S.M. ISHAQ (MEMBER): --The appellant, Khalid Siddiqui, was initially appointed as Income-tax Officer in BPS-17 and was subsequently placed in BPS-18 with effect from 28-5-1982. For the period 31-12-1982 to 31-7-1983, however, adverse remarks were recorded in his ACR but, on his representation, they were expunged on 12-12-1991. The appellant's case, in substance, is that when his representation for the expunction of the adverse remarks was pending before the Chairman, Central Board of Revenue, (respondent No. 2) the case for promotion of the Income-tax Officer to that of Inspecting Assistant Commissioner was initiated and the Central Selection Board recommended the appellant's supersession on 16-6-1991. Consequently, several persons, including junior to the appellant, were promoted as Inspecting Assistant Commissioners vide Notification dated 4-8-1991, 8-9-1991 and 3-10-1991. The appellant feeling aggrieved submitted a representation to the Secretary, Establishment Division, which was responded on 12-5-1992 in the following words:-- "Your representation addressed to the Establishment Secretary has been considered in the Establishment Division. It has been observed that the decision of the competent authority to supersede the officer was not solely based on the report containing adverse remarks (which have since been expunged) but due to other reasons also. Therefore, your representation for pro forma promotion as IAC cannot be acceded to."
On receipt of this reply the appellant filed an appeal before the Service Tribunal but during the pendency of the appeal he was promoted to BPS-19 vide Notification dated 30-1-1993. The appellant's representation dated 25-2-1993 for the ante-dation of his promotion was rejected on 27-5-1993 and then he filed the present appeal before this Tribunal on 7-7-1993.
2. The appellant's case is that although he was promoted subsequently yet his promotion was not given effect from 4-8-1991 when his juniors were promoted. According to him, he was superseded due to the adverse remarks recorded for the period 31-12-1982 to 31-7-198,3 and the average report for the year 1986 as well as the score of 68 marks for integrity. It was maintained that no doubt the adverse remarks were recorded in the appellant's Annual Confidential Report for the said period nevertheless they were expunged by the competent authority on 12-12-1991 and as such there was no justification for superseding him as on the expunction of the adverse remarks the very basis for the appellant's supersession ceased to exist and as such he became entitled to pro forma promotion with effect from the date his juniors were promoted. He referred us to a decision of this Tribunal in the case of Capt. (Retd.) Muhammad Yunus Jaffar v. Secretary, Establishment Division and 25 others (1987 PLC (C.S.)110) wherein it was held that the appellant in that case, on expunction of the adverse remarks, was entitled to promotion from the date from which his juniors were promoted. This view was upheld by the Honourable Supreme Court in the same case vide their judgment reported as 1990 SCMR 657. Subsequently the N: W.F.P. Service Tribunal also took similar view in the case reported as 1992 PLC (C.S.) 16.
3. The other contention of the learned counsel for the appellant is that the average report is no bar for promotion and, therefore, the Central Selection Board had exceeded its charter when it recommended the appellant's supersession in view of the average report for the year 1986. It was emphasized that discriminatory treatment has been meted out to the appellant as in the case of others average reports were not allowed to stand in their way while it was allowed to militate against him. The learned counsel relying on the case reported as 1983. SCMR 34 submitted that such a discrimination in the matter of promotion had been deprecated by the Honourable Supreme Court. The learned counsel also cited examples of as many as six officers in whose cases not only two average reports were recorded but even in one of the cases despite couple of average reports, two poor reports were recorded yet they were recommended and approved for promotion. It was then submitted that the impugned orders whereby the appellant was superseded may be modified while the final order dated 27-5-1993 whereby his request for antedation of his promotion to BPS-19 was rejected may be set aside.
4. The learned counsel for the respondents mainly contended that the appellant was not superseded solely on the ground that adverse remarks were recorded against him for the period 31-12-1982 to 31-7-1983 but due to some other reasons also and as such no benefit of expunction of the adverse remarks could be availed. Moreover, although in the Promotion Policy 60 marks was the criterion for promotion to BPS-19 yet the marks obtained for "quality and output of work" and "integrity" are important factors in determining the fitness/comparative merit of an officer and it was in these circumstances that the Board did not consider his score of 68 marks to be sufficient for the Income-tax Department. The learned counsel maintained that the appellant's prayer for pro forma promotion is not legally maintainable and as such his appeal deserves dismissal.
5. After hearing both the parties we are of the view that the contentions of the learned counsel for the appellant are not devoid of any merits. We find from the minutes of the meeting dated 16-6- 1991 that the very basis for the appellant's supersession were the adverse remarks recorded for the period 31-12-1982 to 31-7-1983 and the average report recorded in the yew 1986 as well as the lower score under quality of work and integrity, compared to others. For the sake of facility the extracts from the minutes of Central Selection Board's meeting dated 16-6-1991 are reproduced below:-- Mr.Khalid Siddique (Seniority No. 15).
Out of 19 reports initiated on his performance he has been graded Good in 17 and Average in 2 reports which pertained to the years 1983 and 1986. His report for 1983 also contained adverse remarks. His score for Overall Assessment (68) and Quality and Output of Work (68) was above the minimum threshold. His score for Integrity was also 68 which was not considered sufficient for an institution like Income-tax.
In view of his report for 1986 being average, 1983 report containing adverse remark and score of 68 for Integrity, the Board recommended his supersession."
