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2020 DIGILAW 815 (ALL)

Director I. I. T. Kanpur v. Radha Krishna Tiwari

2020-04-29

BALA KRISHNA NARAYANA, ROHIT RANJAN AGARWAL

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JUDGMENT : B.K. Narayana, J. 1. Heard Sri Navin Sinha, Senior Advocate assisted by Sri Rohan Gupta, learned counsel for the appellants and Sri I.P. Singh, learned counsel for the respondent. 2. This special appeal has been filed by the Indian Institute of Technology, Kanpur challenging the legality and validity of the order dated 24.01.2014 passed by learned Single Judge of this Court by which he has allowed WRIT – A No. 15535 of 1995 preferred by the petitioner/respondent Radha Krishna Tiwari before this Court. 3. Briefly stated the facts of this case are that the petitioner/respondent was appointed on the post of 'Draftsman' in Indian Institute of Technology, Kanpur (hereinafter referred to as “I.I.T. Kanpur”) on 05.02.1963 and was confirmed on his post on 11.02.1964. I.I.T. Kanpur was established by the Society registered under Societies Registration Act, 1860. After coming into force of Indian Institute of Technology Act, 1961, it was incorporated in it. On completion of 14 years continuous service, the petitioner/respondent had become entitled for grant of 'time pay scale' subject to crossing of the 'Efficiency Bar'. 4. Deputy Registrar (Admin) of I.I.T. Kanpur, by his letter dated 14.01.1987, informed the petitioner/respondent that he was not allowed to cross the 'Efficiency Bar' w.e.f. 01.02.1977. The petitioner/respondent represented before Deputy Registrar (Admin) upon receiving the aforesaid letter which remained pending before him. The petitioner/respondent sent reminders on 24.01.1994, 08.02.1994 and 14.11.1994 to the Deputy Registrar (Admin) for deciding his representation. Eventually the petitioner/respondent's representation was rejected by appellant/respondent no. 2 by order dated 19.04.1995. The letter dated 19.04.1995 contained a recital that upon examination of his case file, it was found that his work was poor with no work output and hence, it was decided to hold his 'Efficiency Bar' right from 1977. 5. Challenging the aforesaid letter dated 19.04.1995 issued by the appellant/respondent no. 2, the petitioner/respondent filed WRIT – A No. 15535 of 1995 before this Court. 6. Before the writ court, it was contended by the learned counsel for the petitioner/respondent that 'Annual Confidential Report' of each employee is required to be recorded in his service book once in every year. On completion of 14 years of continuous service, the petitioner/respondent had become entitled to 'time pay scale' subject to his crossing of 'Efficiency Bar' under the Service Rules. On completion of 14 years of continuous service, the petitioner/respondent had become entitled to 'time pay scale' subject to his crossing of 'Efficiency Bar' under the Service Rules. 'Efficiency Bar' was assessed on the basis of 'Annual Confidential Report' and since admittedly, no entries were recorded in the service book of the petitioner/respondent upto 1994, there was no material before the appellant/respondent no. 2 to assess the work and conduct of the petitioner/respondent. It is further contended that the petitioner/respondent had been taking an active role in the Worker's Union and had also held posts from time to time and due to the aforesaid reason, he was not able to cross the 'Efficiency Bar'. It was further contended that Fundamental Rules provided that when the 'Time Pay Scale' becomes due, the competent authority is required to assess the efficiency of the employee for the purpose of his being allowed to cross the 'Efficiency Bar' which is a condition precedent for grant of 'time pay scale' and if the competent authority decides to withhold 'Efficiency Bar', in that case competent authority is required to communicate its decision to the concerned employee immediately and the competent authority is required to assess the 'Efficiency Bar' of the concerned employee in every year or subsequent to the year in which the 'Efficiency Bar' is withheld. The competent authority in the instant case did not assess the work and conduct of the petitioner/respondent either in the year 1977 or in the subsequent years thereafter, while letter dated 14.01.1987 was issued informing the petitioner/respondent that he was not allowed to cross the 'Efficiency Bar' w.e.f. 01.02.1977 although his service book was totally blank. It was lastly contended before the writ court that there was absolutely no material before the competent authority to assess the work and conduct of the petitioner/respondent for the purpose for the purpose of forming his opinion whether the petitioner/respondent was entitled to cross the 'Efficiency Bar' or not nor any actual order withholding the 'Efficiency Bar' was passed in the year 1977. 