' CH. A. RAHMAN KHAN (MEMBER).--Mr. Jamil Yusuf, the appellant, has come in appeal against the impugned order No, 105/14/PA; ML&C, dated the 8th April, 1985 whereby his departmental appeal against the adverse remarks contained in his ACR for the year 1984 was rejected by the competent authority.
2. The learned counsel for the appellant argued and contended that the ACR of the appellant for the year 1984 was written by three officers. The reporting officer and the countersigning officer who were directly concerned with the work of the appellant gave him a good report and recommended him for promotion. However, the second countersigning officer, respondent No, 2 who was not directly concerned with the performance of the appellant has recorded adverse remarks in the A.C.R. For the year 1984 which are without any justification or reason.
3. It was further submitted by the learned counsel for the appellant that the circumstances which led to the recording of adverse remarks in the A.C.R. Of the appellant were clearly mentioned in the departmental appeal dated 6-8-1984 but it appears that the competent authority did not apply his mind seriously while rejecting his appeal. It was submitted that respondent No, 2 should have recorded the adverse remarks only if he had an opportunity to oversee the performance of the appellant. During the period under review the respondent No, 2 did never have the occasion to come in contact with the appellant. The adverse remarks recorded by him are, therefore, the result of premeditated malice against the appellant. A matter of mere personal should not have been allowed to mar the service career of the appellant by respondent No,
2. The respondent No, 2 has recorded adverse remarks on the integrity of the appellant both intellectual and in financial matters without giving any single instance which might have led him to form this opinion. Moreover, his remarks regarding further retention in service are also uncalled for. To declare the appellant unfit for retention in service before he has completed the minimum qualifying service of 25 years is against the spirit of the relevant rules. He could have exercised his right to record such remarks only if the appellant had completed 25 years of qualifying service. The appellant joined service in December 1964 and so had only 20 years of qualifying service at the time of recording these remarks by respondent No,
2. This is a clear indication that respondent No, 2 had gone out of his way to harm the appellant. It was, therefore, strongly contended that the adverse remarks recorded in the A.C.R.
For the year 1984 may he ordered to be expunged being untenable under the existing rules.
4. The learned counsel for the State challenging the contentions of the appellant submitted that the circumstances of the personal enmity as stated in his 2. The post of Deputy Commissioner is in Grade-18 (Rs,1,000-75-1,750). Plus Special Pay of Rs,165 p.m. A Deputy Commissioner is entitled to sumptuary allowance of Rs,150 p.m. And also free house. The special pay, sumptuary allowance and the facility of free house, however, will not be admissible during the training period and your assignment as Additional Deputy Commissioner."
4. It was contended by the learned counsel for the appellant that the pay of the appellant as Deputy Secretary/Director, Export Promotion Bureau was fixed in the grade of Rs,1,000-75-1,750 plus special pay of Rs,440 p.m. He continued to draw his pay till his induction as Deputy Commissioner in October, 1975. However, his pay while serving in the District Management Group as Deputy Commissioner was fixed in Grade-18 but his special pay of Rs,440 p.m. Was not allowed. The appellant continued to make requests in this respect giving rise to the recurring cause of action as upheld in:- "PLC 1984 (C.S.) 386, PLC 1984 (C.S.) 1319, PLC 1983 (C.S.) 1257 and 1984 SCM R 1297."
5. It was submitted t 'oat the appellant preferred a formal representation/appeal dated 25-7-1984 to the competent authority through respondent No, 1, Secretary, Ministry of Finance. This departmental appeal of the appellant was rejected vide impugned order dated 12-8-1985. It was emphasised that from the very beginning when the pay of the appellant was fixed in Grade-18 and was refused special pay of Rs,440 p.m., the appellant has been following his case diligently and continuously with the hope that his case would be decided favourably. But, this was not to be so. It was argued that since the appellant was a lateral entry selectee his emoluments arc protected under Office Memorandum No, 3/3/75-AR-II, dated 24-3-1974 which is reproduced below:- "Deputy Commissioners will continue to be in Grade-18 and in receipt of the present rate of special pay and rent-free residential accommodation. Their sumptuary allowance may, however, he raised to Rs,150 per month. Where officers are specially selected as Deputy Commissioners under the lateral entry scheme and they are getting higher emoluments, they should be protected in their emoluments."
' In view of the above it was submitted that the appellant should he allowed his special pay of Rs,440 p.m. Which he was already drawing at the eve of his induction in the District Management Group in Grade-18.
6. It was further submitted that the impugned order is in contravention of second proviso to section 10 of the Civil Servants Act, 1973 which provides that where a civil servant is required to serve in a post outside his previous service of cadre, his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled in his previous assignment.
In view of the above settled rules on fixation of pay and allowances, it was strongly contended that the impugned order dated 5-8-1985 may he ordered to be cancelled and the appellant he allowed to draw his emoluments including special pay of Rs,440 p.m. With retrospective effect i,e, with effect from October, 1975 with all consequential benefits.
7. It was contended by the representative of respondent No, 2, the Establishment Division assisted by the representatives of respondents Nos. 1 and 3 that the appeal is not maintainable in law and facts because basically the appellant did not avail the opportunity of preferring a departmental appeal against the order dated 6-5-1975 whereby his pay was fixed by the A.G.P.R. In Grade-18. The appellant submitted an application dated 25-7-1984 which was not a representation under section 22 of the Civil Servants Act, 1973. It was further submitted that the order dated 5-8-1985 is not an appellate order as application dated 25-7-1984 was against non-existing final order (in original).
