1. The petitioner is serving as a District Health Officer in the District Panchayat at Bulsar in the pay scale of Rs. 1100-1600 in Class I post. It is his case that he joined service as Medical Officer Class II on 14th December, 1960. Subsequently he was selected by the Gujarat Public Service Commission and was appointed by the Government by an order dated 11th June, 1962. From 25th April, 1963 the petitioner was working as a Regional Malaria Officer which was Class II post at the relevant time but subsequently the said post is upgraded and is considered as Class I post. Thereafter one Dr. Gajjar and Dr. S. B. Trivedi were promoted to the post of Assistant Director of Public Health Services by the Government by its order dated 6th February, 1980. It is the case of the petitioner that he was senior to the aforesaid two persons. Therefore, he made inquiries from the department why he was excluded from the promotion. Finally he filed Special Civil Application No. 1211/80 before this Court. The said matter came up for hearing before P. D. Desai, J. as he then was, on 29th August, 1980. On that matter Court had passed the following order :
'Mr. M. S. Shah, learned Advocate appearing on behalf of respondents 1 and 2, states that at the material time when the petitioner's case for promotion was considered by the Selection Committee, a departmental inquiry against the petitioner was under contemplation and that the factor was also taken into consideration by the Selection Committee. Mr. Shah states that in view of the decision of this Court in Special Civil Application No. 277 of 1980 Dr. D. N. Chaterjee v. State of Gujarat (reported in 1981 Lab. I.C. (NOC) 133) the petitioner's case for promotion would be again considered by the Selection Committee and that the benefits available to him under the principles laid down in the said decision would be given to him to the extent applicable.
With regard to the dispute of seniority between the petitioner and respondents 3 and 4, Mr. Shah states that the State Government would determine the said dispute after giving to the affected parties an opportunity making a representation. The decision on the question will be taken within a period of three months from today.
In view of this statement, Mr. Anand withdraws the petitions.'
2. It is the case of the petitioner that in spite of the direction in the aforesaid Special Civil Application the petitioner was not considered for promotion and, therefore, he has filed this Special Civil Application praying :
(1) to direct the respondents to fix the seniority of the petitioner correctly and to publish the final seniority list immediately;
(2) to direct the respondents to allow the petitioner to cross Efficiency Bar with effect from 1st January, 1977 and to release the increments of the petitioner accordingly;
(3) to direct the respondents to give to the petitioners immediate promotion to the post of Assistant Director of Public Health either by way of departmental promotion or by way of direct recruitment with in deemed date.
3. At the time of hearing of this petition, with regard to his contention of seniority the learned advocate has not pressed the said point on the ground that the Government has not still finalised the seniority list and that he has already filed his representation against the fixation of provisional seniority list on 5th September, 1980 which he has produced on the record of this case at Annexure 'D'. It is his say that Dr. Gajjar and Dr. Trivedi are juniors to him. As the Government has still not finalized the seniority list, it would be open to the Government to decide the seniority after taking into consideration the representations of the petitioner with regard to his case and, therefore, the learned advocate for the petitioner has rightly not pressed this point at this stage.
4. It is an admitted fact that the petitioner is not allowed to cross Efficiency Bar since 1st January, 1977. In Affidavit in reply it has been pointed out that the petitioner's case regarding Efficiency Bar was repeatedly considered, but for the reasons stated in the confidential report the petitioner was not allowed to cross Efficiency Bar. Every year the department has found him unfit for allowing him to cross Efficiency Bar. The learned Assistant Government Pleader pointed out that the department is relying upon Resolution No. CEB/1071/5060 G, D/- 20th January, 1972 for not permitting the petitioner to cross Efficiency Bar. As per the said resolution the Government has directed that for the purpose of allowing Government servants to cross the Efficiency Bar, the Competent Authority should make an overall assessment of the Annual Confidential Reports of the person due to cross the Efficiency Bar, relating to the period of his service in the 'Scale of Pay' in which it is proposed to allow the crossing of Efficiency Bar, and particularly those relating to his service during the previous three years so as to satisfy itself that the person's service has been reasonably 'satisfactory' and not 'below average' or 'poor'. From this resolution it is clear that if the confidential report of the persons is not below average or poor and that his service has been reasonably satisfactory, a person is required to be permitted to cross Efficiency Bar. At the time of hearing of this petition, the learned Government Pleader had given me an extract of confidential report after taking instructions from the concerned officer. As per the aforesaid resolution the Government is required to take into consideration the overall asses sment of confidential reports of previous three years' service. The overall assessment of previous three years' confidential reports reads as under :
Period Remarks------- -------1. 1.7.74 to 17.6.74 Very good2. 17.6.74 to 26.9.74 Very good3. 27.9.74 to 31.3.75 Good4. 30.6.75 to 31.3.76 Below average(This remark of 'below average' wasexpunged by the Government by its orderdated 24th January, 1978).5. 1.7.76 to 6.1.77 Good
From these remarks by no stretch of imagination it can be said that the petitioner's services were not reasonably satisfactory or that they were below average or poor.