7. The stand of the appellant/respondent no. 7. The stand of the appellant/respondent no. 2 before the writ court was that the petition which had been filed after an inordinate delay was liable to be dismissed on the ground of latches itself as the decision for withholding the 'Efficiency Bar' was communicated to the petitioner/respondent through letter dated 14.01.1987 while the writ petition was filed on 30.05.1995 and by making repeated representations, limitation cannot be enlarged as held by Supreme Court in State of Tamil Nadu Vs. Seshachalam reported in (2007) 10 SCC 137 and Union of India Vs. M.K. Sarkar reported in (2010) 2 SCC 59 . 8. It was also contended that no opportunity of hearing is required to be given by the competent authority to the employee with regard to whom it takes a decision to withheld 'Efficiency Bar' as held by the Supreme Court in Haryana Warehousing Corporation Vs. Ramavtar reported in (1996) 2 SCC 98 . The work of the petitioner/respondent was found to be unsatisfactory. As such, the competent authority rightly withheld the 'Efficiency Bar' of the petitioner/respondent and the decision taken by the competent authority withholding the 'Efficiency Bar' is not subject to judicial review by the Court and its exercise of its jurisdiction and the writ petition was liable to be dismissed. 9. Learned Single Judge, after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the material on record, allowed the writ petition by the impugned order and after quashing the orders dated 14.01.1987 and 19.04.1995 withholding the 'Efficiency Bar' of petitioner/respondent w.e.f. 01.02.1977, rejected his representation and directed the respondents to release the 'Efficiency Bar' and grant the other consequential benefits to the petitioner/respondent w.e.f. 01.02.1977 within a period of three months from the date of filing of certified copy of this order before the concerned authority. 10. The order passed by the learned Single Judge has been challenged by Sri Navin Sinha, learned counsel for the appellants on the following grounds :- (1) The writ petition filed by the petitioner/respondent challenging the orders refusing to allow the grant of 'Efficiency Bar' and rejecting his representation was passed after an inordinate delay and hence, it was liable to be dismissed on the ground of latches alone. (2) The petitioner/respondent was not allowed to cross the 'Efficiency Bar' by the competent authority as upon assessment of his entire service record, his work and conduct was not found satisfactory and it is absolutely incorrect to allege that on the date on which the decision was taken by the competent authority not to allow the petitioner/respondent to cross the 'Efficiency Bar', his ACR was blank and there was no material before the competent authority for taking decision of disallowing the petitioner/respondent to cross the 'Efficiency Bar'. 11. Per contra, Sri I.P. Singh, learned counsel appearing for the respondent made his submissions in support of the impugned order and submitted that it is evident from the own document of the appellant that the service book was filled up in the year 1995 and thereafter he was given information thereof and as far as arguments advanced by the learned counsel for the appellants that the writ petition is barred by latches is concerned, the same was rightly decided by the learned Single Judge against them by holding that before 19.04.1995 which is the date on which the petitioner's representation was rejected, he had no cause of action to file the writ petition. 12. We heard learned counsel for the parties and perused the material brought on record. 13. The first ground on which Sri Navin Sinha, learned counsel for the appellants has assailed the order passed by the learned Single Judge is that the writ petition filed by the petitioner/respondent was barred by latches as there was an inordinate delay on his part in challenging the letter dated 14.01.1987 by which he was communicated the decision of the appellant/respondent no. 2 to withhold 'Efficiency Bar' and the learned Single Judge manifestly erred in taking a view to the contrary. 