S.A. Shah, J.
1. The petitioner was working as Block Development Officer and Taluka Development Officer during the period 1960 to 1967. In the year 1967 the petitioner was posted as Chitnis to the Collector, Baroda.
2. According to the averments of the petitioner prior to his appointment as Chitnis to Collector he had never worked on the Revenue side in Collector's office. However, he had not received any adverse remarks till the year 1972. Therefore, he had reason to believe that his work must be not only satisfactory but it must be good because according to the Government Resolution dated Match 8, 1969 gradation fair' is considered a remark which is to be communicated to this employee concerned.
3. It appears that the petitioner was due for crossing Efficiency Bar on or about 19-10-1971 and he was not allowed to cross the E.B. The petitioner contended that he received a communication dated April 5, 1973, for the first time, by which he was informed that:
You are not found effective in oral discussion. You are also required to display great initiative and resourcefulness coupled with greater capacity for organisation to tackle the difficult problems of yout taluka more effectively.
Gist of the C.R. is as under:
You possess fairly good clarity of thoughts and expression on paper and good ability in noting and drafting in Gujarati. You are successful in handling the problems in a big taluka like Viramgam inspite of having inadequate strength of staff. Your performance in respect of disposal of Govt, waste lands, collection in small savings, civil supplies etc., if found to be satisfactory. You are found to be sober and hardworking officer.
4. It appears that no grading is given in this communication. On reading the communication the prima facie impression one gets is that the officer's performance is more than average and it may be good even. However, the State Government in its show-cause notice dated 15-12 1976, Annexure-A to the petition, appears to have omitted this remark against the petitioner for considering his case for crossing efficiency bar. Except this communication the petitioner has not received any communication regarding adverse remarks.
5. It has now been well settled by numerous decisions of the Supreme Court and the decision of this Court, particularly in the case of Dr. B.R. Kulkarni v. Government of Gujarat and Ors. 19 G.L.R. 1021 The following proposition can be culled out from the above judgment:
(1) That the remarks must be communicated to the concerned Government servant as early as possible so that he can make improvement in his performance;
(2) that the remarks which are communicated after the relevant period should be ignored; and
(3) if the representation made against the adverse remarks has not been disposed of, such remarks cannot be validly taken into consideration for assessing the performance of the officer.
6. I am, therefore, of the opinion that if the remarks have not been communicated in time by the competent authority such remarks could not have been taken into consideration for assessing the performance of the petitioner. However, in this case the Government itself has taken a policy decision and issued Government Circular dated 10th April, 1964 and Government Resolution dated 20th January, 1972. Since the Resolution dated 20th January 1972 being comprehensive I will reproduce the relevant portion for the purpose of this petition.
The Government servent whose standard of work in the post is satisfaction should be graded as 'Fair'. Government is now pleased to direct in supersession of the previous instructioins, 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.
7. If we now turn to the show-cause notice issued by the Government dated 15-12-1976, nowhere it is mentioned that the performance of the petitioner was below average or poor. He is graded 'fair' and as per the aforesaid resolution unless a person is graded below average or poor his Efficiency Bar cannot be stayed. In the instant case the decision of the Government in not allowing the petitioner to cross efficiency bar is wrong on both the grounds, namely, that it is against the policy decision taken by the Government by its resolution dated January 20, 1972 and the competent authority has relied upon the confidential remarks which are not communicated to the petitioner in time which according to the settled legal position cannot be considered for the purpose of assessing the performance of the officer concerned.
7.1 The Government has not filed any affidavit in this petition. Though the Government has not filed any affidavit, Mr. Jadeja, learned advocate appearing on behalf of the State Government states that it is not disputed that the adverse remarks were ever communicated prior to 1972 and the Government is relying upon the contents of the show-cause notice dated 15-12-1976. This means that the State Government has no defence. In view of the resolution dated January 20, 1972 the petitioner is entitled to cross Efficiency Bar for the reasons stated above.
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 Efficiency Bar on the due date. If the petitioner has been compulsorily retired he will be entitled to his pension and retirement benefits on the basis that he has crossed Efficiency Bar on 19-10-1971 with all financial benefits available to him. Since the matter is pending since 1977 the Government shall pass necessary orders and grant the benefits to the petitioner within four months from the date of receipt of the writ. Rule is made absolute with costs.