Tauqeer Ahmed Khan, Member Above-named appellant has approached this tribunal by way of this appeal under Section 4 of the Service Tribunals Act, 1973, with the following prayers: "1. That this Hon'ble Tribunal may order the FA&CAO MoR to call back the appellant to PRAD and process her promotion case from 11.12.2020 respectively.
2. That this Hon'ble Tribunal may order to grant all back financial benefits from 11.12.2020.
3. That this Hon'ble Tribunal may grant condonation of delay of three and half months period in filing of this appeal.
4. That this Hon'ble Tribunal may grant any other relief as it deems necessary".
2. Facts of the case, as stated in the memo of appeal are that the appellant, after qualifying test/examination of Federal Public Service Commission (FPSC), was appointed as Senior Auditor (BS-16) in Pakistan Railways Accounts Department (PRAD) on 21.11.2017 and posted in the office of Divisional Accounts Officer (DAO), Railways, Karachi. The PRAD is a subordinate office of Controller General of Accounts (CGA) for administrative purpose, receiving pay and allowances from Ministry of Railways, Government of Pakistan.
The appellant possesses education/qualification as MBA (Finance), CA Intermediate, PIPFA Corporate Sector and PIPFA Public Sector in Railways Accounts specific subjects. She was performing usual duties efficiently, when all of a sudden, in September, 2021, she was intimated that 422 employees including herself were surrendered by Ministry of Railways and withdrawn by CGA.
This has been done according to the police of rationalization of Pakistan' Railways Accounts Department. The surrendered/withdrawn employees have been posted, on temporary transfer basis, in various accounts offices, falling under CGA. The appellant was posted in A.G. Sindh, Karachi; hence, she is presently working with A.G. Sindh. Before her transfer from PRAD, appellant qualified/passed Pakistan Institute of Public Finance Accounts (PIPFA) Examination on 03.01.2020 and according to Promotion Policy/Rules, became eligible/entitled for promotion as Assistant Accounts Officer (B-17). For effecting promotion of the appellant from Senior Auditor to Assistant Accounts Officer, the DAO Karachi prepared working papers for DPC. The DPC meeting was convened on 11.12.2020 and considered the proposals for promotion of ten Senior Auditors including the appellant. As per policy/rules, requirements for promotion in case of appellant were; (i) qualification/passing of PIPFA examination, (ii) completion of three years' service in Senior Auditor and (iii) availability of updated performance evaluation report of last three years. Appellant complied with all the above conditions on 20.11.2020, when DPC was convened to consider the promotion of ten Senior Auditors including the appellant, but, despite compliance of all requirements, DPC deferred the promotion of appellant due to non-availability of Performance Evaluation Report (PER) for the year 2020 or partial PER upto 30.11.2020. It is evident that as per Rules, completion of PERs was the responsibility of PRAD/DAO Railways Accounts, Karachi.
When the deferment of promotion was agitated by the appellant, verbally, the concerned quarters, instead of admitting the lapse, justified non-submission of PERs to the DPC on the plea that writing of PERs was not possible before 1st January of the subsequent calendar year and that therefore, writing PER of the appellant covering the period from 01.01.2020 to 30.11.2020 (11 months) was not permissible under the law. It was stated that the said contention of the quarter concerned was incorrect, unjustified and discriminatory as the rules do provide that where necessary, partial writing of PER was permissible, but due to unknown reasons, the Admin Section of DAO Railways Accounts, Karachi, not only failed to get the PER of the appellant for the above-said period completed, but also submitted incomplete working papers of the appellant without relevant PER.
In Ground No. 17, it was pleaded by her that in March, 2021, she made representation to the FA&CAO, PR HQ, Lahore through proper channel, but despite lapse of several month, no reply from the quarter concerned was received; hence, this appeal.
In Ground No. 21, discrimination has been claimed as two Naib Qasids, like the appellant, transferred temporarily to different departments, have been called back in PRAD and promoted as Junior Auditors.
After taking some legal grounds in the appeal, it was finally prayed as under:- "1. That this Hon'ble Tribunal may order the FA&CAO MoR to call back the appellant to PRAD and process her promotion case from 11.12.2020 respectively.
2. That this Hon'ble Tribunal may order to grant all back financial benefits from 11.12.2020.
3. That this Hon'ble Tribunal may grant condonation of delay of three and half months period in filing of this appeal.
4. That this Hon'ble Tribunal may grant any other relief as it deems necessary".
3. Only Respondent Nos. 3, 4 & 6 have submitted their comments, but the remaining respondents failed to contest the matter.
4. In its comments, the Respondent Nos. 4 & 6 have mainly pleaded no comments by stating that the same relates to PRAD at some places.
