' The appellant Mr. Aziz Ahmad Hashmi, Chairman, Intermediate and Secondary Education Board, Bahawalpur, now Sargodha, had earlier some dispute about his seniority which was settled by the Notification dated 3-11-1992 placing him at No, 2 of the Seniority List. He was granted move-over from BS-19 to BS-20 with effect from 1-12-1989 vide the order dated 21-2-1991 after getting clearance from the Provincial Selection Board. He read a news item appearing in the Daily Jang dated 5-4-1993 that respondent Nos. 4 to 6 were awarded promotion in BS-20 ignoring him altogether. Thereupon he preferred a representation to the Governor of the Punjab on 8-4-1993. Of course he waited for 90 days but did not get any response. However, he learnt in the meantime that his promotion to BS-20 was deferred till final out-come of a probe being held in connection with reconstruction of his A.C.Rs, for the years 1985 and 1986.
2. He assailed correctness of the aforesaid view of the Provincial Selection Board on the ground that those very A.C.Rs, had already been considered by it while granting him move-over in BS-20 and that there was no idea of using them as lever to refuse him regular promotion to BS-20. He averred that he was directed to answer certain queries by a Note dated 24-6-1993 in regard to those A.C.Rs, and that having satisfactorily replied those, he thought that the matter was finally closed. After issuance of the notification dated 13-4-1993 (Annexure C) respondents Nos.4 to 6 were not only regularly promoted to BS-20 but allegedly their case for further promotion to BS-21 was also being processed. It was the contention of the appellant that he had not been given any formal intimation through any endorsement whatsoever that his case had been deferred and that all those proceedings were conducted surreptitiously with a view to keep him in the dark. He repeated his claim for seniority over the respondents asserting that his promotion to BS-20 should not have been so deferred or delayed on the pretext which had already been finally disposed;
3. Among the grounds taken up by the appellant, it was stated that once his A.C.Rs, for the years 1985 and 1986 were considered for the move-over, those could not have been disregarded as it amounted to negation of a well considered decision of respondent No,1 based upon the recommendation of the Provincial Selection Board, and that any such stance would reflect inconsistency on his part. In addition, he averred that the impugned notification was based upon mala fide intention as all concerned had ignored his right without any lawful justification" with a view to give undue benefit to respondents Nos.5 and 6 and correspondingly to damage him in his career notwithstanding the fact that he was senior to them and as such entitled to promotion to BS-20 on the settled principle of seniority-cum-fitness. He specifically expressed that he had fallen victim to the malicious actions and machinations of respondent No,6 who being the D.P.I. Schools, Punjab was in a position to harm him because of the dispute in regard to seniority referred to earlier. He filed an affidavit (Annexure H) indicating how:-
(i) his A.C.Rs, for the years 1972-1984 were misplaced by him intentionally;
(iii) he got his A.C.Rs, for the years 1985-86 written by an Officer junior to him;
(iv) the so-called probe in regard to upgradation of those A.C.Rs, was stopped by the Government and yet it was being further prolonged to deny him promotion;
(v) he had initiated his A.C.R. For 1992 whereas he was not competent to do so.
(vi) he tried to create smoke screen by writing a letter to Mr. Usama Masood, though no more the Secretary, Education informing him that he had already written the report; and
(vii) he was trying to consummate his motive to get BS-20 and also BS-21 earlier than the appellant who by virtue of his indisputable seniority would have got those scales earlier than him.
' He maintained that the A.C.R. For the year 1992 was totally irrelevant for considering his case for promotion to BS-20 on 14-2-1993 as no such A.C.R. For the said year of his juniors including respondents Nos.4 to 6 was at all considered. This was how, according to him, he was treated discriminately qua his juniors, reflection avowed prejudice and bias against him.
4. In their written objections, respondents Nos.1 to 4 submitted that the appellant's case was considered by the Provincial Selection Board in its meeting held on 4-2-1993 and that the recommendation of the Provincial Selection Board was as under:-- "His case was deferred till the final out-come of the probe regarding alteration/reconstruction of the A.C.Rs,. Of the Officer for the years 1985, 1986".
' It was added that on conclusion of the inquiry, the appellant's case was again placed before the Provincial Selection Board in its meeting held on 28-31994 but the decision again was:- ' Deferred till receipt of his missing A.C.R. For the period from 1-1-1992 to 26-7-1992".
