M IANGUL HASSAN AURANGZEB, J:- Through the instant writ petition the petitioner, Dr. Muhammad Hamid Ali, who is a BS-20 officer from the Trade and Commerce Group, has questioned the legality of the process adopted by the Ministry of Commerce, Government of Pakistan for the selection of Trade and Investment Officers ("TIOs") for posting at Pakistan's Trade Missions abroad.
2. In July 2023, the Ministry of Commerce published an advertisement inviting applications from inter alia government officers serving in BS-18 to BS-20 fulfilling the requisite eligibility criteria for selection as TIOs in Pakistan's Trade Missions Abroad. The written test was to be conducted by the Lahore University of Management Sciences, and the interviews of the successful candidates were to be conducted by a seven-member Interview Board which included the Secretary, Ministry of Commerce. The selection process of the TIOs was to be in accordance with the Policy Guidelines for Selection, Appointment and Posting of Trade and Investment Officers (BS-18 to BS-20) in Pakistan's Trade Missions Abroad ("Policy Guidelines") contained in the Office Memorandum ("OM") dated 03.07.2023 issued by the Ministry of Commerce.
3. As per the Policy Guidelines, officers who did not have complete Performance Evaluation Reports ("PERs") for the past five years at the time of the interviews with minimum average of very good' or total of 45 out of 50 marks in the PERs were ineligible for appointment as TIOs. As per the promotion policy issued by the Establishment Secretary on 15.05.1985 (Serial No.154, Chapter II of Esta Code), the overall grading in PERs are allocated the following marks:- Sr.# Overall Grading Marks
(i) Outstanding 10
(ii) Very Good 8
(iii) Good 7
(iv) Average 5
(v) Below Average 1
(iv) Poor 0
4. In response to the said advertisement, the petitioner participated in the competitive process and passed the written test conducted on 06.08.2023 by securing 64.5 marks. Thereafter, vide email dated 12.09.2023, the petitioner was called to appear in an interview scheduled to be held on 21.09.2023 at 11:00 am. The petitioner asserts that he was at the designated venue for the interview on the said date but was not interviewed, and that no reason was given for not interviewing him.
5. The Ministry of Commerce had prepared proformas containing information about officers applying for appointment as TIOs. The proforma prepared with respect to the petitioner shows that for the period between 13.07.2022 and 31.12.2022, his PER was "awaited." The petitioner, on 24.08.2023, submitted his PER form for the said period to the Secretary, Ministry of Commerce, who gave the petitioner an overall grading of 'good.' This PER, as per the Ministry of Commerce, did not pose as an impediment in the petitioner's consideration for appointment as TIO.
6. As per the said proforma, for the period between 04.05.2020 and 05.08.2020 when the petitioner served as Director General, Trade Development Authority of Pakistan ("TDAP"), he was given 10 marks, which is commensurate with an outstanding' PER.
7. Aggrieved by the decision of the Ministry of Commerce not to interview him, the petitioner filed the instant writ petition on 22.09.2023. After this Court issued notices to the respondents on 25.09.2023, the Section Officer of the Ministry of Commerce appeared before this Court on 27.09.2023 and took the position that the reason for not interviewing the petitioner was that he had not fulfilled the eligibility criteria set out in paragraph 1(d) of annex-A to the Policy Guidelines, which required a candidate to have a minimum average of very good' PERs in the last five years. The said Ministry's view was that the petitioner could not have been given 10 marks for his PER for the period between 04.05.2020 and 05.08.2020 (94 days) as the reporting officer for the period between 18.06.2020 and 05.08.2020 (52 days) could not have recorded his PER for the period between 04.05.2020 and 16.06.2020 (42 days) when he was not the petitioner's reporting officer.
8. On 27.09.2023, this Court directed the Secretary, Ministry of Commerce to afford an opportunity of a hearing to the petitioner and decide his grievances through a reasoned order. It was not until 04.12.2023 that the Joint Secretary (Human Resource Management), Ministry of Commerce brought on record the order dated 06.11.2023 passed by the Secretary, Ministry of Commerce.
