' A.
0. RAZIUR REHIMAN (MEMBER).-The appellant joined the Planning Division as Assistant Chief (Grade- 18) on ad hoc basis on 13th February, 1968. Having been placed on regular basis, on the recommendation of the Central Public Service Commission, he was appointed as Assistant Chief, Industries and Commerce Section, in the Planning Division, with effect from November 21, 1968. On 26th March, 1970 he was.Promoted as Deputy Chief (Grade-19) and is still continuing as such.
When, as a result of the administrative reforms of 1973, a new occupational group known as the Economists & Planners Group, was formed, all posts of Economists, Chiefs, Deputy Chief etc. In the Economic Section of the Planning Division, the Economic Affairs Division and the Finance Division and posts in other Ministries, Divisions etc. Dealing exclusively with economic matters and Planning and Development in the economic field were included in this occupational group. After the formation of the Group, a seniority list of Grade-19 officers was published by the Planning Division on 7th April, 1977. This list did not include the appellant's name and he made a representation in this behalf to the concerned Deputy Secretary of the Division. In reply, he was informed on 2nd July, 1977 that he had been absorbed in the Group and that since officers in the group were transferable to other Divisions, he would, in such eventuality have to go outside the Division if required. After some time he was also informed that he had been placed at serial I of the seniority list of Grade-19 officers of the Economists and Planners Group. However, when on 25th July, 1977 one Dr. Mushtaq Ahmad, who was a Deputy Economic Adviser (Economic Adviser Wing) and had been placed at serial 8 of the gradation list, was appointed to a Grade-20 post in the Finance Division, the Appellant protested against this, on the ground that, being at serial 1 of the list, he should have been considered for promotion and not bypassed. He did not get any response to this but, by an order, dated 1st November, 1977 he was transferred to the Finance Division as Deputy Economic Adviser. He did not join the new posting but, because he was aggrieved by the order by which his junior by as many as 7 steps had been appointed to a post in a higher Grade, he asked for confirmation that his inclusion in the E & PG had been made on regular and not on ad hoc basis, because no Gazette notification about this had been published till then. No confirmation was given but, on 11th December, 1977 he was ordered to join the new posting on pain of removal from the E & PG. He was also informed that, so far as the question of his promotion in the E & PG was concerned, his request could not be entertained. Because he had not worked and established his suitability for appointment in an Economic Section and, therefore, his credential as an Economist, he had been transferred to an Economic post in the Finance Division. He was also told that in case he was not willing to join the new post the decision to retain him in the E & PG would have to be reviewed.
When the appellant still failed to join the new posting, he was informed on 28th December, 1977 that the earlier decision to include his name in the E & PG had been withdrawn. He made representations to various quarters, including the C. M. L. A., as a result of which the Establishment Division conveyed to the Planning and Development Division the decision of the President rejecting the claim of the appellant for retention in the E & PG and for promotion to Grade-20 in the same group on 28th July, 1980. This decision, however, was not conveyed to the appellant at that time but came to his knowledge only when it was referred to during the hearing before us on 30th June, 1983 and a copy of it was made available to him at the same time.
2. Although the rejection of his appeal to the President had not been conveyed to him in time, he preferred his appeal to the Tribunal on 23rd July, 1981. The reason given by him for preferring his appeal later then the waiting period of 120 days prescribed under the rules and earlier than the actual communication of the decision to him was that, during the interview given to him by the Secretary, Establishment Division, he was informed that the President's decision was going to be conveyed to him shortly and that because of this he waited but since he did not get the promised decision, he approached the Tribunal.
3. Meanwhile, while waiting for the reply to his representation to the C. M. L. A. He made a further representation on 10th April, 1982 in reply to which he was informed, by the Military Secretary to the President on 1st June, 1982 that his application had been examined and it had been found that there had been no injustice in his case.