14. In support of his aforesaid contention, learned counsel for the appellants has placed reliance upon the judgment of the Apex Court rendered in the case of Seshachalam (supra). In the paragraph nos. 2, 3, 4 and 5 of the aforesaid case, the Apex Court has held as hereunder :- 2. Respondents herein have been working in the Secretariat of the Government of Tamil Nadu. Each and every department in the Government Secretariat prior to 1961 had a separate unit for appointment, promotion etc. In the paragraph nos. 2, 3, 4 and 5 of the aforesaid case, the Apex Court has held as hereunder :- 2. Respondents herein have been working in the Secretariat of the Government of Tamil Nadu. Each and every department in the Government Secretariat prior to 1961 had a separate unit for appointment, promotion etc. The State had, however, amended the Special Rules in the year 1961 whereby all the departments in the Secretariat were made the "one unit" for the purpose of appointment and promotion. Appointments in the Secretariat at all entry level posts, i.e., Junior Assistants (subsequently re-designated as Assistants), Assistants (subsequently re-designated as Assistant Section Officers), Typist/Personal Clerks were to be made from the common list of candidates selected by the Tamil Nadu Public Service Commission. Promotion to different higher posts in different departments was also being made from amongst those employees. The Government of Tamil Nadu, however, by issuing G.O.Ms. No.1290 dated 05.06.1970 excluded the Finance and Law Departments from the "one unit" system. As a result whereof while the posts in the cadre of Assistants, Assistant Section Officers, Typists/Personal Clerks continued to be filled up from the common list of candidates, but in Finance and Law Departments, further promotions were effected from amongst the employees allotted thereto only. Appointments to Finance Department, however, were made at random and probably in terms of the option exercised by any particular candidate. Many persons, who have, thus, been ranking higher were employed in "one unit" departments whereas some of the candidates ranking lower were employed under fortuitous circumstances in the Finance Department. The employees working in the Finance Department, therefore, obtained promotions much ahead of their peers or even seniors who were discharging their duties in other departments coming within the "one unit". 3. G.O.Ms. No.3288 (Public Services Department) was thereafter issued on 29.10.1971 specifying Finance and Law Departments as separate units from the level of Superintendent (Section Officer) and above. Admittedly, however, Rule 4 of the Special Rules of the Tamil Nadu Secretariat Service was amended in that behalf. The said policy, however, is said to have been implemented. 3. G.O.Ms. No.3288 (Public Services Department) was thereafter issued on 29.10.1971 specifying Finance and Law Departments as separate units from the level of Superintendent (Section Officer) and above. Admittedly, however, Rule 4 of the Special Rules of the Tamil Nadu Secretariat Service was amended in that behalf. The said policy, however, is said to have been implemented. Two employees, S. Kalaiselvan and S. Sivasubramanian, filed an Original Application before the Tamil Nadu Administrative Tribunal in the year 1990 claiming promotion and scale of pay at par with those who were working in the Finance Department and who were said to be juniors to them but had been promoted to higher posts in Finance Department. The said Original Application was allowed by the Tribunal by an order dated 16.4.1993 opining that there existed no guidelines to allot any employee to the Finance Department, vis-`-vis, other departments and, thus, the employees working in other departments could not have been deprived of the benefit of promotion. It was furthermore pointed out that even Rule 4 of the Special Rules for the Tamil Nadu Secretariat Service had not been amended by the said GOMs No.1290 dated 05.06.1970. 4. The Government of Tamil Nadu thereafter amended the Service Rules with retrospective effect from 05.06.1970 by issuing G.O.Ms. No.30 Personnel and Administrative Reforms (D) Department dated 28.1.1994. Upon issuance of the said Government Order, an application for review was filed but the same was dismissed by the Tribunal by an order dated 30.1.1995. The Government was thereafter advised to implement the order of the Tribunal by giving promotion to the concerned employees with retrospective effect from the date on which their juniors had been promoted as Assistant Section Officers in the Finance Department. Sanction was also accorded for creation of two supernumerary posts, namely, posts of Assistant Section Officers in the respective departments. Several representations thereafter were made by persons said to be similarly situated claiming promotion and parity in the scale of pay as compared to their counterparts in the Finance Department. A large number of Original Applications were also filed before the Tamil Nadu Administrative Tribunal. Upon consideration of various pros and cons, the Government of Tamil Nadu issued a GOM bearing No.126 dated 29.5.1998, relevant paragraphs whereof read as under : "10. A large number of Original Applications were also