ABDUR RASHID, (MEMBER). --- The appellant, Ramzan Muhammad Chaudhry, who had been a Statistical Officer (equivalent of Grade-17) in the O &. M Wing of Establishment Division since 1-2- 1966 was, on 29-3-1975, recommended by the Federal Public Service Commission for appointment as Joint Director (Grade-19) in the Directorate of Research and Statistics (DRS). a subordinate office of the Central Board of Revenue. He joined the said appointment on 1-10-1976 nearly eighteen months after Federal Public Service Commission recommendation and only as a result of his representations, he was confirmed as such w.e.f. 13-3-1979 vide Gazette notification dated 18-3- 1979.
2. The DRS has separate rules and regulations framed under the provision of sub-rule (2) of rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. These rules have been notified vide Gazette notification dated 2-7-1974, laying down the method, qualifica--tions and other conditions for appointment to various posts in the DRS from Statistical Investigator (Grade- 16) through other posts of Grades-17 to. 19 and ending up at the top as the Director (Grade-20). We shall advert to these rules, where necessary. We would like to say, at this stage, that the post of the Director is to be filled by promotion or by transfer and failing that by direct recruitment. The qualifications necessary for the post of Director are ;
(a) Second Class Master's Degree in Economics, Statistics and Maths.
(b) 15 years service in Grade-17 and above.
The only person eligible for appointment by promotion to the post of Director is the Joint Director, provided he fulfils the above conditions.
3. When the post of Director, DRS, fell vacant, the appellant vide his application dated 1-8-1979.
Addressed to the Chairman CBR, requested that his name be considered for promotion to the said post since he fulfilled the requisite conditions. He received no reply and sent another appeal dated 19-8-1979. The CBR reply dated 27-8-1979 said: " . ....In view of the latest instructions on the subject of economy the Board has no intention to fill up the post of Director of Research and Statistics in the near future. The appointment will, however, be filled up according to the prevalent rules when the occasion so arises."
Yet another appeal by the appellant on 3-9-1979 received CBR reply dated 20-9-1979 which was similar to the one reproduced above.
4. Thereafter a number of officers of Grades-18, 19 and 20 held current, additional and regular charge of the post of Director, DRS. From May 1979 todate. The appellant, feeling aggrieved, preferred an appeal on 17-3-1981 to the Secretary Establishment Division through CBR, on the ground that the appointments to the post of Director were being made in violation of the rules.
There was response, not from the Establish--ment Division, but from the CBR, in the form of notification dated 9-6-1981 which read: "On conclusion of his training at the National Defence College;' Rawalpindi, Mr. Muhammad Tariq OSD, CBR, Islamabad is transferred and posted as Director, DRS, CBR w.e.f. 4-6-1981 (forenoon) and until further orders." .
5. After the above notification dated 9-6-1981, the appellant filed his present appeal with the Federal Service Tribunal on 30-6-1981 under section 4 of the Service Tribunals Act, 1973. The grounds of appeal are first, that his case should have been forwarded to the Central Selection Board for consideration for the post of Director, D.R.S. Second, that the post of Director, D.R.S. Being an excluded post with its own rules could not be held by an officer of any other cadre. Third, that the conduct of those in the C.B.R. Has been mala fide as they prevented the appellant from joining as Joint Director in the first instance which delayed his assumption of present appointment by about eighteen months and, subsequently, they have kept the appellant away from the post of Director through devious methods and fourth and last, that in denying the appellant the eligibility of promotion and, instead, transferring the officers of Income-tax Group to the excluded post of Director D.R.S. The C.B.R. Are violating the provisions of section 9 of Civil Servants Act 1973 read with rules 7 and 8 of the Civil Servants (Appointments, Promo--tion and Transfer) Rules, 1973 read with rules framed for the Directorate of Research and Statistics.
6. We heard the learned counsel from both sides. The first issue was that of the appellant's right to have been considered for the post of Director, D.R.S. In this connection, the written reply filed on behalf of respondent No. 2 (Chairman C.B.R.) reads: " .. ....He had put in only 131 years' service. He was not eligible for consideration as the required service for appointment to Grade-20 was 15 years' service in Grade-17. However, his case was referred to the Establishment Division for placement before the Central Selection Board for promotion but it did not materialize.'.'
The above quotation (signed by a Second Secretary who, apparently, lacked any guidance from above in the C.B.R.) displays a culpable ignorance of basic rules/guidelines laid down by the Establishment Division at page 132 of Estacode 1979, serial No. 171, which is a reproduction of O.M.
No. 3/7/74-AR-II dated 6-2-1975. Those in C.B.R. Dealing with the careers of officers would do well to acquaint themselves with the said O.M. We repro--duce below para. (ii) O.M. Ibid, relevant for our purpose : .
