V.S.Sirpurkar, J.: Unsuccessful petitioner, an association in Institute of Road and Transport Technology, Erode, files this appeal being aggrieved by the dismissal of its writ petition by the learned single Judge. 2. The members of the petitioner- association are the staff of Institute of Road and Transport Technology, a society registered under the Tamil Nadu Societies Registration Act. In their petition, they contended that the petition was being filed for the benefit of all the staff-members of the aforesaid Institute. It was claimed that the service conditions of the staff-members were being governed by the Service Rules of the said Institute, which provide for the method of recruitment, scales of pay, including the annual increments, leave rules and other incidental matters thereto. It is further pleaded that as per the rules and more particularly Rule 10 of the Service Rules, the fixation of pay and grant of annual increment is regulated as per the provisions contained in the Fundamental Rules of the Government of Tamil Nadu. It is then pointed out that in the year 1995, the Principal of the 1st respondent Institute called for Performance Appraisal Reports from the staff members by a circular dated 3.8.1995. This move on the part of the Principal was opposed by the staff members and representations were sent against it and, therefore, nothing happened in the matter till July, 1999. It is pointed out in the petition that the members of the association thought that the Performance Appraisal scheme was shelved permanently but, a circular dated 14.7.1999 came to be issued, requiring the staff members to submit performance-appraisal reports for the period between 1.6.1998 and 31.5.1999. The reports were directed to be sent earlier to 23.7.1999 to consider the sanction of annual increments. It is then pointed out that this is how the subject of annual increments was sought to be linked with the Performance Appraisal Reports, which were invited by the 1st respondent. The petitioner pleads this was opposed by way of a representation, signed by 54 staff-members, requiring the 1st respondent to delink the self-appraisal reports from the sanction of the annual increments. However, nothing was done in the matter. A writ petition was,therefore, filed challenging the said circular and more particularly the action on the part of the 1st respondent to link the self-appraisal reports with the question of sanction of annual increments. However, nothing was done in the matter. A writ petition was,therefore, filed challenging the said circular and more particularly the action on the part of the 1st respondent to link the self-appraisal reports with the question of sanction of annual increments. It is the case of the petitioner that the annual increment is the incident of service and it does not at all depend upon the performance of the staff-members. The petitioner has said in paragraph 10 that though the teaching staff working in Government Engineering Colleges are required to submit self-appraisal reports, it is only a matter for keeping the records and does not have a consequence or effect either on the sanction of annual increments or on promotion or any other incident of service and nobody in any Government Engineering College is penalised in any manner or prejudicially affected on the strength of the performance appraisal. In short, in the petition, the bone of contention was the linking of the sanction of the annual increments with the level of performance of the staff members, which was directed to be made known by the Performance Appraisal Reports. 3. The writ petition was opposed by the respondents on various grounds and the learned single Judge has chosen to dismiss the writ petition. It seems that no objection was raised before the learned single Judge on the question of tenability of the writ petition and,therefore, the learned Judge did not go into that question. On merits, the learned Judge held that it was the inherent right of the employer, much less the employer like the Principal of the 1st respondent Institute, to know about the performance level of every teacher and that there was nothing wrong in linking the question of sanction of annual increments with the performance level of the teachers. The learned Judge, on this ground, dismissed the writ petition. 4. In this writ appeal, the respondents, more or the less, reiterated the same principle and relied upon the same grounds. However, the respondents have now filed a detailed counter and the stand taken by the respondents is that the 1st respondent Institute is neither a Government Institute nor is it getting any funding from the Government or from the University Grants Commission or from the All India Council for Technical Education for running the Institute. However, the respondents have now filed a detailed counter and the stand taken by the respondents is that the 1st respondent Institute is neither a Government Institute nor is it getting any funding from the Government or from the University Grants Commission or from the All India Council for Technical Education for running the Institute. It was pointed out that the said Institute was run by the Governing Council consisting of Managing Directors of State Transport Undertakings as well as eminent experts from diverse fields and Institutions like I.I.T., Anna University, C.I.R.T., B.I.S., A.A.S.I., etc. However, no specific objection is taken to the submission made in the writ petition that the 1st respondent Institute is an instrumentality of the State. In fact, a detailed reading of the counter does not show that the petition was opposed on the ground of tenability. 