filed before the Tamil Nadu Administrative Tribunal. Upon consideration of various pros and cons, the Government of Tamil Nadu issued a GOM bearing No.126 dated 29.5.1998, relevant paragraphs whereof read as under : "10. The Government accordingly direct that :- (i) the pay of the seniors in One Unit who have been recruited to the Tamil Nadu Secretariat Service on or before 28.1.1994, shall be stepped up on par with their juniors in the Finance unit by upgrading the posts held by them to the Scale of pay applicable to the juniors with immediate effect. (ii) The stepping up of their pay on par with the juniors in the Finance Unit by upgrading the posts held by them to the scale of pay applicable to the junior ordered in sub-para (1) above is purely a person-oriented up-gradation and no new posts will be created for this purpose. (iii) The up-gradation sanctioned for the seniors will lapse in the event of the retirement of the individuals concerned or their promotion to the upgraded post in their normal turn. (iv) The pay of the other seniors in the One Unit in the same cadre will be stepped up on par with immediate juniors in the Finance Unit, with effect from the date of issue of this order. (v) In respect of the Typists/Personal Clerks/Personal Assistants, in One Unit who have not relinquished their right for promotion as Assistant Section Officer, and are still awaiting their turn for promotion as Assistant Section Officer, their pay shall be upgraded to Assistant Section Officer scale on par with their immediate junior in the Finance Unit who got his promotion as Assistant Section Officer. 11. The benefits of up-gradation of pay of the seniors on par with their juniors as per Commission's Seniority list ordered in sub-paras (i) to (iv) of Para 10 above, shall also be extended to those seniors in the Finance Unit who were recruited before 28.1.1994 and or drawing less pay than their juniors in One Unit. 12. The up-gradation ordered above is subject to the following terms and conditions : (1) The up-gradation ordered will involve only stepping up of pay of the senior on par with his junior in the upgraded scale of pay. (2) It does not entitle him to any claim for arrears of pay. 12. The up-gradation ordered above is subject to the following terms and conditions : (1) The up-gradation ordered will involve only stepping up of pay of the senior on par with his junior in the upgraded scale of pay. (2) It does not entitle him to any claim for arrears of pay. XXX XXX XXX These orders shall come into force with effect from the date of issue of the orders. 13 ... 14. The Departments of Secretariat concerned shall issue necessary orders for up-gradation of posts and for stepping-up of the pay of the Seniors in One Unit in the upgraded scales ordered in para 10 above, after obtaining necessary individual undertaking in the format enclosed from the seniors concerned to the effect that they accept the terms and conditions of this order." 15. In the aforesaid case, the respondents in the civil appeal made representations before the State of Tamil Nadu demanding fixation of their pay at par with their juniors in the Finance Department. Since the said request was not acceded to, a large number of original applications were filed before the Tamil Nadu Administrative Tribunal. By a common judgment pronounced on 20.1.2004, the Tribunal dismissed the said applications opining that the same were barred by limitation. It was held that the applicants having retired long back and having filed applications between 1998 to 2003 and the promoters having retired as Under Secretaries, Deputy Secretaries and Joint Secretaries and in some cases as Additional Secretaries, they should have raised the dispute long back when their juniors had been given promotions in the Finance Department and as the original applications were filed after 20 years, the same could not be entertained. 16. However, the High Court in the writ petition filed before it against the order of the Tribunal by its judgment dated 21.04.2006 held that the cause of action for filing the original application arose only upon issuance of GOMS No. 126 dated 29.05.1998 and in that view of the matter, it cannot be said that the original applications filed by the respondents suffered from delay and latches and/or otherwise barred by limitations as GOMS No. 126 applied also in respect of those who had retired before 29.05.1998. It was also opined that the respondents who had not been in service on or before 28.01.1994 came within the scope and ambit of the said GOMs. 17. It was also opined that the respondents who had not been in service on or before 28.01.1994 came within the scope and ambit of the said GOMs. 17. The order passed by the High Court was challenged by the State of Tamil Nadu before the Apex Court by filing Civil Appeal No. 1938 of 2007 which was allowed by the Apex Court holding that the view taken by the High Court that the original applications preferred by the respondents therein was not barred by latches, was erroneous. 