5. The Respondent No. 3 in its comments have taken legal objections about the appeal being time barred and it being not maintainable. It was stated that PER was not possible before 1st January of the subsequent calendar year and partial PER was not permissible; submission of ACR/PER before reporting officer was the responsibility of appellant instead of the department; instructions for filling up the ACR forms item No. 2 was clearly stated that part-1 will be filled by the officer being reported upon and should be typed written; PER of one year (2020) was not available in the case of appellant at the time of meeting of DPC being not completed the period of ACR/PER i.e. one complete year; the appellant was considered and deferred due to her non-availability of ACR (2020); colleagues of the appellant were promoted after fulfillment of the whole criteria of promotion; appellant was transferred back into Pakistan Railway Accounts Department with the orders of CGA for consideration. Office of the CGA has called for the cases of promotion from all departments for holding of DPC at once to all.
On facts, it was admitted that the PRAD is subordinate office of CGA, Islamabad. Further admitted that CGA had taken over the Administrative & Budgetary control of Pakistan Railway Accounts Department vide notification dated 20.09.2021 and through further notification dated 30.09.2021, appellant including her colleagues were relieved from their duties in Pakistan Railways. Further stated that passing of PIPFA examination is not a sole eligibility criterion for promotion in higher scale as Assistant Accounts Officer (BPS-17). Admitted to the extent that the appellant was considered alongwith her colleagues in the meeting of DPC held on 11.12.2020. The appellant completed three years mandatory services just before 20 days of the meeting of DPC. PER of one year (2020) was not, available in the case of appellant at the time of the meeting, being not completed the period of PER i.e. one complete year. Meeting of DPC was held on 11.12.2020 and the period of PER of appellant for one year was completed on 31.12.2020; ipto-facto, she was considered by the DPC and deferred due to non-availability of ACR of 2020. It was submitted that submission of ACR/PER before the reporting officer is the responsibility of the appellant as stated in the instructions. It was further submitted that writing of required PER was not possible before 1st January of the subsequent calendar year and partial PER was also not permissible under the rule. It was further stated that recently the appellant has been transferred back into Pakistan Railways Accounts Department (PRAD) with. the orders of CGA and presently working at Divisional Accounts Office, Railways Karachi and that the composition of DPC for employees of PRAD (BS-1 to BS-18) was received from AO/Admn office of the CGA Islamabad vide letter Bearing No. 191/CGA/Admn- 1/PRAD/12-1-2021 dated 16.02.2022 and that the case of promotion of the appellant alongwith her colleagues has been sent to the office of CAG for consideration. Office of CGA has called for the cases of candidates from subordinate offices for holding of DPC at once. Case of the appellant will definitely be presented for consideration before the DPC in its meeting held in near future. Prayed to dismiss the appeal on consideration of the above submissions.
6. Arguments heard and record perused minutely.
7. On perusal of record, we find that the representation of the appellant dated 19.03.2021 duly forwarded vide covering letter dated 20.03.2021 has not been decided nor any order has been passed by the appellate authority i.e. FA&CAO, Pakistan Railways, Headquarters Office, Lahore. In its comments, the FA&CAO, it was only stated that the Controller General Accounts (CGA) is the administrative competent authority and simply 'not admitted' the contents of Para-17 of the appellant. In this connection it is stated that when the department itself had admitted submission of appeal by the appellant, then it was their duty to have forwarded the same to the proper authority. We are fortified in our view by the judgments reported in 2005 PLC (CS) 1042 and 1984 PLC
(CS) 485.
8. Keeping in view the facts and circumstances of this case we are not at the present adverting to the veracity or otherwise of the contentions raised in the memo of appeal or in the written comments. It may be mentioned here that the remedy of such an appeal is a statutory right of a civil servant which appeal is to be dealt with and decided by the Appellate Authority in accordance with the established norms. In a case earlier decided on 04.01.2016 (Appeal No. 1028(R)CS/2013) it was observed: "4. We feel it necessary to highlight the importance of a departmental appeal filed by a civil servant for the redressal of his grievance. It may be noticed that the very concept of "appeal" universally recognized is that the appeal is meant for reconsideration of the decision of the lower authority for reversal/review (Black's Law Dictionary, Seventh Edition, Page-94). Even the Hon`ble Supreme Court of Pakistan in the Chief Commissioner, Karachi and another vs. Mrs. Dina Sohrab Katrak (PLD 1959 SC (Pak. 45), when the question arose as to whether the right of appeal under Sindh (Requisition of Land) Act (XLVI of 1947), carried with it any inherent right of personal audience and hearing, held, "that the right of appeal being a vested right, the maxim Audi alterm partem applied to it, and the appeal could not be disposed of in Chamber without giving a right of a personal audience to the appellant, because if that hearing was not given it would tantamount to destroy his vested right in his absence". In the light of above observations of the Hon'ble Supreme Court the Lahore High Court in Syed Ali Abid Zaid and others vs. Deputy Settlement and Rehabilitation commissioner, Gujranwala and others (PLD 1967 Lahore 836) has held that an appeal is substantive right and the powers of appellate Court are contemporaneous with those exercised by the Court of original jurisdiction and that such a right carried with it the right of personal audience. Again in Muhammad Ayyu b and another vs. Muhammad Yaqoob and another (PLD 1975 Lahore 445) it was held that on filing of appeal, the matter gets re-opened and it becomes sub-judice to be decided in accordance with law.