5. As regards the merits, the stand taken by the respondents is based generally on the service jurisprudents and it is pointed out that it is the duty of every teacher to perform in the best possible manner and upto a particular standard. The respondents reiterate on the right of the employer to appreciate and appraise the performance of its employees and it is pointed out that in the years of globalization, every institute must have high standards and has to be accredited by the National Board of Accredition set up by the All India Council for Technical Education, New Delhi. It is then pointed out that to achieve excellence in the field of technical education, it was essential that it was with that idea that the scheme of performance-appraisal of teachers was introduced. The respondents further plead that it is an inherent right of every employer to seek the performance- appraisal from its employees. The respondents oppose the principle that the sanction of annual increments is earned by efflux of time and that it cannot be stopped. According to the respondents, the grant of annual increments can be a matter of course provided the teacher has good performance and conduct during the relevant period and it is not unconditional. The respondents oppose the principle that the sanction of annual increments is earned by efflux of time and that it cannot be stopped. According to the respondents, the grant of annual increments can be a matter of course provided the teacher has good performance and conduct during the relevant period and it is not unconditional. The respondents have also relied on Appendix-II, 7(b) and (c) and point out that the career advancement to senior grade and selection grade is not automatic or by efflux of time and that such career advancements for a teacher can be given only after assessing the performance of the teachers. 6. We do not propose to go into the question of tenability of the petition since the petition has already been entertained. The other reason for not going into that question is the respondents had never raised that question before the learned single Judge and the parties proceeded on the assumption that the writ petition was maintainable. We, therefore, desist to express on the question of tenability and would limit ourselves to the consideration of the contentions on the merits of the matter. 7. There is no dispute that the service conditions of the staff-members of the appellant-association are governed by the Service Rules of the 1st respondent Institute, which have been provided by the appellant before us. Rule 10 provides for fixation of pay and annual increments. It says fixation of pay and grant of annual increments to the employees of the Institute shall be regulated as per the provisions contained in the Fundamental Rules of the Government of Tamil Nadu unless otherwise directed by the Governing Council. The mainstay of the arguments of the appellants is this Rule. Their contention is that there is nothing in the Fundamental Rules to suggest that the annual increments can be linked with the performance of the teachers and that as per those Rules, the annual increments is a matter of course. This stand is taken in the writ petition also. 8. Learned senior counsel invited our attention to Chapter II Annexure I of these Rules, which provides for the scales of pay. The learned senior counsel points out that in so far as the posts of Assistant Librarian and Physical Director, appearing at Sr.Nos.6 and 7, are concerned, at a particular stage, there is an Efficiency Bar. 8. Learned senior counsel invited our attention to Chapter II Annexure I of these Rules, which provides for the scales of pay. The learned senior counsel points out that in so far as the posts of Assistant Librarian and Physical Director, appearing at Sr.Nos.6 and 7, are concerned, at a particular stage, there is an Efficiency Bar. Learned senior counsel points out that such efficiency bar is not found in respect of other posts. According to the learned senior counsel, the annual increments could be stopped only if a particular employee is not allowed to cross the Efficiency Bar and such a stoppage of increment would necessarily depend upon the appraisal of the performance of that employee. As a natural corollary to this argument, the learned senior counsel says that where no Efficiency Bar is indicated in the scales of pay of the employees then, there will be no question of stopping their annual increments on the basis of their performance. According to the learned senior counsel, the provision of the Efficiency Bar is made only for the appraisal of the performance and therefore, the absence of the Efficiency Bar in the scales of pay of any employee would indicate that the sanction of annual increment would be automatic, without being linked to any other factor. According to the learned senior counsel, the learned Judge has chosen to fall back upon the general principles and has ignored the fact that barring these two posts, there was no Efficiency Bar provided in the scales of pay of any of the employees, who could be distributed in as many as 23 categories. This was opposed by the learned counsel for the respondents suggesting that the appraisal of the performance of the employees is the natural right of the employer nay it is his duty and, therefore, if such an appraisal is made, there is nothing wrong on the part of the employer and that merely because the 1st respondent Institute calls for the Performance Appraisal Reports that by itself cannot entitle the employees to clamour against it. According to the learned senior counsel for the appellant, the employees are not weary of sending their performance-appraisal reports and, in fact, in the representation dated 22.7.1999, they have assured that they would submit their performance-appraisal reports but, that would be as per the practice followed in Government Engineering Colleges. According to the learned senior counsel for the appellant, the employees