18. In the case of Seshachalam (supra), the Apex Court had taken note of the fact that the respondents in the Civil Appeal had retired much before the issuance of GOMS No. 126 dated 29.05.1998. 19. The aforesaid case is of no help to the petitioner/respondent. In the instant case, firstly the petitioner/respondent was communicated the decision of the Efficiency Bar Committee withholding his 'Efficiency Bar' w.e.f 01.02.1977 on 14.01.1987. The petitioner/respondent had filed a representation before the appellant/respondent no. 2 promptly which was followed by reminders dated 24.01.1994, 08.02.1994 and 14.11.1994 and his representation was finally rejected by the appellant/respondent no. 2 by order dated 19.04.1995 whereupon he had filed the writ petition giving rise to special appeal. Hence, we do not find that petitioner/respondent was guilty of any latches. 20. The second case M.K. Sarkar (supra) relied upon by the learned counsel for the appellants is also not applicable to the facts and circumstances of the present case inasmuch as in the case of M.K. Sarkar (supra), the respondent/petitioner had joined the Railway service on 10.02.1947 and was a subscriber to Contributory Provident Fund Scheme. Railways introduced the pension scheme vide Railway Board's letter dated 16.11.1957. Under the said scheme, those who entered Railway service on or after 16.11.1957, were automatically governed by the pension scheme. Those employees who were in service as on 1.4.1957 and those who joined between 1.4.1957 and 16.11.1957 were given an option to switch over to pension scheme instead of continuing under the Contributory Provident Fund Scheme. Those who did not opt for the pension scheme were given further opportunities to exercise options to switch over to the pension scheme, whenever the pension scheme was liberalized or made more beneficial, vide Notifications dated 17.9.1960, 26.10.1962, 17.1.1964, 3.3.1966, 13.9.1968, 15.7.1972, and 23.7.1974. Those who did not opt for the pension scheme were given further opportunities to exercise options to switch over to the pension scheme, whenever the pension scheme was liberalized or made more beneficial, vide Notifications dated 17.9.1960, 26.10.1962, 17.1.1964, 3.3.1966, 13.9.1968, 15.7.1972, and 23.7.1974. The validity period of the Eighth Option under Notification dated 23.7.1974, which was from 1.1.1973 to 22.1.1975, was extended from time to time upto 31.12.1978. The respondent though aware of the introduction of the pension scheme and the options given on eight occasions between the years 1957 to 1974, consciously did not opt for the pension scheme and continued with the Contributory Provident Fund Scheme and even after taking voluntary retirement while serving as Controller of Stores with effect from 15.10.1976, did not opt for the pension scheme but received the Contributory Provident Fund dues on his retirement and more than 22 years after his retirement, he made a representation dated 8.10.1998, requesting that he may be extended the benefit of the pension scheme. He stated that he was willing to refund the amount received under the Provident Fund Scheme (by way of adjustment against the arrears of pension that would become payable to him on acceptance of his request for switch over to the pension scheme). The said request was not accepted. The respondent therefore approached the Central Administrative Tribunal, in OA No. 657 of 1999, seeking a direction to the Railway Administration to permit him to exercise an option to switch over to pension scheme. The Tribunal by order dated 11.2.2004 disposed of the application by directing the appellants to take a decision on the representation of the respondent by a reasoned order. The Chairman, Railway Board rejected the respondent's claim by passing a reasoned order dated 15.05.2004 as untenable. The order dated 15.05.2004 was challenged before the Tribunal by filing a second application which was allowed on the ground that similarly placed railway employees had been given option to switch over to the pension scheme even after the extended time for opting had expired and directed the appellant to permit respondent to opt for pension scheme. The order of the Tribunal was challenged by the Union of India before the Apex Court in WP (CT) No. 467/2005 which was dismissed by the High Court by order dated 25.01.2006. The order of the Tribunal was challenged by the Union of India before the Apex Court in WP (CT) No. 467/2005 which was dismissed by the High Court by order dated 25.01.2006. The Union of India challenged the orders of the Tribunal and the High Court before the Hon'ble Supreme Court and the Hon'ble Supreme Court set-aside the orders passed by the Tribunal and High Court and held that a claim on the basis of guarantee of equality, by reference to someone similarly placed, is permissible only when the person similarly placed has been lawfully granted a relief and the person claiming relief is also lawfully entitled for the same but where a benefit was illegally or irregularly extended to someone else, a person who is not extended a similar illegal benefit cannot approach a court for extension of a similar illegal benefit. 