Therefore, in view of the above two facts the appeal is hopelessly time-barred and is liable to be dismissed.
8. It was argued by the representative of the respondents that the appellantwas initially selected through lateral entry scheme and appointed to officiate as Deputy Secretary, vide Establishment Division Notification dated 2-10-1974. However, District Management Group was constituted comprising all posts of Civil Administration in the Districts and Divisions viz. Commissioner, Deputy Commissioner, etc., and such other posts as may be included in the group from time to time. The instructions to form this D.M.G. Cadre were laid down vide O.M. No, 2/2/74-ARC, dated 23-2-1974 as amended by O.M. Of even number dated 4-12-1976. However, in view of the importance of the posts of Deputy Commissioners, special instructions were laid down which are reproduced below:- "4. In view of the importance of the post of Deputy Commissioner which at present is Grade-18 post carrying special pay, it has been decided as follows:-
(0) The post of Deputy Commissioner would be a selection post and selection will be made from amongst officers having at least 10 years' service in Police, Armed Forces, Civil Administration or Military Lands and Cantonments Departments. The selected persons shall be given training in administration and law, if necessary, before posting as Deputy Commissioner.
(ii) To ensure appointments of experienced persons, the post of Deputy Commissioner in major districts will be placed in Grade-19; a minimum service of 12 years in Grade-17/18 shall be a condition precedent.
9. Whereas recruitment to Grade-17 was to continue to be made through F.P.S.C., it was contended that recruitment through lateral entry scheme was also envisaged vide para. 8 of the O.M. Dated 23-2-1974 as amended. It was argued that the recruitment of the appellant as Deputy Commissioner was effected through the procedure of nomination on the recommendations of the Provincial Government vide para. 4(1) of the O.M. Dated 23-2-1974. The recruitment of the appellant was not effected through lateral entry scheme as argued by the learned counsel for the appellant because the procedure of recruitment through lateral entry scheme does not envisage nomination on the recommendation of the Provincial Governments. Also in the lateral entry scheme the selection is not restricted to only Government Departments as clearly laid down in para. 4(1) of the Q.M. Dated 23-2-1974 but it would include the experienced members of the private sector as well.
Any recruitment through lateral entry scheme would envisage much wider advertisement through National Daily Newspapers. In the absence of any such procedure the recruitment of the appellant as Deputy Commissioner cannot be called through the lateral entry scheme. It was simply a case of selection on the recommendations of the Provincial Government. If any simplified method of selection comprising of one or more written papers and an to the learned counsel for WAPDA, only one examination common for all, we held in accordance with the past practice. Referring to the precedent in the case of Baig and Christi relied upon by the appellant's counsel, it was explained that both the candidates had secured equal number of marks and so, the Authorit decided to grant advance increment to each of them. It was this tie and nothing else which resulted in the award of advance increments to more than one trainee It was urged that the facts and circumstances of the precedent quoted were so different that it could not be justifiably claimed that in the instant case also, th appellant be declared eligible for the grant of an increment in addition to the trainee who secured the highest marks in the course and was awarded an advance, increment.
4. We have heard both the sides and have also perused the record. In ou view the whole issue revolves round the instructions contained in the Offic Order dated February 17, 1968. It would be appropriate to reproduce it below. I reads: "OFFICE ORDER ' The Authority has decided that one advance increment may he allowed to the trainee who obtains the 1st position, and Merit Certificates may be issued to trainees who secure the 2nd, 3rd and 4th positions in the final examination of the WAPDA, Accounts Training Institute, Lahore.
' These orders will take effect from July 1, 1967."
From a plain reading of the above Office Order it is clear to us that it provides for the award of advance increment to one trainee who secures the first position in the final examination of the Institute. It is not denied that the appellant and all others were co-participants in the same course which was held from 11-11-1974 to 1-3-1975. It is also not the appellant's case that courses of study were different. No evidence has been produced to establish that two separate examinations were held. So, the conclusion we have reached is that the Accounts Assistants and Accountants attended a common training course and took one final examination. Amongst the Accounts Assistants the appellant stood first securing 607 marks while Zubair Chaudhry with 646 marks was first amongst the Accountants. Thus, overall first position was obtained by Zubair Choudhry and so he alone was entitled to the advance increment. The appellant being not the rightful claimant cannot be said to have been unfairly treated. His grievance is misconceived.
5. The respondent-department has also raised the preliminary objection that the order refusing the grant of advance increment having been passed on 8-10-1978, the appeal filed on 23-7-1985 was hopelessly barred by time. We do not find that this objection is valid. The fact of the matter is that the appellant's claim for advance increment submitted to the Chief Accountant WAPDA was rejected on 8-10-1978. Against this order, the appellant addressed an appeal/representation to the General Manager Finance. The evidence on record shows that the matter remained pending for long and the appeal was finally rejected vide General Manager Finance letter of 2-6-1985. This decision having been communicated to the appellant on 29-6-1985, the appeal filed on 23 7-1985 is held to be within time. The objection is overruled.
6. As discussed above, there being no merit in the appellant's appeal it is hereby dismissed.
7. No order as to costs.