Such is the importance of right of appeal and the duty of the appellate authority/forum to decide the same.
5. It may be observed that a civil servant is liable to observe a code of conduct/discipline as per S.15 & S.16 of Civil Servants Act, 1973, the violation of which, entails disciplinary action and penalties in accordance with the prescribed procedure as contemplated by Section 16 of the Act, 1973. The "prescribed procedure", envisaged by the law is the one laid down in the Government Servants (Efficiency & Discipline) Rules, 1973. Whereas the civil servant is conferred certain rights duties and remedies under the law, it also demands of him certain responsibilities and duties in the discharge of his functions. Section 4 of the Act confers right of appeal, review and representation before the specified authority. Rule 10 of Civil Servants (E&D) Rules, 1973 complements this right of appeal to a. person "on whom a penalty. is imposed shall have such right of appeal as may be prescribed under the Civil Servants (Appeal) Rules, 1977". Its Section 10-A though prohibits that no party shall be represented by an Advocate before the Authority, Authorized Officer, inquiry Officer or an Inquiry Committee yet it does not exclude the personal hearing to be given to the person concerned. Reference to the Civil Servants (Appeal) Rules, 1977 would itself show that the same have been framed by the President under Section 25 of the Civil Servant Act, 1973. It also shows beyond any shadow of doubt that such is a statutory right of appeal. The further perusal of the Civil Servants (Appeal) Rules, 1977 shows and its Rule-3 in quite clear term lays down that "every civil servant shall be entitled to appeal, to the appellate authority from an order passed by an authority or an authorized officer imposing upon him any penalty". Rule 6 of the Rules, 1977 obliges the appellate authority to consider:- "a) Whether the facts on which the order appealed against was based have been established, b) Whether the facts established afford sufficient ground for taking action; and c) Whether the penalty is excessive adequate, or inadequate, and, after such consideration shall confirm, set aside or modify the previous order and the appellant shall be informed of the reasons for passing such order"
Such is an extensive power and authority of the appellate forum that it is obliged to consider the matter over again.
6. Apart from the in-depth consideration of the appeal, it also imposes a duty upon the appellate authority to record reasons for passing the appellate order and that the appellant shall be informed of the same. This duty to record reasons while deciding the appeal is coextensive with the provisions of Section 24(A) of the General Clauses Act 1897, which also obliges an authority vested with the power to make any order or direction to give reasons for making of the order. In the instant matter, the order passed by the appellate authority reproduced above in para-2, not only shows the total lack of application of independent and objective mind to the appeal filed by the appellant, it does not contain any reason whatsoever.
7. It shows that the authority passing the order had failed to apply its mind and passed the order contrary to the law and required of him by Rule 6 of the Civil Servants (Appeal) Rules, 1977. It cannot be termed a speaking order at all. By disposing of departmental appeal in such a sketchy and perfunctory manner, the valuable right of appeal cannot be frustrated or rendered nugatory.
It also violates Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, which ordains the principle of due process and the right to be treated in accordance with law.
8. Since the departmental appeal of the appellant has not been decided in accordance with law which the appellate authority was obliged to consider it objectively, justly and fairly, in view of our powers and jurisdiction under Section 5 of the Service Tribunals Act, 1973, we are minded to direct the appellate authority to consider and decide the appeal of the appellant by recording reasons in accordance with law i.e. Rule 6 of the Civil Servants (Appeal) Rules, 1977".
9. Admittedly the appellant had raised a ground of discriminatory treatment in para-21 at the hands of Departmental Authority. It appears from the record that neither the appellant was heard nor her ground/plea about such discrimination was adverted to or dealt with. We are of the view that as the Appellate Authority was possessed of the relevant record of all such employees was obliged to attend to this aspect and to have dealt it in accordance with law. It was not so done and her appeal was not decided. As such, the mattresses remitted to the Departmental Appellate Authority for decision of her departmental appeal after affording her opportunity of personal hearing. The Respondent No. 3 in its comments has stated that DPC will be held in near future, but till disposal of appeal, having been filed on 1.11.2021 and the said comments having been filed on 07.11.2022, nothing has been informed either to the Tribunal or to the appellant about convening of the meeting of the DPC. This aspect of the matte may also be considered by the appellate authority and DPC be convened within two, months considering the name of appellant alongwith her colleagues.
10. The appeal is accordingly disposed of with the direction to the Appellate Authority to decide the appeal of the appellant after affording opportunity of personal hearing and due application of mind to all aspects of the matter. This will be done within two months.
11. No order as to costs. Parties be informed accordingly.