RANA RIFAT SAEED (MEMBER): --The appellant, Engineer Musahib Khan Jadoon, had remained abroad in Nigeria from December, 1981 to October, 1985 on deputation and on return after rejoining WAPDA, he was considered for promotion as Director (B-19), but could not be approved for promotion due to his unsatisfactory record. He had prayed that the reports of the foreign employer should also be considered and if there was any shortfall in his A.C.Rs. Score Which should be made up for meeting the threshold of 60 marks for consideration of his promotion to next higher post of Director (B-19).
2. The learned counsel for the appellant had mentioned that on return from foreign service in 1985, the appellant had been considered by the D.P.C./Board for promotion as Director (B-19) in the meeting held on 28-2-1993/8-4-1993.Although his A.C.R. Score was 65.8 marks and was well above 60 marks i.e. Minimum threshold fixed for promotion but he had been deferred and his 6 junior(i.e. Private respondents 3 to 8) had been promoted as Director (B-19). Appellant's name had again been considered by the D.P.C./Board in the next meeting held on 9-9-1993/13-9-1993 and though his A.C.R. Score was 66.2. Marks and well above 60 marks of minimum thresh-hold, yet he had not been approved for promotion (i.e. He had been recommended for supersession by the D.P.C./Board) and his 14 juniors promoted as Director. The learned counsel had expressed that the respondent-Department had not even informed the appellant, as to what were the causes of his deferment in first meeting of the D.P.C./Board and for his not approval (i.e. Supersession) in the second meeting of the D.P.C./Board. The appellant had only kept quiet and thinking that it might be due to his lower score in his ACRs which might be less than 60 marks i.e. The minimum thresh-hold fixed for promotion from Executive Engineers/Divisional Engineers (B-18) to the post of Director (B- 19) as per promotion policy of WAPDA/Federal Government. He had tried his best and made efforts that annual reports of his foreign service in Nigeria from 1981 to 1985 should be quantified and considered by the DPC/Board for promotion as per para. 2 of O.M. Dated 29-11-1980 pertaining to his deputation abroad. Para. 2 is reproduced below: "2. As regards deputation outside Pakistan, the employees will be considered for promotion after they have put in 6 months of service after repatriation and have earned satisfactory/good reports during the period. The report, if any, given by the foreign employer will also be considered provided he resumes duty within the approved deputation period.
3. The appellant had come to know that DPC/Board had not quantified and considered his foreign reports and which might be a reason for a shortfall in his ACRs score. However, the appellant had been considered/recommended to move-over to B-19 with effect from 1-12-1986. This indicated that his 5 previous reports were `good' and free of adverse remarks.
4. The learned counsel had submitted that the appellant had made a representation to the respondent-Department on 23-5-1993, 27-5-1993 and 5-7-1993 and particularly the last one was with respect to his non-approval for promotion to the higher post. The Department had not responded and accordingly the appellant had submitted the instant appeal to the FST on 19-10- 1993. The learned counsel had requested for acceptance of the appeal, for consideration of his foreign service ACRs and for appointment/consideration of promotion to the next higher scale as Director (B-19), because his score was more than 60 marks, fixed as minimum threshhold for promotion to B-19 posts.
5. The learned counsel as well as the representative of the respondent Department had stated that according to instruction 2.41 of the Performance Evaluation Report, A.C.Rs. Earned during foreign service were not to be quantified and not to be considered for promotion. They had clarified that, although these foreign reports were not to be quantified, but the D.P.C./Board had taken a positive view/weightage, as these reports were good and satisfactory and no adverse or ill-effect had been derived. They had mentioned that in view of his representations made on 23-5-1993 and 27-5-1993, the present appeal was hit by limitation factor. But the learned counsel for the appellant had explained that the first departmental representation which was with reference to his non-approval for promotion by the D.P.C. Board was dated 5-7-1993 and accordingly the instant appeal was within limitation, as the earlier representations could not be treated as departmental representations, because these were without reference to appellant's non-clearance/rejection by the D.P.C./Board.
6. Upon the request of the appellant the representative of the respondent Department had produced the service record and A.C.Rs. Of the appellant of the following years and these had been rated `good' to `very good':
(a) A.C.R. For 1986 rated as `very good',
(b) ACR for 1887 rated as `good'.
(c) A.C.R. For 1988 rated as `good',
(d) A.C.R. For 1989 rated as `good',
(e) A.C.R. For 1990 rated as `good'.