are not weary of sending their performance-appraisal reports and, in fact, in the representation dated 22.7.1999, they have assured that they would submit their performance-appraisal reports but, that would be as per the practice followed in Government Engineering Colleges. The learned senior counsel says that in the Government Engineering Colleges through the practice of submitting performance-appraisal reports was prevalent, these reports were not linked with the sanction of the annual increments. It is true that in the circular dated 14.7.1999 it is indicated that all the teaching-staff should submit their performance appraisal report for the academic year 1998-99 to consider for sanction of annual increment. It is only from this that the members of the appellant- association have started apprehending that there is going to be a linking between the sanctioning of the annual increments and the performance- appraisal reports. 9. There can be no dispute that there has to be a maintenance of performance level on the part of every employee and such performance level can be fixed by the employer. In our view, the learned Judge was absolutely right in expressing that there was nothing wrong if the respondents sought to call for the performance- appraisal reports from the employees to assess their performance. Even as per the Rules, it is to be seen that the factor of performance of a lecturer is predominantly present. Special Rule No.2 in Chapter II provides that all first appointments by direct recruitment shall be only on consolidated wages for a period that may be specified by the Management and such employees shall be brought on to the time scale of pay, regularly, after closely watching the performance, conduct and regularity in attendance. In this behalf, it is further provided that in the matter of probation the principle/guidelines issued by the Government from time to time would be followed in such cases. In Rule 3(b) of this Chapter, it is provided that senior grade employees who have put in 8/16 years of satisfactory service would be eligible for the advancement to the next grade and while considering such promotion, the subcommittee of service matters constituted for this purpose shall interview and review the performance of the individuals for moving to higher grade subject to approval by Governing Council. Therefore, it cannot be said that merely because a person is brought on the regular time scale of pay, he should take an instantaneous divorce with the principle of performance. The performance- appraisal is a necessary factor and would be omnipresent at least during the tenure of the service. That is the ordinary service jurisprudence. The objection of the learned senior counsel is not with the exercise of calling for the performance- appraisal reports from the employees but, linking the performance with the grant of annual increments and, according to him, the annual increments must come naturally without it being linked with the performance. It only means that the employees here expect the annual increments irrespective of their performance. Such an eventuality is really unfortunate. An employee cannot be heard to say that he will not perform and he will not allow his employer to assess his performance level also merely because the submission of the Performance Appraisal Report is likely to expose him to the danger of losing his annual increment. Such an approach is unthinkable and more particularly in the educational institutions imparting technical education where every lecturer has to not only keep himself equipped with the latest knowledge in the subject but has to inject that knowledge into his alumni so that they stand the stiff- competition in the outside world. One wonders as to how the members of the appellant- association could refuse to send their Performance Appraisal Reports, which would undoubtedly be useful to the respondents in assessing their performance. The learned senior counsel repeats that the members of the appellant-association are not averse to send their Performance Appraisal Reports, but that should not be linked with the grant of annual increments. This stand virtually means that the said Performance Appraisal Reports should merely increase the load of the records to be maintained by the employer. What would be otherwise the purpose of submitting Performance Appraisal Reports if the employer cannot use them to expect a better level of performance and also to give a message that only the performers shall survive. We do not think that the members of the appellant- association are justified in any manner in insisting that their performance- appraisal reports should not be linked with their annual increments merely because there is no provision for Efficiency Bar in their scales of pay. We do not think that the members of the appellant- association are justified in any manner in insisting that their performance- appraisal reports should not be linked with their annual increments merely because there is no provision for Efficiency Bar in their scales of pay. It is an innate principle that an employee remains in the service only during his good behaviour, which also includes a honest effort on his part to perform well. If it is found that a particular employee is a non-performer that can by itself be one of the factors of misconduct in which case, the employer would be well justified in taking an action against such an erring employee who is either a shirker or an incompetent person. In our view, the impugned circular says nothing beyond this. Even if the circular had not stated so in the last sentence regarding the increment, the same result could have been achieved by the respondents by proceeding against a particular individual and taking a disciplinary action against him or punishing him of course only after following the rules. In our opinion, there is nothing in the circular to suggest that it gives a handle to the employer to indiscriminately refuse the annual increment. After all, refusing the annual increment would be a “punishment” for which, a particular procedure would have to be adopted depending upon the rules, which are obviously there in the Fundamental Rules applicable to these employees. In short, this is nothing but an effort to scuttle the consequential punishment on account of non-performance/ under-performance, which cannot be brooked. 