1996 INSC 1275
                                                      S. K. Vaish

                                                           Vs

                                             Union of India and Others

                                            SLP (C) No. 19774 of 1996

                              (K. Ramaswamy, G. B. Pattanaik, Faizanuddin JJ)

                                                      11.09.1996

                                                        ORDER

1. Delay condoned.

2. This special leave petition has been filed against the order dated 15-2-1996 made in OA No. 978
of 1992 of the CAT, Principal Bench, New Delhi. The admitted position is that the petitioner after
his promotion as Assistant Engineer in Telecom Engineering Service Group 'B' on 16-4-1979 was
kept under suspension and disciplinary proceedings were initiated against him. On 30-6-1986,
punishment was imposed by way of compulsory retirement. The same came to be challenged by
way of an appeal. On appeal, the Department directed that the punishment be treated partly as
suspension and partly as in service by proceedings dated 16-2-1989. When the petitioner challenged
the same OA No. 1690 of 1990, by order dated 14-2-1992, the same was allowed and direction was
given to treat him as on duty for all purposes including pay and allowances. After reinstatement, the
petitioner retired from service on attaining superannuation on 31-5-1992. He had prior to that filed
representation for crossing his efficiency bar. In the impugned order, the Tribunal has held that the
DPC had considered his case for efficiency bar and found him not fit and, therefore, he is not
entitled to the relief. Thus, this special leave petition.

3. It is contended by the learned counsel for the petitioner that when he was reinstated into service
the efficiency bar was required to be considered after taking into account his subsequent record.
What was stated was adverse entries for the years 1979-80, 1980-81, 1981-82. There was no
reconsideration in the light of the direction issued by the Ministry in the letter dated 18-9-1991 in
OM No. 7(28)/EIII/91 that all pending cases should be considered to bring the pending cases of the
employee so as to bring them on a par with the scale of pay recommended by the 4th Pay
Commission. The petitioner had given a representation but the same was not considered; even
direction given to produce the record was not followed. Therefore, the Tribunal ought to have
drawn adverse inference against the Government and should have directed that he was entitled to
cross the efficacy bar. He also contended that the sealed cover procedure as is in vogue should have
been adopted for crossing the efficiency bar and kept pending when the departmental enquiry was
pending against him.

4. We find no force in the contention. The petitioner has not brought to our notice any circular
issued by the Government and it is obviously incongruous for the reason that in the event of the
petitioner's disciplinary proceedings becoming final, the exercise to consider the question of
crossing the efficacy bar would be fruitless. It would be unnecessary to consider the case for
efficiency bar. It would be only in the event of his being reinstated in the service that the question of
consideration of his crossing the efficiency bar would arise. Therefore, the sealed cover procedure in
consideration of question of efficacy bar does not apply. It is seen that after the representation was
made by the petitioner on 8-6-1990, the matter was referred for consideration by the DPC. The DPC
had met on 21-1-1992 and considered the record of the petitioner. After reinstatement, he had hardly
worked for three months. It would appear that for three successive years, there were adverse entries
against the petitioner. Consequently, DPC as considering the record of the petitioner which was
available, recommended that he was unfit to cross the efficiency bar. The same came to be informed
to the petitioner vide letter dated 7-2-1992. The Tribunal also had accepted this position. Under
these circumstances, we do not find any illegality in the order passed by the Tribunal warranting
issue of notice.

5. The special leave petition is dismissed.