9. Between 25.09.2023 and 06.11.2023, much correspondence took place between the Ministry of Commerce and the Establishment Division over the subject of whether the petitioner's PER recorded on 16.02.2021 for the period between 04.05.2020 and 05.08.2020 was valid. The Establishment Division's OM dated 09.10.2023 shows that the claim regarding the validity of the petitioner's PER for the period between 04.05.2020 and 05.08.2020 was valid in terms of paragraph 2.44 of the Guide to Performance Evaluation ("PER Guide"). Furthermore, the Establishment Division, in its OM dated 24.10.2023, opined that the petitioner's PER having been countersigned by the countersigning officer on 16.02.2021 was sufficient documentary evidence that he had accepted the PER which was initiated by the petitioner's reporting officer for the period between 18.06.2020 and 05.08.2020. After getting two views set out in the aforementioned Office Memoranda of the Establishment Division which were not to the liking of the Ministry of Commerce, further correspondence took place which culminated in the Establishment Division's OM dated 03.11.2023, the contents whereof were in conformity with the views of the said Ministry. The operative portion of the said OM is reproduced herein below:- "i. The period mentioned in the PER of Dr. Muhammad Hamid Ali (BS-20/CTG) is 04.05.2020 to 05.08.2020. Whereas, the actual period of Reporting Officer (R.O) was from 17.06.2020 to 5.8.2020 (52 days). Further, at the time of initiating of PER, the Calendar year 2020 was not complete.
Therefore, the period in which the said PER has been initiated is factually incorrect which makes the comments of RO & CO irrelevant. Ministry of Commerce may take action in the light of Para- 2.32 of AGPE-2004. ii. In order to invoke Para-2.44 of AGPE-2004, the procedure needs to be followed mentioned therein i.e. the countersigning officer may obtain separate reports from each of the reporting officers with whom the officer concerned has worked during the year. After examining their reports, he may exercise his discretion to decide which of those reports should be accepted.
Alternatively, he may himself write the report after examining the reports of the reporting officers with whom the officer concerned worked during the year."
10. On 27.12.2023, this Court passed the following order:- "This case was heard at length. The only impediment before the petitioner to be eligible for consideration for appointment as Trade Officer in Pakistan's Diplomatic Missions Abroad is the non-fulfillment of the criteria set out in paragraph-1(d) of the Policy Guidelines for Selection, Appointment and Posting of Trade and Investment Officers (BS-18 to BS21) in Pakistan's Trade Missions Abroad issued by the Ministry of Commerce through office memorandum dated 03.07.2023, which requires an officer to have complete Performance Evaluation Reports ("PERs") for the last five years, and furthermore, requires the minimum average of "very good" ACRs.
The petitioner served as Director General, Trade Development Authority of Pakistan during the year, 2020. For the period commencing from 04.05.2020 to 16.06.2020, his Reporting Officer was different from the one for the period between 17.06.2020 to 05.08.2020. The petitioner's Reporting Officer for the period between 17.06.2020 to 05.08.2020 recorded the petitioner's PERs and so did the Countersigning Officer. However, since the petitioner's Reporting Officer for the period between 04.05.2020 to 16.06.2020 had been transferred, his PERs recorded by the Reporting Officer were not available. It is the non-availability of the petitioner's PERs recorded by the Reporting Officer for the said period, which is causing the impediment for his consideration for appointment as Trade Officer in Pakistan's Diplomatic Missions Abroad.
Mr. Kashif Manzoor Malik, Joint Secretary, Ministry of Commerce is in attendance and submits that during the period between 04.05.2020 to 16.06.2020 the present worthy Secretary, Ministry of Commerce was the petitioner's Reporting Officer, he can record the petitioner's PERs for the said period i.e. 04.05.2020 to 16.06.2020.
Let the Worthy Secretary, Ministry of Commerce record the petitioner's PERs for the said period and thereafter immediately send the same to the Countersigning Officer. Let a report in this regard be submitted to the Court on the next date of hearing."
