' S. NASIM HAIDER (MEMBER).---This appeal emanates from the impugned order of the Chief Secretary, Government of Sindh as contained in U.O. No, SO-III-(S&GAD)-3-82/83, dated 3-12-1993 of the Government of Sindh, Services and General Administration Department, communicating rejection of the recommendations of the D.P.C. To allow move-over to the appellant from BPS-17 to BPS-18 for the reasons recorded therein.
2. The brief facts of the case are that the appellant, who was serving as P.D.S.P. (Prosecuting Deputy Superintendent of Police) BPS-17, in Police Department, was transferred to Law Department with effect from 142-1989 as Deputy District Attorney BPS-17, reached the maximum of BPS-17 on 1-12- 1989 and became due for move-over to BPS-18 with effect from 1-12-1990. His case for move-over was considered by the concerned D.P.C. Held on 26th September, 1993 which recommended him for move-over from BPS-17 to BPS-18 from the due date i.e, 1-12-1990. However, this recommendation of the concerned D.P.C. As turned down by the Chief Secretary Sindh vide his orders, as contained in aforesaid U.O. No, dated 3-12-1993, of the Services and General Administration Department addressed to the Secretary Law, Government of Sindh and its communication to the appellant followed by the appeal before the Chief Minister, Sindh dated 15- 2-1994 which remained undecided for 90 days thereafter. Hence, this appeal was filed before this Tribunal.
3. We have heard Mr. Abu Talib Kakepote the appellant who presented his case himself and Mr. Abdul Latif Ansari, the learned A.A.-G. We have also perused the record of this appeal.
4. The points for the consideration and decision of this appeal are:
(i) Whether the appellant was entitled to move-over from BPS-17 to BPS-18 and if so from what date. The undisputed fact is that the appellant was due to move-over from BPS-17 to BPS-18 with effect from 1-12-1990 as certified by the District Accounts Officer, Hyderabad vide his Certificate dated 17-1-1993 (Annexure 'A' of this appeal), not disputed, the fact that the matter was considered by the concerned D.P.C. On 26th September, 1993 which recommended him for move-over from BPS-17 to BPS-18 is not denied by the official respondents or the learned A.A.-G.
(ii) Whether the rejection of the recommendations of the concerned D.P.C. By the Chief Secretary as contained in aforesaid U.O. Dated 3-12-1993 was in accordance and in consonance with the move-over policy of the Government of Sindh as in vogue and applicable on 1-12-1990 i.e, date on which the appellant became entitled for the move-over from BPS-17 to BPS-18. According to the documents produced by the official respondents through the learned A.A.-G. The move-over policy framed by the Finance Department (SR Wing) Government of Sindh, on 12th June, 1986 was amended on 15th June, 1992. Therefore, the policy as laid down in 1986 and not the amended policy as laid down in 1992 was applicable/in vogue on 1-12-1990, the relevant date on which the appellant became due for move-over from BPS-17 to BPS-18. Further sub-para. (ix) the conditions for move-over from BPS-17 to BPS-18 in 1986 were: ' In allowing move-overs the competent authotity should ensure that the confidential reports of the concerned employees are:--
(a) Free from adverse remarks for the last five years.. In case an employee fails to fulfil this condition, he shall wait at the maximum of the pay scale till he has earned in succession the requisite number of reports without adverse entry and his move-over shall take effect from 1st December of the year in which the last such report is earned.
(b) Average to good in the case of move-over to scales' 17 and 18 (The conditions laid down in ix(c) and (d) are not relevant as these pertain to move-over to BPS-19 and BPS-20)."
5. It is, therefore, crystal clear that this policy which remained in vogue till 15th June, 1992 when amendments were made wherein, it was the prescribed law/rule/regulation that governed the case of the appellant for his move-over from BPS-17 to BPS-18. The new conditions of having at least two good A.C.Rs,, without adverse entries during the last 5 years inclusive of the year of move- over were prescribed subsequently in 1992 and therefore are not applicable to the appellant.