10. In our view, the petition is hopelessly premature. Nothing has happened so far and the refusal of annual increment to a particular employee would essentially be an individual action to be examined in the light of the individual facts but, what the appellant-association is seeking to achieve is a general embargo on the powers of the respondents to consider non-performance/ under-performance as a misconduct and to punish the concerned employee for the same. Such an attempt can never succeed. 11. The learned senior counsel relied upon certain precedents to canvass his points. First amongst the judgments is reported in A.M.S.S.M.V.S.S.J.M.S. Trust v. V.R.Rudani, (1989)2 L.L.J. 324. Such an attempt can never succeed. 11. The learned senior counsel relied upon certain precedents to canvass his points. First amongst the judgments is reported in A.M.S.S.M.V.S.S.J.M.S. Trust v. V.R.Rudani, (1989)2 L.L.J. 324. This case was relied upon to suggest that a Mandamus could issue even in a case of a Public Trust running a Science College where the terminal benefits and the arrears of salary were not paid to the teaching staff. The learned senior counsel has relied on this judgment to suggest that the petition is maintainable and the mandamus could issue even against the Management of the private college. To the same effect are the rulings in the decisions reported in Unni Krishnan V. State of Andhra Pradesh, (1993)1 S.C.C. 645 and Krishnamacharyulu v. Sri Venkateswara Hindu College of Engineering, (1997)3 S.C.C. 571 . As we have already pointed out, we are not going to that question. 12. As regards the merits, the learned senior counsel relied on the decision reported in The State of Maharashtra and others v. Association of Maharashtra Education Service Class II Officers and others, (1974)4 S.C.C. 706 to suggest that the State Government could not superimpose and add to the conditions, which were proposed by the University Grants Commission, for placing the Lecturers in the higher scales of pay. What had happened in this case is that the University Grants Commission had recommended a revision of pay-scales for the various categories of Lecturers and this was done with an idea to alleviate the grievance that the teachers were lowly paid as also to bring out uniformity in the scales of pay of the University Lecturers throughout the State. However, the Government of Maharashtra had superimposed its own condition that only such persons having the requisite qualifications before a particular date would be entitled to be placed in the higher pay-scale. The Government took the stand that by putting such Lecturers in the higher pay-scale would tantamount to promoting them to Class I Service and, therefore, such a promotion could not be made unless these Lecturers appeared before the Public Service Commission and got selected by it. The Government took the stand that by putting such Lecturers in the higher pay-scale would tantamount to promoting them to Class I Service and, therefore, such a promotion could not be made unless these Lecturers appeared before the Public Service Commission and got selected by it. The Supreme Court did not accept this stand of the Government of Maharashtra by observing that the contention that Lecturers in Class II of Maharashtra Educational Service must present themselves for selection before the Public Service Commission was introduced apparently on a misunderstanding of the scheme initiated by the University Grants Commission, which had envisaged no element of promotion of Lecturers from one class to another. On that ground, the insistence on the part of the State of Maharashtra that the Lecturers must get themselves selected by appearing before the Public Service Commission for being fixed in the higher pay scale was rejected. The learned senior counsel seeks to rely on this ruling to suggest that once there were the Fundamental Rules available, they alone would hold the field and the respondents cannot add their own rules for increments. According to the learned senior counsel the annual increment can be stopped only by way of punishment, but, according to us, a non-performance/ under-performance can also be one of the grounds for proceeding against that particular employee and to punish him. We have already clarified that on the appreciation of the Performance Appraisal Reports, if the employer comes to the conclusion that a particular employee cannot be allowed to have the next annual increment, the employer can proceed in the manner as provided by the Fundamental Rules to withhold the increment. It is only in that sense that the impugned circular has to be read. However, a contention cannot be brooked that whatever the level of performance, its appraisal cannot be made at all for taking any action including the refusal of annual increment to the employees. At least, the Fundamental Rules, which have been heavily relied upon by the learned senior counsel, do not suggest such an extreme position. From all these, we are convinced that the learned Judge was right in dismissing the writ petition, which had no merits. We, therefore, confirm the judgment of the learned single Judge and dismiss this appeal without any orders as to the costs. Connected C.M.P.No.21539 of 1999 is closed.