4. At the time of hearing, a preliminary objection was raised on behalf of respondent No, 2 that the appeal was barred by limitation. It was pointed out that the appellant, who had been included in the E & PG by the order of the Special Secretary, Planning and Development Division, after he had made a representation in this behalf, was removed from that group by the order dated 28th December, 1977. He could represent against this decision within 30 days, which he appears to have done. However, since he received no response to this departmental appeal, he should have come in appeal before the Tribunal within 120 days of the filing of his departmental appeal. This he did not do and came before the Tribunal as late as 23rd July, 1981. His appeal is, therefore, clearly barred by limitation and should be dismissed as such. It is true that; in absence of any response to his departmental appeal, his failure to come before the Tribunal within 120 days made his appeal liable to dismissal. But, since he kept on making representations again and again, the matter was examined at a higher level and a clear and positive decision given by the President, which was conveyed to the Planning Division on 28th July, 1980. This decision does not appear to have been conveyed to the appellant at any time before he came to the Tribunal. Therefore, when the present appeal was filed, it was liable to dismissal on the ground that it had not been filed within 30 days of the receipt of the impugned appellate order or within 120 days of the filing of the departmental appeal. But, the President's order conveyed to the Planning Division on 28th July, 1980 provided the appellant with the right to appeal before the Tribunal. Since he had already preferred an appeal earlier and it had matured with the issuance of the President's order rejecting his claim, we take the appeal as maintainable and reject the objection on the ground of limitation raised by respondent No, 2.
5. Now to take up the case on merits. The appellant has made a three-fold prayer in his memo. Of appeal. The first relates to his re-inclusion and absorption in the E & PG, w. e. f. The date he was originally inducted in the group, i. e. July, 1977. The second prayer is for quashing the A.C.Rs, written by Mr. Javed Hamid and countersigned by Mr. Moinuddin Haqai for the years 1974 to 1978. His third prayer is for ordering his promotion to the post of Chief, Industries and Commerce Section, with effect from 28th July, 1975. We shall take up these one by one.
6. After hearing the parties at length and perusing the relevant documents, we are satisfied that no case is made out for ordering the re-inclusion of the appellant in the Economists and Planners Group. As already observed, the Group was form by an 0. M. Bearing No, 10/2/75-ARC, dated 25th March, 1976, according to which the Group was to comprise Economists, Chiefs etc. Belonging to the Economic Section of the Planning and Development Division etc. The appellant, who had been recruited to the Planning Division as Assistant Chief, Industries and Commerce Section, did not belong to an Economic Section. From a notification, dated 23rd January, 1970 bearing S.R.O. No, 1561(R)/70, issued by the Planning Division, it is seen that the Economic Sections and Technical Sections were listed separately and the Industries and Commerce section was shown as a technical section at serial 11 of sub-para. (a) of paragraph 3 of the said notification. The appellant pleaded that he was basically' an Economist, with high qualifications in Economics and it was because of his qualifications that he was appointed as Assistant Chief in the Industries and Commerce Section and, therefore, he should be included in the E & PG. This plea cannot be of much avail to him, because we cannot at this stage, adjudicate on the question of his suitability or otherwise for inclusion in the E & PG. Whatever his merits as an Economist, he did not, at the time of the formation of the occupational group in question belong to an Economic Section. He could not, therefore, be automatically treated as belonging to the new group. However, the appellant could have been inducted into the E & PG, in accordance with the instructions contained in paragraph 11 of the 0. M., dated 25th March, 1976 by which the new Group was formed. According to this paragraph, to meet specific requirements, appointments could be made to posts in the group in any grade, through lateral entry, of persons in Government service possessing the necessary professional qualifications and experience. No such thing was done in the case of the appellant, but his name was included in the seniority list by an order passed by the Special Secretary, Planning Division. Since this list had to be approved by the Establishment Division and the said Division did not agree with the decision taken by the Planning Division, his name was struck off the list of officers of the E&PG, this action of the Estt. Division was upheld by the President, who ordered that "the inclusion of Mr. S. Nazir Ali in the E & PG being ab initio irregular his exclusion from that Group would stand". We do not find any ground whatsoever to disagree with the decision of the competent authority either on merit or in law and, therefore, reject the prayer of the appellant in this behalf.