"Where initial recruitment takes place in Grades-19 and 20, the length of service prescribed for promotion to higher grades shall be reduced as indicated below: For Grad-19-7 years' service in Grade-18.
For Grade-20-10 years' service in Grade 18 and above or 3 years service in Grade-19"
The appellant joined initially in Grade-19 as Joint Director on 1-10-1976. He was, therefore, eligible to be considered for the next grade on or about 1-10-1979, bearing no number and captioned `Mise' which is actually, a collection of a few papers, hurriedly put together. There are three D. O. Letters dated 27th June, 9th August and 3rd October, 1977 all written by Secretary (AIT) Ashraf Nadeem and addressed to Mr. R. M. U. Suleman Director. DRS, requesting him to expedite the confidential report of the appellant for the period 1st October to 31st December, 1976. It was never written as the record shows. This is enough to give anyone an idea of how the A. C. Rs, the most important and basic document affecting the careers of officials, is handled in the CAR. Also, made available in the said `Misc' files are extracts from the minutes-of the meeting of the Central Selection Board held on 9-1-1980. Item 4 relating to the appointment of Director (Grade-20) in the DRS under CBR is re- produced blow "6. The Chairman, Central Board of Revenue informed the Board that consequent upon the transfer of Mr. R. M. U. Sulaiman to the Planning Division, the post of Director in the Directorate of Research and Statistics had fallen vacant in the C.B.R. According to the recruitment rules, the post had to be filled either by promotion from amongst Joint Directors or by transfer, and failing that, by direct recruitment. The Board was further informed that Mr. Ramzan Muhammad Chaudhry, being the only Joint Director available was the only eligible officer for appointment by promotion to the post of Joint Director. Mr. Ramzan's performance had been rated `Average' in his report for 1970 and for the period from 27-9-1975 to 31-12-1975. He was again graded `Average' in his A.C.Rs. For 1976 and 1977. The reporting officer made the following remarks about Mr. Ramzan in his report for 1976: "He talks too much without having any substance. Professionally he is not so competent as he pretends to be. He knows the art of manoeuvring his affairs.
Though given an overall 'Good' grading in his report for 1978. Mr. Ramzan had been rated 'Average' in the column for "'quality and output of work", "perseverance and devotion to duty" and "capacity to guide and train subordinates."
7. The Board decided that on the basis of his overall service record, Mr. Ramzan Muhammad Chaudhry was not fit to hold a post in Grade 20."
6. We would like to make a few observations on the above quotation of C. S. B. Meeting dated 9-1- 1980. The appellant joined on 1-10-1976 as Joint Director. D. R. S. Para 6 of quotation talks of his performance for 1970 and 2ith September, to 31st December, 1975 as being average. Actually the appellant was a Statistical Officer. O & .M Wing Establishment Division, between 1-2-1966 and 30-9- 1976 for which period he earned as many as twelve annual confidential reports (A. C. Rs). If the intention of the C.S.B, deliberately or otherwise, was to refer to the 1970, and September-December, 1975 A. C. Rs. When the appellant was Statistical Officer. Then they should have also considered other A. C. Rs. For the entire period the appellant was so employed and this was 1966-1976 as stated. We have gone through the A. C. Rs. Of the appellant between 1966-1976, when he was a Statistical Officer. As mentioned there are twelve A. C. Rs. For the said period. Of these nine are Good and three Average. The quotation at para. 6 of C. S. B. Viz. "He talks too much ... .He knows the art of manoeuvring his affairs" was written when he was in the O & M Wing Establishment Division before joining the C. B. R. It appears that it was never communicated to the appellant at the relevant time. This A. C. R. Therefore, had ceased to have any value and was even then adverted to by the C. S. B." However, we are quite clear in our mind that for his promotion to Grade-20 (Director D. R. S.) the appellant's relevant A. C. Rs. Were from 1-10-1976 to 31-12-1979.
7. As stated, appellant's A. C. Rs. For the period 1-10-1976 to 31-12-1976 as Joint Director, Directorate of Research and State was never written. Results of other A. C. Rs. Are
(a) His first A. C. R. As Joint Director is from 1st January, to 31 December, 1977. It has been written by the Director D. R. S, grading him average saying : "Has an aptitude for statistical work.st
(b) 1st January to 31st December, 1978 A. C. R. By D. R. S. Grades him as good and fit for promotion with : `;Has good capacity for work, particularly on statistical operations."
(c) 1st January to June 1979 A. C. R. By D. R. S. Grades him good and fit for promotion with : "Has capacity for suitable supervision of statistical operations."
It appears that the C. S. B. Had, before it, only three A. C. Rs. And not four as they should have had, if the 1st October--31st December, 1976 had been written.