' It was explained that a probe was being conducted by the Additional Secretary (Establishment) in regard to disappearance of his aforesaid A.C.R. However, it was conceded that he was allowed move-over from BS-19 to BS-20 with effect from 1-12-1989 but it was asserted that his entire record had to be placed before the Board to consider his regular promotion to BS-20. They admitted that respondents Nos. 4 to 6 were granted regular promotion to BS-20 on the recommendations of the Provincial Selection Board vide the Notification dated 13-4-1993 without taking into account their A.C.Rs, for the year 1992.
5. Respondent No,66 assailed the appeal to be untenable inasmuch as it was based upon a representation dated 8-4-1993 made against an order dated 13-4-1993 and thus being pretimed could not be sustained in law. He added that the memo of appeal filed on 4-8-1993 contained information which came to the appellant's knowledge on 8-4-1994 and that this anomaly revealed an attempt in having filed the appeal beyond time. He justified his promotion to BS-20 and deferring that of the appellant "on the ground of some points needing clarification for obtaining information". He highlighted that substitution of the appellant's A.C.Rs, for the years 1985, 1986 and the consequential probe into their replacement constituted sufficient ground for the Provincial Selection Board to defer his case for promotion; that the allegation of mala fides levelled against him as also the Board consisting of 8 members was highly implausible inasmuch as it was open to them to look into the "fraud" committed in replacing the appellant's A.C.Rs, He added that the principle of seniority-cum-fitness did not apply to promotion to BS-20 in that it was made entirely on the basis of selection on merits under the provisions of the Punjab Education Department (School Education), Recruitment Rules, 1987 and that seniority was only an aspect to be kept in mind alongwith other aspects in determining one's merit. He denied if he had indulged in any manipulation or machination to harm to the appellant. He assailed competence of the Tribunal to issue a direction for disciplinary action against him for having failed to write the appellant's A.C.R.
For 1992 in time.
6. Respondent No,5 did not file written objections probably because of his retirement.
7. It was an incontrovertible fact that the appellant was senior to the respondents, and his seniority was established by no other instrument than the judgment dated 7-9-1987 (1988 PLC (C.S.) 862) of this Tribunal passed in his favour in the earlier round. Ordinarily, he should therefore, have been promoted to BS-20 on regular basis along with respondents Nos. 4 to 6 who being junior to him should not have been accorded a treatment showing discrimination against him by deferring his case four times for reasons not providing" "lawful justification" in terms of PLD 1994 SC 233. The first of such reasons was that he got his A.C.Rs, for the years 1985 and 1986 altered/replaced through "fraud". Suffice it to say that those A.C.Rs, were reconstructed under the orders of the Secretary, Education on acceptance of the appellant's complaint that those were deliberately down-graded at the instance of respondent No,6 for no other reason than to have a go over him getting BS-20 and BS-21. These were the scales which respondent No,6 could not possibly have been given because of his comparatively junior position vis-a-vis. The appellant and therefore the only way to throw him out of competition was to get his promotion delayed or deferred on one pretext or the other. The first attempt in this behalf on his part was to get average reports for the appellant for the years 1985 and 1986 through the Director, Education, Rawalpindi under whom the appellant was then working. The then Secretary, Education (Mr. Tariq Sultan) appreciated the appellant's version for bias and in the exercise of his power under para. 31 of the relevant Instructions regarding writing of Annual Confidential Reports directed their reconstruction. As a result those were upgraded and the Secretary explained the whole episode before the Provincial Selection Board how he thought that an "excellent" officer like the appellant was exposed to malicious strife on the part of the "interested persons" like respondent No,6 in manipulating just average reports for him through his Reporting Officer. The minutes of the meeting of the Provincial Selection Board dated 26-114990 bear testimony to this effect. These were: "It was observed that the officer had been rated as average for the year 1985, 1986, 1988 (partly) and 1989 (partly). However, he earned good reports for the year 1987 and very good partly for the years 1988 and 1989.