According to the orders of the Finance Department, dated 15th June, 1992 these new/add conditions were effective from the date of issuance viz. 15th June, 1992, and therefore, cannot be applied with retrospective effect i.e, 1-12-1990. Even otherwise, according to the Interpretation of the Statute and General Clauses Act no order specially with financial implications shall take effect retrospectively unless so spelled out specifically in the body of the order itself. It is therefore crystal clear from the above said two documents produced by the official respondents/learned AA.-G.
That the move-over policy as framed by Finance Department Government of Sindh on 12th June, 1986 was applicable to the appellant's case for move-over from BPS-17 to BPS-18 because he became due for the same on 1-12-1990 and cannot be governed by the revised policy as framed by the Government of Sindh Finance Department on 15th June, 1992.
6. However, to examine the matter, threadbare, we would like to point out the impugned orders of the Chief Secretary dated 3-12-1993 arc based on the alleged grounds that:
(i) The A.C.Rs, of the appellant for the year 1987 contains adverse remarks, and
(ii) the appellant has not earned two good A.C.Rs, during the relevant 5 years. The Tribunal therefore called for the A.C.Rs, for the Calendar years, 1985, 1986, 1987, 1988 and 1989 i.e, the relevant 5 years for the purpose of move-over of the appellant from BPS-17 to BPS-18. In the A.C.R. Of the appellant for the year 1987 (14-1-1987 to 13-12-1987) in the relevant Parts II, III and IV the appellant has throughout earned 'B' (Average) grading from the Reporting Officer (S.S.P. Who also declared him fit for promotion, in his turn. However, the first countersigning authority viz. D.I.-G., Hyderabad has observed as under: "An experienced officer yet quite clueless about legal procedure. I had to order S.S.P. To vet his papers, thoroughly before forwarding anywhere."
' The wordings used by first countersigning officer (D.I.-G.) are self-contradictory because he has declared the appellant simultaneously to be an experienced officer and quite crueless about legal procedures. Secondly he has not specifically down-graded the grading given by the reporting officer from 'B' (average) to 'C' (below average). Thirdly the remarks of the second Countersigning Officer i.e, the then I.-G.P. Sindh are simply "seen" again without down-grading the 'B' (average) grading to 'C' (below average), leading to the presumption that he has not applied his mind to the conflicting opinion, of the Reporting Officer and the First Countersigning Officer. In the absence of specific agreement with either of the two, it would remain inconclusive. In the instant case the balance of convenience is in favour of the assessment of the Reporting Officer, because wherever a Countersigning Authority disagrees with remarks of the Reporting Officer, under the principles of natural justice, fair play and equity he is expected to record specific reasons and instances for that difference of opinion.
7. Therefore, in view of this discussion, we are unable to subscribe to the view of the Chief Secretary that the A.C.R. Of 1987 of the appellant contained adverse remarks, specially because the same were never communicated to appellant, leading to the presumptions the so-called adverse remarks of the First Countersigning Officer were not treated as adverse by his superiors. As regards the 2nd objection of the Chief Secretary that the appellant had not earned two good A.C.Rs, during the relevant 5 years suffice it to say, this condition was not applicable to the appellant because the revised policy was enforced on 15th June, 1992 whereas the appellant was due for the grant of move-over on 1-12.1990 and was governed by the conditions as laid down in Finance Department Instructions, dated 12th June, 1986, which only required average to good A.C.Rs, 7-A. The learned A.A.-G. Has frankly conceded the above factual legal position that the conditions as laid down by F.D. On 15th June, 1992 are not applicable to the case of the appellant.
8. In view of the aforesaid discussions we unanimously allowed the appeal and set aside the impugned orders of the Chief Secretary, Government of Sindh as contained in U.O. No, SO-III- (S&GAD)-13-82/93, dated 3-12-1993 and communicated to the appellant through his administrative department, with no orders as to costs, as already announced in our brief order dated 14-11-1994 to be followed with detailed orders.