11. On 10.11.2024, the Joint Secretary (Human Resource Management), Ministry of Commerce brought on record a report according to which the Secretary, Ministry of Commerce, in his capacity as the petitioner's reporting officer for the period between 04.05.2020 and 16.06.2020, had given the petitioner an overall grading of average' in his PER for the said period. The countersigning officer had agreed with the reporting officer. As a result of this, the 10 marks earlier given to the petitioner stood reduced to 5 causing him to be ineligible for appointment as TIO. This Court directed the Ministry of Commerce to produce the petitioner's PER for the period between 04.05.2020 and 16.06.2020 recorded by the Secretary, Ministry of Commerce. On 26.02.2024, the petitioner's PERs for the said period also counter-signed by the countersigning officer was shown to this Court as well as the learned counsel for the petitioner.
12. On coming to know about this PER, which also contained adverse remarks about the petitioner, he, on 16.01.2024, filed a review application seeking recall of the order dated 27.12.2023 referred to herein above.
13. Learned counsel for the petitioner, after narrating the facts leading to the filing of the instant petition, submitted that the petitioner had two different reporting officers for the period between 04.05.2020 and 05.08.2020 (94 days); that the first reporting officer was for the period between 04.05.2020 and 16.06.2020 (42 days), and the second reporting officer was for the period between 18.06.2020 and 05.08.2020 (52 days); that the reporting officer for the period between 18.06.2020 and 05.08.2020 filled the petitioner's PER form for the entire period between 04.05.2020 and 05.08.2020 (94 days), and this is something for which the petitioner cannot be blamed; that since the countersigning officer had countersigned the petitioner's PER for the entire period of 94 days, the same could not be re-opened as there is sanctity attached to a PER once it is recorded; that recalling of PERs cannot be undertaken in collateral proceedings such as the process for selection of TIOs; that no other candidate has been subjected to such thorough scrutiny of his PERs; that the present Secretary, Ministry of Commerce remained silent for three years until he became the petitioner's cadre administrator and in collateral proceedings for the selection of TIOs, he, as one of the members of the Interview Board, raised the issue regarding the petitioner's PER for the period between 04.05.2020 and 16.06.2020 on the basis of his personal knowledge; that respondent No.5, who was the petitioner's countersigning officer, had used derogatory language against the petitioner in the written comments; that the said countersigning officer had taken a volte-face by giving the petitioner an outstanding' grading on 16.02.2021 and subsequently on 08.01.2024 downgraded it to average' for the very same period; that in the earlier PER dated 16.02.2021 for the period between 04.05.2020 and 05.08.2020, the countersigning officer had written that he knew the petitioner fairly well and agreed with the reporting officer to give the petitioner an overall grading of outstanding;' that in the subsequent PER dated 08.01.2024 for the very same period, the same countersigning officer wrote that he knew the petitioner very little and agreed with the reporting officer by giving him an overall grading of average;' and that the petitioner has been dealt with unfairly which needs to be remedied in the Constitutional jurisdiction of this Court. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein.
14. On the other hand, learned counsel for Mr. Muhammad Sualeh Faruqui (respondent No.4) and Mr. Arif Ahmed Khan (respondent No.5) who were impleaded as respondents vide this Court's order dated 26.02.2024, submitted that as per the proforma with respect to the petitioner prepared by the Ministry of Commerce during the selection process, the petitioner's PER for the period between 13.07.2022 and 31.12.2022 was awaited'; that when the proforma was prepared the petitioner had not even initiated the PER for the said period; that on 24.08.2023, the petitioner submitted his PER form for the said period to the Secretary, Ministry of Commerce, who gave him an overall grading of good;' that the said awaited' PER did not pose as an impediment before the petitioner in his consideration for appointment as TIO; that in terms of paragraph 6.7(2) of the PER Guide, the officer being reported upon is to fill in the name / designation of the reporting and countersigning officers and dispatch a certificate to the officer in-charge entrusted with the maintenance of the evaluation records on the same date the PER is forwarded to the reporting officers; that the petitioner, while initiating his PER for the entire period between 04.05.2020 and 05.08.2020, did not disclose to the countersigning officer that Mr. Riaz Ahmad Sheikh had remained the petitioner's reporting officer only for the period between 18.06.2020 and 05.08.2020 (52 days); that Mr. Riaz