7. On the question of the A.C.Rs,, the appellant's grievance was that Mr. Javed Hamid, Deputy Chief, Perspective Planning, who was appointed as Deputy Chief on 8th December, 1973 as against the appellant, promoted as such on 26th March, 1970 was placed in additional charge of the Industry and Commerce Section. In this manner, the appellant who was senior to Mr. Javed Hamid, was placed under him and his A.C.Rs, for a number of years were written by him. According to the appellant, since Mr. Javed Hamid was junior to him and because the appellant had protested against his own claim to posting as Chief of the Section being ignored, Mr. Javed Hamid could not be expected to make unbiased report on his work and performance. Therefore, when a copy of his A.C.R. For the year 1976 was forwarded to him for information and removing the deficiencies pointed out by the Reporting and Countersigning Officers, he submitted a note protesting against the adverse remarks contained in the A.C.R. In reply to this, he was informed that the remarks were not really adverse but were intended as advice to enable him to prepare for shouldering responsibility at the higher level. Nevertheless, the appellant apprehended that he could not expect a fair deal from the Reporting Officer and the Countersigning Officer who, as claimed by the appellant, should not have countersigned his A.C.R. For the year 1976, because the appellant's papers did not go to the said officer (Special Secretary) but to the Secretary and any remarks passed by the Special Secretary could not be taken to be valid for the purpose of A.C.R. He, therefore, made a request to the department for obtaining the views/ comments on his A.C.R. From the former Secretary who was incharge of the Division at the relevant time. The matter was referred by the department to the former Secretary, Planning Division, Mr. V. A. Jafarey, when he was Pakistan's Ambassador to the Government of Belgium. Mr. Jafarey's reply clarified that the remarks contained in the A.0 R. For the year 1977 did not constitute adverse remarks and should not be treated as such. He also clearly stated that the report of Mr. Javed Hamid should not debar the appellant for being considered for promotion. In spite of the fact that, with reference to the representation made by the appellant against the adverse remarks contained in his A.C.R. For the year 1976, he was informed, on the orders of the Countersigning Officer, the then Special Secretary, that the remarks were not really adverse and in spite of the fact that the observations of the former Secretary on the A.C.R. For the year 1977 were also conveyed to the apppellant, he has raised this matter in the appeal, because, according to him, irrespective of the statement made by the department, the remarks are going to affect his career and should not be on the record, both because they were not justified and were passed by a person who could not be expected to be impartial and by another who was not competent to countersign the report.
8. An examination of the A.C.Rs, from 1974 onward shows that the A.C.R. For the year 1974 was not written by Mr. Javed Hamid and, therefore, we have to consider only those written for the period 1st January, 1975 to 20th May, 1979. Since they were all written by Mr. Javed Hamid, all these reports, whatever observations may have been made subsequently by the higher departmental officers, are either positively adverse or verging on being unsatisfactory. Without going into the question whether the assessm ents made by the Reporting Officer, Mr. Javid Hamid, were unbiased or otherwise, it appears relevant to note that Mr. Javed Hamid was junior to the appellant as a Deputy Chief. It was, therefore, clearly unfair and against the recognized norms of administrative propriety to have posted Mr. Javed Hamid over the appellant. The appellant, who belonged to a Technical Section, should not have been placed under Mr. Javed Hamid, who belonged to an Economic Section and was, besides, junior to him in the Grade. On the other hand when the vacancy of a Chief arose, either temporary or otherwise, the appellant should have been considered for posting as such, unless he were found unfit and formally superseded. This Tribunal has held in Appeal No, 18(R)/1982, Dr. Najjarm Khan v. Ministry of Health, that the A.C.R. Of a senior officer should not be written by one of his juniors and we are inclined to think that the appellant was justified in apprehending that he could not expect fair deal from his Reporting Officer for the relevant period.
This plea is strengthened by the observation made by the new Countersigning Officer, Mr. M. A.
Rehman, Additional Secretary, Planning and Development Division, who has countersigned the report for the period 1st January, 1979 to 20th May, 1979. The remarks of both the Reporting Officer and the Countersigning Officer for this period are reproduced below :- "I found him uncooperative and disgruntled. He may have improved under my successor. This C.R.
Should be seen together with the C.R. For the rest of the year.
' Mr. Javed Hamid, the Reporting Officer, is biased against Mr. S. Nazeer Ali because the latter has been representing against him. I have, therefore, corrected the entries in Parts II and III to make this report conform to facts.
' The Reporting Officer is also right in his presumption ; the report of Mr. S. Nazeer Ali by Mr. Javed Hamid's successor-Dr. B. I. Hashmi--does not give a completely different assessment of Mr. S. Nazeer Ali."
9. In this connection, it is significant to note that the Countersigning Officer has not only disagreed with the Reporting Officer on the overall assessment and pen-picture but also on each single item of rating, as contained in Part II of the A.C.R. Whereas the Reporting Officer, had, in the overall assessm ent in Part III, graded him as "average" the Countersigning Officer graded him as "good" and, while the Reporting Officer had remarked that he was unfit for further promotion and had reached his ceiling, the Countersigning Officer found him fit for promotion. In Part II, while the Reporting Officer considered him as "average" against 10 items, "below average" and "good" against one each, while being non-committal in respect of three the Countersigning Officer found him AI ("very good") in respect of 7 items and A ("good") in respect of 8.