5. It is further an admitted fact that before passing an order not allowing the petitioner to cross Efficiency Bar, no opportunity of hearing was given to the petitioner. It is well established by a series of judgments of this Court and also the Supreme Court that the superior officers would not stop a subordinate from crossing his Efficiency Bar unless he has been given an opportunity of being heard. (Reference may be made to B. S. Sharma v. Union of India, [1972-II L.L.J. 184], L.P.A. No. 119 of 1973 decided on 28th September, 1976 by Obul Reddi, C.J. as he then was, and N. H. Bhatt, J., Dr. B. R. Kulkarni v. Government of Gujarat, (1979 Lab I.C. 223), T. C. Bhargav v. State of Gujarat, 1984 Guj. L.H. 84, and Kantilal G. Shah v. State of Gujarat, (1985 Lab I.C. 625). In this view of the matter, the contention of the petitioner that the petitioner is illegally not permitted to cross Efficiency Bar requires to be accepted.
6. The learned advocate for the petitioner next contended that as per the recruitment rule framed by the Government which is produced at Annexure 'A' to the Affidavit in reply filed by the Government, the District Health Officers and Medical Officers of Health, who have put in at least 5 years of satisfactory service in the Public Health Department, out of which 3 years should be in the cadre of District Health Officers, are entitled to be promoted to the post of Assistant Director of Public Health in Gujarat Public Health Service Class I. The said recruitment rule for promotion reads as under :
'(1) Appointment shall be made either :-
(A) By promotion from amongst the District Health Officer and Medical Officers of Health, who have put in at least 5 years of satisfactory service in the Public Health Department, out of which 3 years should be in the cadre of District Health Officers or
(B) By nomination.'
It is the case of the petitioner that in 1980 when he filed Special Civil Application No. 1211/80, the Court had in terms directed that the Selection Committee would consider the case of the petitioner for promotion as per the decision of this Court in the case of Dr. D. N. Chatterji v. State of Gujarat reported in 21(2) Guj. L.R. 108 : (1981 Lab. I.C. (N.O.C.) 133). At that time the departmental enquiry was pending against the petitioner. Subsequently it is an admitted position that the Government had fully exonerated the petitioner. In Affidavit in reply it has been stated that when Dr. Trivedi and Dr. Gajjar were promoted on 6th February, 1980 the petitioner's case was considered by the Selection Committee for the purpose of promotion but the Selection Committee had found that he was not fit for the purpose of promotion to the aforesaid post. In 1984 also the petitioner's case was considered.