Ahmad Sheikh was the petitioner's batch mate and could not have evaluated the petitioner for the period between 04.05.2020 and 16.06.2020 (42 days) when he was not the petitioner's reporting officer; that in terms of paragraph 2.45 of the PER Guide, the petitioner's PER for the period between 04.05.2020 and 05.08.2020 issued on 16.02.2021 was irregular, and therefore the petitioner could not have been given the benefit of the overall grading of 'outstanding' in the said PER; that it is during the selection process for the appointment of TIOs that the Ministry of Commerce gained knowledge of such irregularity; that the petitioner's reporting officer for the period between 18.06.2020 and 05.08.2020 was Secretary, TDAP, who is now the Secretary, Ministry of Commerce, and was a member of the Interview Board constituted in terms of the Policy Guidelines; that in pursuance of the order dated 27.12.2023 passed by this Court, the petitioner's countersigning officer for the period between 04.05.2020 and 16.06.2020 issued the petitioner's PER and gave him an overall grading of 'average;' that the petitioner's evaluation carried out by the countersigning officer occurred after taking into consideration the petitioner's evaluation carried out by the two reporting officers during the period between 04.05.2020 and 05.08.2020; and that since the petitioner was not able to satisfy the requisite eligibility criteria of having minimum average of 'very good' PER for the last five years, he could not be selected and posted as TIO. Learned counsel for respondents No.4 and 5 prayed for the writ petition to be dismissed.
15. The learned Additional Attorney-General and the learned counsel for the Establishment Division adopted the arguments of the learned counsel for respondents No.4 and 5.
16. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant writ petition have been set out in sufficient detail in paragraphs 2 to 12 above and need not be recapitulated.
17. In order for an officer to be eligible to participate in the competitive process for appointment as TIO, paragraph 1(d) of Annex-A to the Policy Guidelines requires the officer to have complete PERs for the last five years with a minimum average of 'very good.' After the petitioner competed in the selection process and gained 64.5 % marks in the written test, he was informed vide email dated 12.09.2023 that he had to appear for an interview on 21.09.2023. In the writ petition, the petitioner has pleaded inter alia that on 21.09.2023, he was not interviewed. The Ministry of Commerce justifies this by asserting that the petitioner was ineligible to participate in the competitive process in terms of paragraph 1(d) ibid.
18. After this Court vide order dated 27.09.2023 required the Secretary, Ministry of Commerce to afford an opportunity of a hearing to the petitioner, the Secretary did so and thereafter passed order dated 06.11.2023 holding that the petitioner was not eligible for appointment as TIO on the ground that his PER for the year 2020 was irregular. This conclusion was drawn on the strength of paragraph 2.32 of the PER Guide which in essence provides that keeping of record of the PERs for periods less than three months was irregular and that such PERs should be removed and destroyed. For the purposes of clarity, the said paragraph is reproduced herein below:- "The writing and keeping on record of reports for periods of less than three months was irregular according to the relevant instructions on the subject. In order to bring about uniformity in practice for those already written and for future it has been decided that all such reports which have found their way in the character roll dossiers of the officers should be removed from the character roll dossiers and destroyed. A note at the appropriate place in the dossier should be kept stating that the Evaluation report for the period, such and such, which was for less than three months and earlier included in the character roll at page (such and such) has been removed in accordance with the relevant instructions. This would avoid the necessity of renumbering the pages and eliminate the risk of removal of other reports."
19. The Ministry of Commerce takes the position that Mr. Riaz Ahmad Shaikh who had served as Secretary, Trade and Development Authority of Pakistan ("TDAP"), had remained the petitioner's reporting officer only for the period of 52 days (i.e. between 18.06.2020 to 05.08.2020) and could not have given him a PER for the period between 04.05.2020 and 16.06.2020 (42 days) when he was not his reporting officer. Mr. Riaz Ahmad Shaikh had given the petitioner a PER for the period of 94 days (i.e. between 04.05.2020 and 05.08.2020). The petitioner's reporting officer for the period between 04.05.2020 and 16.06.2020 (42 days) was Mr. Sualeh Ahmad Faruqui, who during 2020 served as Secretary, TDAP and is now the Secretary, Ministry of Commerce. He had not given the petitioner a PER for the period between 04.05.2020 and 16.06.2020 (42 days) before the petitioner applied for appointment as TIO.