10. For the period 21st May, 1979 to 31st December, 1979 the Reporting Officer found him "very good" and spoke highly of him and considered him "capable" of shouldering greater responsibility". The Countersigning Officer, Mr. M. Z. Rehman, graded him as "good". For the year 1980, the same Reporting Officer again graded him as "very good" ; but the grading was changed to "good" by the same Countersigning Officer. For the next year, the new Additional Secretary, Mr. S. Habib Hussain, who both initiated and countersigned the A.C.R. Graded him as "good" and remarked: "Mr. S. Nazir All is more sinned against then sinning. He is unnecessarily a maligend officer. He has not been given a fair deal but has been condemned without providing an opportunity to prove his worth. I am confident that with encouragement and proper guidance, he can rise to the occasion."
11. Considering the fact that Mr. Javed Hamid should not have been required to write the A.C.R. Of the appellant and Dr. Baqai could not have, in view of the distribution of work, figured as the Countersigning Officer, and also because the adverse remarks given by Mr. Javed Hamid have been c held by a later Countersigning Officer to be biased on account of personal reasons, we have no hesitation in accepting the prayer of the appellant in regard to the A.C.Rs, for the years 1975 to 1977. These shall be treated as cancelled and taken out of the dossier.
12. Having disposed of the first two prayers made by the appellant, we come to the third and last, which relates to the question of his promotion to the post of Chief. As already observed, he was promoted as Deputy Chief (Grade-19) as far back as 26th March, 1970 and is still continuing as such. He is a highly qualified person and, by virtue of his academic qualifications, he could have been included in the E & P G. This, however, was not done, because his initial recruitment was not to an economic post or the economic section of the Planning Division but to a technical section, namely, the Industries and Commerce Section, and in a noneconomic post and, when the new Group was formed, technical posts and technical sections of the Planning Division were excluded from the E & PG. However, the appellant could have been absorbed in this occupational group in accordance with paragraph 11 of the 0. M., dated 25th March, 1976 vide paragraph 6 above. Since this was not done, he stands excluded from the E & PG. He has thus not been able to avail the benefit of his academic qualifications in economics because of the pure accident of his initial recruitment being for a non-economic post/section. It would be most unfortunate if he were to further suffer by being denied promotion within his own section. Admittedly, the appellant is one of the senior-most Deputy Chiefs in the Planning Division. He has already put in about 14 years in this capacity. According to the rules, 33% of the posts of Chiefs are to be filled by promotion and promotion is to be made against the departmental quota first and vacancies reserved for direct recruitment are to be filled later. Neither in the written objections filed on behalf of the department nor during the arguments, the department could satisfactorily explain why the post of Chief has been held in abeyance and an officer from a non-technical section has been posted to look after the work of Chief of the Industries and Commerce Section, in clear violation of the existing rules.
According to the seniority list of the Deputy Chiefs of the and C Section, supplied by the department itself, the appellant is next in seniority only to Mr. Irshad Ahmad. The post of Chief appears to have been vacant since 1974. The fact that an outsider had been appointed to do the work of the Chief clearly shows that the post of Chief, I and C Section is not redundant. Therefore, we see no justification for the department ignoring the claim of the senior-most Deputy Chiefs for promotion as Chief. The learned counsel for State and the departmental representative could not satisfy us on this point and we are compelled to observe that the department has ignored the relevant rules pertaining to promotion from the post of Deputy Chiefs to that of Chief in the Planning Division. We are not aware whether Mr. Irshad Ahmad is still working as Deputy Chief in the I & C Section or is on deputation elsewhere. Whatever the position, both he and the appellant deserved to be considered for promotion the moment the post of Chief fell vacant. The department should forthwith take up their cases and decide to as their suitability for promotion. Apart from this, we also see no justification for an officer from outside being appointed to supervise the working of the I & C Section in the absence of the Chief. The senior-most Deputy Chiefs should have been considered for being entrusted with this work and should not have been ignored unless they had been declared unfit. We, therefore, order that the appellant alongwith his immediate senior-most Deputy Chief, Mr. Irshad Ahmad, shall be considered for promotion as Chief in the I & C Section and pending the filling up of the post the question of their working as Coordinator shall also be considered and decided on merit.
12. With the above orders and observations, the appeal is partially allowed.
13. No order as to costs.
' MUHAMMAD IRSHAD KHAN (MEMBER).-I agree.