(f) ACR for 1991 rated as `good'.
(g) ACR for 1992 rated as `very good', The learned counsel for the appellant had expressed that the appellant's service record in B-17 and above, even after excluding foreign A.C.Rs., had been rated almost `good' to `very good' and his A.C.Rs. Score in the first meeting of the D.P.C./Board held on 28-2-1993/8-4-1993 was 65.8 marks which was more than 60 marks and also in the second meeting of the D.P.C./Board held on.9-9- 1993/13-9-1993 his score was 66.2 marks i.e. More than 60 marks, how the appellant had been deferred in the first meeting and not approved (i.e. Recommended for supersession) in the second meeting of the D.P.C./Board? The learned counsel and the departmental representative of the respondent Department had explained that this was correct and although the appellant's score was more than 60 marks in each meeting of the D.P.C./Board; but, since his juniors had higher score than him, they had been cleared for promotion. Upon observation whether the candidates, though junior having higher score than the appellant who had also more score than 60 marks could be preferred in consideration of promotion without giving any regard to appellant's seniority and more score than 60 marks which was the minimum threshhold fixed for promotion as per policy of WAPDA and Federal Government. Both the learned counsel and the departmental representative did not give any satisfactory answer, as to why the appellant who had crossed the threshhold of minimum of 60 marks in the each meeting of the D.P.C./Board could not be approved for promotion and his juniors (6+14=20) had been promoted. This was mala fide, as the respondent-Department could not give any justification or provide any support of rules, which had held the promotion of the appellant who had more score than 60 marks in each meeting of the D.P.C./Board. There was no defence from both the learned counsel and the departmental representative. This was also an irony of the appellant's rate that after his deferment in the first meeting and after non---approval/recommendations of supersession in the second meeting of the D.P.C./Board, the respondent Department had not informed him of the causes of his failure of non-clearance by the D.P.C./Board. This was also strange, that the appellant who had 65.8 marks in the first meeting of the DPC/Board had been deferred and when his score was still higher i.e. 66.2 marks, he had not been approved for promotion (i.e. Recommended for supersession) in the second meeting of the D.P.C./Board. This was totally mala fide and victimization of the appellant.
Upon this, the learned counsel as well as the departmental representative had stated at Bar that in both the meetings of the D.P.C./Board, the appellant had been deferred for want of one more report and not recommended for supersession in any way. This was confirmed by them. They had also assured that appellant's name would again be considered on merits and if he met the minimum threshhold i.e. More score than 60 marks, he would be considered for promotion in the next meeting of the DPC/Board which was to be convened very shortly, as the ACRs for 1993 were due in this or next month.
7. Under the aforementioned circumstances and after hearing the parties, we find that the appellant's A.C.Rs. Score was 65.8 marks in the first meeting of the DPC/Board and 66.2 marks in the second meeting of the D.P.C./Board and each time it was more than 60 marks of minimum threshhold fixed for promotion from B-18 to B-19 posts by WAPDA/Federal Government and in absence of any policy/rule to promote the juniors having higher marks than 66 marks, how could the appellant be ignored who was far senior to (20) juniors promoted earlier and who had also better score than minimum threshold of 60 marks. This was mala fide and not sustainable under any relevant policy/rule of the respondent Department/Federal Government.
8. However, as per assurance given .By the learned counsel and representative of the respondent Department to consider appellant's case for promotion in the next meeting of the DPC/Board and appoint/promote him as Director (B-19), if his service record is free of adverse remarks and he meets the threshhold of 60 marks fixed for promotion as per relevant policy of respondent Department/Federal Government and since appellant had been deferred by the DPC/Board in the last two meetings, no real damage towards his seniority has been done as yet and after promotion he will be able to regain his seniority over juniors (20) promoted earlier. Accordingly we direct the respondent Department to reconsider appellant's case of promotion as Director (B-19) within next two months, if there is nothing adverse in this ACRs and his score is more than 60 marks i.e. Minimum threshold fixed for promotion to B-19 post. The question of the consideration of foreign reports is not ceaseable under rule 2.41, as quoted by the learned counsel for the respondent- Department and there is no legal exigency to quantify the said foreign. Reports, when already the respondent Department have held these foreign service A.C.Rs. Satisfactory/good and without any negative effect. After consideration and approval of promotion by the respondent-Department, the appellant shall regain his seniority with all consequential actions in view of his last deferments by the DPC/Board. The appeal is accepted to this extent. No order for costs.