20. Since Mr. Riaz Ahmad Shaikh had remained the petitioner's reporting officer for a period of less than three months, the PER given by him to the petitioner, even though it was endorsed by the countersigning officer, was irregular and liable to be removed from the character roll dossiers and destroyed in terms of paragraph 2.32 of the PER Guide. It would have been a different matter had the petitioner's reporting officer for the period between 04.05.2020 and 16.06.2020 had also given him a PER as in such an eventuality, the petitioner's PERs for the period of 42 days (i.e. between 04.05.2020 and 16.06.2020) and 52 days (i.e. between 18.06.2020 and 05.08.2020) would have been sent to the countersigning officer who, in terms of paragraph 2.44 of the PER Guide would have had to exercise his discretion to decide which of the two reports he was to accept. For the purposes of clarity, paragraph 2.44 ibid is reproduced herein below:- "Officer who has worked for less than three months with a Reporting Officer - The question of recording of Evaluation reports in respect of officer who may not have worked with a reporting officer for a minimum period of three months during a year has been considered. It has been decided that in such cases the countersigning officer may obtain separate reports from each of the reporting officers with whom the officer concerned has worked during the year. After examining their reports he may exercise his discretion to decide which of those reports should be accepted. Alternatively, he may himself write the report after examining the reports of the reporting officers with whom the officer concerned worked during the year."
21. Realizing that Mr. Riaz Ahmad Shaikh could not have given the petitioner a PER for the period of 52 days when he had not remained his reporting officer, and since the petitioner's reporting officer for the period between 04.05.2020 and 16.06.2020 (42 days) was presently serving as the Secretary, Ministry of Commerce, this Court, in good earnest with the purpose of rectifying the deficiency in the petitioner's PER for the period between 04.05.2020 and 16.06.2020 (42 days), vide order dated 27.12.2023 required the Secretary, Ministry of Commerce to record the petitioner's PER for the said period of 42 days.
22. The petitioner was most uneasy with the said order dated 27.12.2023 and after his PER for the period between 04.05.2020 and 16.06.2020 was recorded on 08.01.2024 by the reporting and the countersigning officers, he filed review application (R.A.No.02/2024) seeking recall of this Court's said order.
23. As mentioned above, the Secretary, Ministry of Commerce was one of the seven officers on the Interview Board for the selection of TIOs. He had remained the Secretary, TDAP in the year 2020 and in that capacity he was the petitioner's reporting officer for 42 days between 04.05.2020 and 16.06.2020 and would have remembered that he had not recorded the petitioner's PER for the said period. Apparently, this caused him to raise a question on the validity of the petitioner's PER for the said period. A deficiency or an irregularity in an officer's PER can be detected and questioned at any stage if it does not fulfill the requirements of the law and/or the PER Guide. The mere fact that the petitioner's countersigning officer for the period between 04.05.2020 and 05.08.2020 had countersigned the petitioner's PER on 16.02.2021 for the said period would not attach sanctity to such PER as Mr. Riaz Ahmad Shaikh, who was the petitioner's reporting officer for a period of 52 days, had also recorded the petitioner's PER for the 42 days when he had not remained his reporting officer. Such an evaluation of the reporting officer could not have formed the basis for the countersigning officer to give an informed evaluation of the petitioner for the whole period of 94 days.
24. On the basis of how Mr. Riaz Ahmad Shaikh evaluated the petitioner, the countersigning officer had given the petitioner an overall grading of outstanding' in his PER for the period between 04.05.2020 and 05.08.2020. While agreeing with the reporting officer, the countersigning officer had recorded that he knew the petitioner fairly well.
25. Pursuant to the order dated 27.12.2023 passed by this Court, the petitioner's reporting officer for the period between 04.05.2020 and 16.06.2020 recorded the petitioner's PER and gave him an overall grading of 'average.' In the said PER, he gave remarks about the petitioner which need not be stated with specificity but in my view can be termed as uncharitable. Having the benefit of the reporting officer's evaluation, the countersigning officer changed his mind about the petitioner and also gave him an overall grading of 'average.' In the PER recorded on 08.01.2024, the countersigning officer wrote that he knows the petitioner very little and that he depended entirely on the judgment of the reporting officer. Furthermore, he stated that as an individual he knew the petitioner very well.