7. Now the confidential reports for five years prior to 1980 read as under :
Period RemarksReporting Officer Reviewing Officer27.9.74 to 31.9.75 Good Good30.6.75 to 31.3.76 Below Average (Expunged by Government)1.7.76 to 6.1.77 ----- Good1.4.77 to 31.3.78 Good The officer is not clear at atime in his decision as aresult confuses the issue.1.4.78 to 2.7.78 ----- Average Officer1.4.79 to 12.6.79 Not satisfactory Average Officer8.8.79 to 31.3.80 A very typical officer Average Officerassuming unconcernedapproach in day-to-dayadministrationThe gradings in subsequent confidential reports are also as under : 1.4.80 to 30.10.80 A fairly good officer Officer doing routine worknot outstanding work.1.12.80 to 31.3.81 A good worker Agree with ReportingOfficer1.4.81 to 31.3.82 (Matter in vernacularomitted - Ed.)(............) Good1.4.82 to 31.3.83 (Matter in vernacularomitted - Ed.)(............) Good worker---------------------------------------------------------------------
From the aforesaid confidential reports it will be difficult to arrive at the conclusion that the petitioner is not satisfying the criteria laid down by the recruitment rule which is annexed to the Affidavit in reply filed in this petition. Admittedly the petitioner is holding the post of District Health Officer since 1969. Prior to that also he was working as R.M.O. which is also a Class I post equivalent to District Health Officer's Post. Therefore, in 1980 he was holding the post of District Health Officer since last more than 11 years. His aforesaid record also reveals that his service was satisfactory. At no stage his service was below average or poor. One adverse remark of below average for the period from 30th June, 1975 to 31st June, 1976 was subsequently expunged by the Government. It seems that the Selection Committee has not taken into consideration the criteria laid down by the recruitment rules for promoting the petitioner to the post of Assistant Director of Public Health. In the case of Dr. B. R. Kulkarni v. Govt. of Gujarat (supra), while considering the grading in the confidential report, the Court has observed that a person who is considered to be fairly up to the expected standard for satisfactorily working in the post should be graded as 'Fair' and a person who falls short of such standard but whose work is not so bad is to be graded as 'Below Average'. There being only one grade namely, 'Below Average' between 'Fair' and 'Poor' and there being no separate grade as 'Average', 'Fair' or 'Average' are not to be treated as separate grades. Therefore, 'Average' grading in Confidential Report is to be considered as satisfactory service. Even for crossing Efficiency Bar the Government has passed the Resolution on 20th January, 1972 wherein it has been stated that the Government servant whose standard of work in the post is satisfactory should be graded as 'fair' and for satisfying that the person's service has been 'reasonably satisfactory', the grading should not be 'below average' or 'poor'. The learned Govt. Pleader, however, submitted that the phrased 'satisfactory service' used in the recruitment rule is not defined anywhere but it would mean that the service of the concerned Govt. Officer should be of good grade. After taking instructions from the concerned officer he further submitted that the Selection Committee is relying upon the Circular No. SLT-1175-G, D/- 1st December, 1975 issued by the Government for preparing select list for promotion to a higher post. The relevant portion is as under :
'As per the existing instruction relating to the preparation of select lists, a candidate for inclusion in the select list for promotion to a higher post should, among other things, have positive merit, i.e. his performance must at least be 'good' and not just 'fair' or 'average'. There may be cases where the performance can neither be adjudged 'good' nor 'average' and it may be somewhere in between, e.g. a case where the grading given in the C.R. have been fluctuating between 'good' and 'fair' at short intervals. It is hereby directed that in any marginal cases where there are reasons to doubt whether the performance of a candidate can be decided to be good enough for promotion or not, such a candidate should not generally be included in the select list or promoted.'
It is very sordid affair that when the recruitment rules provide that an officer who has put in at least 5 years of satisfactory service in Public Health Department is entitled to be promoted, is interpreted by the Selection Committee to mean a person having positive merit i.e. his performance must at least be 'good' and not just 'fair' or 'average'. From this it appears that the Government or the Selection Committee has not applied proper test for considering the case of the petitioner for promotion.
It seems that there is total non-application of mind on the part of the concerned Government Officers at the time of considering the petitioner's case for promotion to the recruitment rules. They have not considered the case of the petitioner on the proper criteria laid down by the recruitment rules. Therefore, the order passed by the Government in not promoting the petitioner is wholly illegal and arbitrary.
8. In the result, the petition is allowed. The State Government is directed to allow the petitioner to cross Efficiency Bar and grant him due increments and difference in salary as if he had crossed the Efficiency Bar from 1st January, 77. It is further directed that the State Government should consider the case of the petitioner for promotion to the post of Assistant Director of Public Health as on 6th February, 80 after taking into consideration the recruitment rules annexed to this petition and grant him all consequential benefits that may be available on such higher post if the petitioner is promoted. As the petitioner had previously filed the Special Civil Application No. 1211/80 which he withdrew on the assurance given by the Government and is required to file this fresh Special Civil Application, it is directed that the State Government shall carry out the aforesaid direction within two months from today without fail. Rule made absolute with a specific direction that the Government shall pay to the petitioner quantified costs of Rs. 1,000/- as there is total non-application of mind in deciding the case of the petitioner for promotion and that the petitioner was not allowed to cross Efficiency Bar without any reason since 1977 and due to this it is clear that the petitioner has suffered a lot.