8. The 1978 A. C. R. Has graded the appellant as "Good" but the C. S. B. Appears to have been adversely influenced by avearge grading in certain columns like "quality and output of work" "perseverance and devotion to duty" and "capacity to guide and train subordinates." May be, the C.
S. B, had in mind the Establishment Division O. M. Dated 3-1-1979 (serial No. 85 page 78 Estacode 1979) which said: "All the Ministries and Divisions should inform all officers that an "Average Report" though sufficient for retention in Government service does not qualify an officer for promotion to the next grade."
It is to be highlighted by us that the above-quoted O. M. Stands cancelled vide Establishment Division O. M. Of even number dated 22-2-1979.
9. We are also surprised that, those responsible in the C. B. R. Did not inform the appellant of his non-approval by the C. S. B. In January, 1980, nor did they disclose this in the objections filed before us (except in a vague manner) even though this fact had been communicated to them by the Secretary, C. S. B, within the same month and is on their record. If anything, it is certainly a demonstration of poor staff work and needs to be looked into.
10. It is an admitted position that the appellant has never been communicated any adverse remarks by the C. B. R. We have, however, observed that there are adverse remarks in his A. C. Rs.
For the period 15th September, to 31st December, 1979 as well as the one from 4-1-1982 to 20-7- 1982. In accordance with instruction 3 (i) at page 4 of the A C. R. Form, S. 121-A (Rev), these remarks should have been communicated to the appellant as soon as possible, but within one month of their counter-, signature and if this is not done, then a serious view is taken of this lapse. Since the said adverse remarks have never been communicated till date, we direct that these should not be taken into consideration when the appellant's case again comes up for promotion to Grade-20.
The Central Selection Board should be info sued of this direction when his case comes up for consideration.
11. We, now, take up the next issue that is that the post of the Director, D. R. S, being an excluded post as per rules could be held only by those officers who fulfilled the laid down conditions which we have already quoted at para. 2 above, We have it on record, that from 14-5-1979 till date, on as many as thirteen occasions, various officers have been given additional, current and full charge of the post of Director D. R. S. Most of these officers have come from the Income-;ax Group and have been of lower grade than Grade 20. At least on one occasion, even an officer of Grade-18 was given the current charge of this post : Without exception, none of these officers possessed the qualifications laid down by rules for this post and yet they were posted. This happened while the appellant was there all along. The present incumbent to the post, also, does not fulfil the conditions t hold the post. We find this to be an unacceptable situation. It appear that the C. B. R. Are violating the rules with impunity without the Establishment Division doing anything about it. We hold the appointment of the present incumbent to the post of Director, D. R. S, illegal and against the rules since he does not fulfil the conditions precedent to his present appoint--ment. If the C B. R. Do not wish to allow the appellant the current or additional charge of the post of Director, then the said, post shall remain vacant but it shall, under no circumstances, be filled by anyone who does not fulfil the conditions for it.
12. The record perused, leaves us in no doubt that the appellant has not been given a fair deal by the C. B. R. This is amply borne out by the fact of filling in the excluded post of Director by favouring the Income Tax Group Officers mainly, who did not possess the qualification. It is further supported by the fact that the C. B. R. Attempted to have the recruitment rules of Director's post changed to accommodate one of their old officers but failed. And above all, it is borne out by the fact that the appellant, despite being fully qualified, was not even once given the chance of holding the post of Director since May, 1979 despite being the only one entitled to hold it. All this does not reflect good faith of the Central Board of Revenue.
13. There is also substance in appellant's claim that even though he was selected by the Federal Public Service Commission on 29-3-1975. He was kept away from the post of Joint Director for about 18 months till he joined on 1-10-1976 as a result of his representations (showing devious methods and exhibiting ill will of Central Board of Revenue).
14. The above analysis leads us to the conclusion that the appellant has not been treated justly by the C.B.R. ' In order that this is no more so, the appellant, who had once been considered by the CSB for the post of Director in January 1980 but not approved, should be reconsidered at the earliest possible opportunity. His record ought to be properly put up to the CSB but not in the manner as eras done by, the then Chairman, CBR, last time.
15. We order that no one will be allowed to hold any type of charge of the post of Director, DRS, in violation of the rules framed for the said post and notified in Gazette dated 2-7-1974 which will also decide the case of the present unqualified incumbent as to his transfer from this post. We also order that fresh appointment to the post of Director DRS should be made immediately after reference to the Central Selection Board as required vide rules 7 and R of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, and the case of the appellant should also be referred to the said Board alongwith others possessing the requisite qualifica--tions. The CSB should also be furnished with a copy of this order to enable the Members thereof to know how the appellant has been treated previously and that adverse remarks in his ACR referred to in para. I above are of no effect and have to he taken out of consideration as they were never communicated to him
16. Ordered accordingly with no costs.