressed before the trial Court. The third substantial question of law is decided accordingly.

There is no dispute to the fact that out of 14 ACRs taken up for consideration right from the year 1971, 8 ACRs reflected that the performance of the plaintiff was "Average".

The fact remains that adverse entries found in the ACRs were not communicated to the plaintiff for the purpose of making his representation.

In Brij Mohan Singh Chopra Vs. State of Punjab, , it has been held by the Hon''ble Supreme Court that an employee is entitled to make representation against adverse remarks. It is not just and fair to act upon such un-communicated remarks.

In Raghbir Singh Vs. State of Haryana and others, this Court has held that the decision taken by the employer not to promote the employee on the basis of the Average reports is vitiated by the fact that those reports were not communicated to the employee.

In Sukhdev Singh Vs. Union of India (UOI) and Others, , it has been categorically held by the Hon''ble Supreme Court that adverse entry in the annual confidential report must be communicated to the employee within a reasonable time.

It is the settled position of law that an adverse remark found in the ACR must be communicated to the employee. In the absence of such communication, the adverse entry in the ACR shall not be acted upon. The first substantial question of law is answered accordingly.

In view of the above, the judgment and decree passed by the first appellate Court is set aside and the appeal is allowed with cost confirming the judgment and decree passed by the trial Court.