21. The aforesaid case is also of no assistance to the petitioner/respondent in view of the fact that the petitioner/respondent in this case has neither claimed any illegal benefit awarded to any similarly placed person nor it can be said that there was any inordinate and unexplained delay on his part in approaching this Court. 22. We do not find any merit in the aforesaid submission. The learned Single Judge rightly held that since the petitioner/respondent was communicated the decision of withholding the 'Efficiency Bar' by letter dated 14.01.1987 against which he had made representation on 21.01.1987 and thereafter sent reminders and since his representations were decided as late on 19.04.1995 and the writ petition was filed on 30.05.1995, before the communication of decision of the appellant/respondent no. 2 on the petitioner/respondent's representation, he had no cause of action for filing writ petition and hence, there were no latches. 23. In order to appreciate the second ground on which the learned counsel for the appellants has challenged the order passed by the learned Single Judge, it would be useful to extract Fundamental Rules 24 and 25 of the Financial Hand Book :- "24. An increment shall ordinarily be drawn as a matter of course unless it is withheld.- An increment may be withheld from a Government servant by the Government, or by any authority to whom the Government may delegate this power under Rule 6, if his conduct has not been good or his work has not been satisfactory. An increment shall ordinarily be drawn as a matter of course unless it is withheld.- An increment may be withheld from a Government servant by the Government, or by any authority to whom the Government may delegate this power under Rule 6, if his conduct has not been good or his work has not been satisfactory. In ordering the withholding of an increment, the withholding authority shall state the period for which it is withheld, and whether the postponement shall have the effect of postponing future increments. 25. 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.” 24. There is no dispute about the fact that on completion of 14 years continuous service, the petitioner/respondent became entitled for time pay scale subject to his crossing of the 'Efficiency Bar' under the service rules governing his service w.e.f 01.02.1977 and next time pay scale was due on 01.02.1987. There is also no dispute about the fact that 'Efficiency Bar' is required to be assessed on the basis of 'Annual Confidential Report' and in the absence of any entry in the service book or any other disciplinary proceeding taken against the employee, it cannot be said that there was any material before the appropriate authority to assess the work and conduct of the employee. 25. Record shows that the petitioner/respondent was not allowed to cross the 'Efficiency Bar' by the competent authority as upon assessment of his entire service record, his work and conduct was not found satisfactory. The arguments of Sri Navin Sinha has been repelled on the ground by Sri I.P. Singh, learned counsel for the respondent by arguing that it is proved from the own documents of petitioner/respondent that the competent authority in the petitioner/respondent's case had not assessed the work and conduct of the petitioner/respondent either in the year 1977 or in the subsequent years while letter dated 14.01.1987 was issued informing the petitioner/respondent that he was not allowed to cross the 'Efficiency Bar' w.e.f. 01.02.1977 although his service book was totally blank. In this regard, it would be relevant to refer to letter dated 19.04.1995 issued under the signature of one V. Narasimhan, Registrar in paragraph no. In this regard, it would be relevant to refer to letter dated 19.04.1995 issued under the signature of one V. Narasimhan, Registrar in paragraph no. 2 whereof that the service book of the petitioner/respondent has been brought upto date and entries are duly authenticated and he is advised to sign the service book as required. Copy of the letter dated 19.04.1995 has been brought on record as Annexure No. 9 to the writ petition. 