6. As far as the first submission is concerned, the appellant's counsel has rightly submitted that the adverse remarks recorded in his Annual Confidential Report for the said period cannot stand in his way because they were expunged by the competent authority and, therefore, when his case for promotion came up for consideration subsequently he should have been given pro forma promotion with effect from the date his juniors were promoted. The case of Capt. (Retd.)
Muhammad Yunus Jaffar (supra) on which the appellant placed reliance in support of his contention was that his case for promotion was firstly deferred till his appeal against the adverse entries in his ACRs was decided and subsequently when he succeeded the appointing authority approved him for promotion with effect from the date of the approval. He approached the Service Tribunal and it was held that the recommendation of the Departmental Promotion Committee made subsequently should be deemed to have been made with effect from the date when for the first time his batchmates were considered and his name was deferred. The Hon'ble Supreme Court did not interfere with this view of the Tribunal. In these circumstances the adverse remarks recorded for the year 1983 and which had inter alia been made the very basis for superseding the appellant are of no avail to the respondents as they were expunged by the competent authority when they came up for consideration.
7. As regards the other submission, we are of the opinion that if the appellant was superseded due to average report then his grievance that respondents had discriminately treated his case is well- founded as we have seen from the record that several persons who had been given more than two average reports, were promoted in the same batch, although average report is no bar for promotion.
8. The appellant's third submission that he had secured marks more than the prescribed limit and yet he was superseded can also not be lightly ignored. However, the appellant's alternative contention that if the respondents were not satisfied with the criteria laid down in the Promotion Policy then they should have fixed some other standard for promotion but that too had not been done and, therefore, the deviation from the laid down policy is not proper, appears to be valid.
Seniority is not subservient to blood count or the quantification where the basis for selection/promotion is "Seniority-cum---Fitness". When such is the basis for selection, seniority cannot be relegated to a secondary position. The principle that officers who had secured higher score in quantification i.e. "Quality and Output of Work" and "Integrity" should be given preferential treatment as far as the promotion is concerned, as has been followed by the Central Selection Board in this case, has no legal force as nowhere it is provided in the rules that promotion shall be made in the order of score secured by the officers, ignoring all other factors, including seniority. The Promotion Policy envisages that whosoever touches the score of 60 marks under the Overall, Quality and Output and Integrity, becomes eligible for promotion. It will be advantageous to reproduce below the relevant extracts from the Promotion Policy:-- "4. Posts carrying Basic Pay Scale 19 are generally supervisory posts. Supervision can be effective only if the supervisor has the relevant experience. These officers are also required to make contribution to policy-making at the lowest rung of the policy-making hierarchy. For promotion to these posts, therefore, a civil servant must fulfil the following requirements:---
(a) Qualifying service: possess 12 years service as an officer subject to the provisions contained in Establishment Division's O.M. No. I/90/80-R--II(A), dated 2-6-1983.
(b) Eligibility threshold: attain a minimum score of 60 marks in the CRs in accordance with the formula given in the addendum.
(c) Qualifications: as prescribed by the relevant recruitment rules.
(d) Relevance of experience: possess experience relevant to the functions of the post to which promotion is being made.
(e) "Quality and Output of Work and "Integrity": marks calculated in accordance with the formula in the Addendum shall be important factors in determining the comparative merit of an officer."
9. There is no doubt that the marks calculated in accordance with the formula under the "Quality and Output of Work" and "Integrity" shall be important factor in determining the comparative merit of an officer as laid down in the Promotion Policy yet nowhere rules provide that this is the only sole criterion and that no weightage is to be given to other factors given at (a), (b), (c) and (d) which relate to the Qualifying Service, Eligibility threshold, Qualifications and Relevance of Experience. Had the marks obtained under Quality and Output of Work and Integrity been the sole factor for promotion then the action taken by the Central Selection Board in superseding the appellant was justified but as we have been able to interpret it, this constitutes only an important factor but does in no way reduce other factors to worthlessness. If the intention of the Government was to consider only those persons for promotion who obtained the highest score in Quality and Output of Work and Integrity then all other factors given above should have been deleted from the Promotion Policy as they remain redundant before the Selection Board. But this has not been done. The Government Policy still retains those factors considering "Quality and Output of Work" and "Integrity" only to be important but not the sole consideration.
10. The record shows that the appellant, who joined the Income-tax Department on 21-3-1977, after qualifying the CSS Examination, was possessing more than twelve years' service at the time of the meeting of the Central Selection Board held on 16-6-1991 and he had also secured more than 60 marks. He also fulfilled other conditions. In our view, after one becomes eligible under the Policy then seniority is the overriding factor as the promotion is usually based on Seniority-cunt-Fitness.
The Central Selection Board has, therefore, more flouted than observed the laid down policy by way of ignoring the senior persons and promoting juniors with higher score under Quality and Output of Work and Integrity. The record placed before us does not show that the Board has any power to change, amend or modify the rules of the policy formulated by the Government. The Board has thus outstripped the authority and exceeded its powers by adopting criteria different from those given by the Government. That adverse remarks washed, which could rightly stand in his way for promotion, average report being no bar to promotion, and prescribed score obtained, the appellant's case for promotion could have been considered favourably based on his seniority but this has not been done. Since only one factor has been considered by the Board while determining suitability for promotion of the officers we direct that the appellant's case be dealt with keeping in view the other factors contained in the Promotion Policy.
11. In the light of the above exposition we remit the case to the concerned authorities to consider the appellant for pro forma promotion in accordance with the rules.
12. No order as to costs.