26. The petitioner's countersigning officer in the year 2020, on account of being the Chief Executive Officer of TDAP, knew or ought to have known that the petitioner's reporting officer was Secretary, TDAP and that for the period of 42 days between 04.05.2020 and 16.06.2020, the reporting officer was Mr. Sualeh Ahmed Faruqui whereas for the period of 52 days between 18.06.2020 and 05.08.2020, the reporting officer was Mr. Riaz Ahmad Shaikh. Despite this, the countersigning officer countersigned the petitioner's PER for the entire period of 94 days between 04.05.2020 and 05.08.2020 when he had the benefit of the petitioner's evaluation by the reporting officer only for the period of 52 days between 18.06.2020 and 05.08.2020.
27. Since for the period of 94 days (i.e. between 04.05.2020 and 05.08.2020) the petitioner's two reporting officers - one for the period of 42 days (i.e. between 04.05.2020 and 16.06.2020) and the second for 52 days (i.e. between 18.06.2020 and 05.08.2020), had recorded the petitioner's PERs separately albeit with a gap of a few years, the countersigning officer was well within his rights, in terms of paragraph 2.44 of the PER Guide, to agree with either report. In his remarks, the countersigning officer has recorded that he had depended entirely on the judgment of the reporting officer for the period between 04.05.2020 and 16.06.2020. It may, however, be noted that the documents brought on record by the respondents do not show as to whether the countersigning officer had also changed his mind regarding the evaluation he had done earlier regarding the petitioner for the period between 18.06.2020 and 05.08.2020 (52 days) when Mr. Raiz Ahmad Shaikh was his reporting officer. This, however, is not a germane question for this Court to decide in these proceedings.
28. Much emphasis was placed by the learned counsel for the petitioner on paragraph 3.10(iii) of the PER Guide which provides that remarks once recorded in evaluation reports cannot be altered, and that if the reporting / countersigning officer changes his views about the officer reported upon, the changed views can be incorporated only in the next year's report. This is not a case of the countersigning officer changing his mind. When the countersigning officer recorded the petitioner's PER on 16.02.2021, he had only the benefit of the petitioner's evaluation carried out by an officer who was the petitioner's reporting officer for a period of 52 days between 18.06.2020 and 05.08.2020 and not for the entire period of 94 days between 04.05.2020 and 05.08.2020. When the countersigning officer had the benefit of the petitioner's evaluation carried out on 08.01.2024 by the reporting officer for the period between 04.05.2020 to 16.06.2020, he could in terms of paragraph 2.44 of the PER Guide agree with the evaluation carried out by either reporting officer. The countersigning officer's evaluation of the petitioner for the said period synchronizes with that of his reporting officer for the period between 04.05.2020 and 16.06.2020.
29. Be that as it may, the recording of the petitioner's PER dated 08.01.2024 for the period between 04.05.2020 and 16.06.2020 makes his selection as TIO out of the question as he would be considered not to have satisfied the eligibility criteria of having a minimum average of very good'
PERs for the last five years.
30. As regards the adverse remarks about the petitioner recorded by his reporting and countersigning officers in his PER dated 08.01.2024, the petitioner is at liberty to apply to the competent authority in terms of Chapter IV of the PER Guide for their expunction. It would not be appropriate for this Court to examine whether the said officers had any tangible basis for recording such remarks as its jurisdiction is barred under Article 212 of the Constitution.
31. After this Court passed order dated 27.12.2023 requiring the Secretary, Ministry of Commerce to record the petitioner's PER for the period between 04.05.2020 and 16.06.2020, the petitioner initiated the PER and submitted the same to the Secretary in his capacity as the petitioner's reporting officer for the said period. It was not until after the countersigning officer signed the PER on 08.01.2024 that the petitioner filed a review application seeking review of the said order dated 27.12.2023. Since the learned counsel for the petitioner was not able to show any error apparent on the face of the said order, the review application is dismissed.
32. In view of the above, the instant petition is dismissed. No costs.