26. Upon perusal of the letter dated 19.04.1995, it is crystal clear that before the year 1995 and issuance of the aforesaid letter, the service book of the petitioner/respondent was neither upto date nor entries made therein were duly authenticated. 27. Thus, service book of the petitioner/respondent was not filled up in 1977 and remained blank till 1994. 'Annual Confidential Report' is required to be recorded in the service book of the employee once in every year. On completion of 14 years continuous service, the petitioner/respondent was entitled for 'time pay scale' subject to crossing of 'Efficiency Bar' under his Service Rules w.e.f 01.02.1977 and next time pay scale was due on 01.02.1987. 'Efficiency Bar' is required to be assessed on the basis of 'Annual Confidential Report'. In the absence of any entry in the service book or any other disciplinary proceeding taken against the petitioner/respondent, there would not have been any material before the appropriate authority to assess work and conduct of the petitioner/respondent. The order withholding 'Efficiency Bar' of the petitioner/respondent was not based upon any relevant material. In paragraph-15, 16 and 17 of the counter affidavit bald statements have been made that Efficiency Bar Committee reviewed the efficiency of the petitioner/respondent from time to time and recommended to withhold it which has been accepted by the Director. Neither recommendation of Efficiency Bar Committee nor decision of Director has been placed on record. 28. Fundamental Rule 25 requires that in case, the employee is not able to cross 'Efficiency Bar' in the year in which time pay scale is due then in every subsequent year 'Efficiency Bar' is required to be examined. But in this case nothing has been done. Supreme Court in O.P. Gupta Vs. 28. Fundamental Rule 25 requires that in case, the employee is not able to cross 'Efficiency Bar' in the year in which time pay scale is due then in every subsequent year 'Efficiency Bar' is required to be examined. But in this case nothing has been done. Supreme Court in O.P. Gupta Vs. Union of India, AIR 1987 SC 2257 , held that it must follow that when a prejudicial order is made in terms of Fundamental Rule 25 to deprive the government servant like the appellant of his increments above the stage of efficiency bar retrospectively after his retirement, the government has the duty to hear the concerned government servant before any order is made against him. 29. Supreme Court in M. Gopala Krishna Naidu Vs. State of M.P., AIR 1968 SC 240 and State of U.P. Vs. Dr. K.U. Ansari, AIR 2002 SC 208 , held that an objective consideration and assessment of all the relevant facts and circumstances is required before any order withholding 'Efficiency Bar'. Character role in Service Book is the primary material. In this case, the character role was blank till 1994. Thus there was no primary material to withhold the 'Efficiency Bar'. 30. The principles laid down by the Apex Court in the case of Haryana Warehousing Corporation (supra) upon which reliance has been placed by the learned counsel for the appellants has no application to the facts and circumstances of the present case inasmuch as the petitioner/respondent does not challenge the order impugned by him before the Single Judge on the ground of denial of personal hearing by the appellants. 31. Learned Single Judge while coming to the conclusion that the order withholding 'Efficiency Bar' of the petitioner/respondent was not based on any relevant material, has referred to paragraph nos. 15, 16 and 17 of the counter affidavit in which it was averred that Efficiency Bar Committee reviewed the efficiency of the petitioner/respondent from time to time and recommended to withhold the 'Efficiency Bar' which was accepted by the Director. Learned Single Judge has further observed that neither any recommendation of Efficiency Bar Committee nor decision of Director were brought on the record. 32. Thus, the second ground on which Sri Navin Sinha, learned counsel for the appellants has challenged the order passed by the learned Single Judge is also without any merit. 33. Learned Single Judge has further observed that neither any recommendation of Efficiency Bar Committee nor decision of Director were brought on the record. 32. Thus, the second ground on which Sri Navin Sinha, learned counsel for the appellants has challenged the order passed by the learned Single Judge is also without any merit. 33. In view of the foregoing discussion, we find that the order passed by the learned Single Judge does not suffer from any illegality or legal infirmity requiring any interference by this Court. 34. This appeal lacks merit and is accordingly dismissed.