' It was brought to the notice of the Board that the A.C.R. Of MrAziz Ahmed Hashmi for the years 1985 and 1986 had been reconstructed by the Reporting/Countersigning Officers on the instance of Education Department and his rating was changed from average too good for which there was no provision in the rules. However, the Secretary Education informed the Board that Mr. Aziz Ahmed Hashmi was an excellent officer whose A.C.Rs, were deliberately got downgraded with a view to damaging his future promotion prospects by the interested persons. He further stated that Mr. Aziz Ahmed Hashmi was an officer of established competence and ability and it would be a pity if such an officer was denied the benefit of move-over to the next scale. He strongly recommended that the officer be allowed to move-over to BS-20 and should not be made to suffer for reasons beyond his control. The Board gave due consideration to the assessment of the officer by the Administrative Secretary who directly evaluated his performance. It was, therefore, decided that Mr. Aziz Ahmed Hashmi be given move-over from BS-19 to BS-20 with effect from 1-12-1989 as proposed by the Education Department."
' The Board agreed with the view point of the Secretary; approved the reconstructed A.C.Rs, of the appellant and granted him move-over to BS-20 after taking a thoughtful decision. Later, the Chief Minister in his sagacity approved those minutes and passed operative orders in allowing the move-over to the appellant. This decision operated as fait accompli of the matter and the so- called probe, initiated at the instance of the "interested persons" namely respondent No, 6 was dropped vide U.O. Note No, SO (Confdl.5)4-1/90, dated 17-2-1994. It is pertinent to note that the Secretary, Education assessed the appellant to be an "excellent officer" in those proceedings.
Evidently his assessm ent superseded all other remarks. Ironically, respondent No, 6 would have the audacity to call it "fraud".
8. It was really unfortunate that such a well-considered decision of a body like the Provincial Selection Board was not conceptually accepted by respondent No, 6 and his accomplices in the department and they missed no opportunity to make it a live-matter. It was their assertion that the order (letter) allowing reconstruction of the A.C.Rs, for the years 1985 and 1986 of the appellant was recalled and that the so-called probe was again started. I am afraid the decision once taken by the Government in allowing reconstruction of the A.C.R. Was fmal all the more when it was approved by the Provincial Selection Board and the Chief Minister. The attempt to recall that decision was without authority as held in 1990 SCMR 1414. The principle was that Government decisions may be altered subsequently on the ground of nullity but not bn the ground of fairness and propriety. Para. 31 of the Instructions regarding writing of Annual Confidential Reports authorised the Government to reconsider the A.C.Rs, and the decision taken in exercise of those powers could not be called a nullity or subsequently set at naught. This was how the bogey of the second or the subsequent probe, for which the appellant's selection was deferred, was absolutely bereft of "lawful justification". In fact the worthy Members of the Board should have gone a little behind the smokescreen created in this behalf and should not have changed its own decision, or for that matter the decision of its previous Members. It was indeed something solemn besides being final in all respects.
9. Assuming the worst, (without conceding) those A.C.Rs, were said to contain average assessment of the appellant. Admittedly those were not communicated to him because those were not rated adverse. Any report not communicated could not be regarded as adverse. Besides, lately it has been decided in PLD 1992 SC 144 that even average reports are to be taken to be "generally good" for the purpose of move-over/promotion. Instead of going into a second probe, the Board should have accepted the A.C.Rs, as "generally good" for the purpose of allowing promotion to the appellant. Deferring it for such a reason really served the malicious purpose of respondent No, 6 or the "interested persons" to whom the Board itself made a cryptic reference in its sagacity long ago.
In other words, by delaying the appellant's promotion, the "interested persons" achieved the object which the erstwhile Board was graciously keen to avoid. This was something inconsistent. The record reveals that the appellant's A.C.Rs, for 1972 to 1984 were as well got misplaced. His assertion was that it was yet another stance of mala fide act done by respondent No,6. However their duplicates were traced out but only after a great effort. Next, his A.C.R. For 1992 was said to be missing for which the Board deferred his promotion in its meeting dated 28-3-1994. Respondent No,
6. On his own showing had played a considerable role relating to it. He claimed to have had initiated it in his capacity of the DPI and sent to it Mr. Usama Mauood the then Acting Secretary, Education alongwith other enclosures. The concerned official marked on the letter that it was not found among the documents sent to him against the particular serial number. Later, however, he was made to write a fresh A.C.R. Under the directions of the Minister for Education but it was again wrongly sent to Mr. Usama Mauood instead of the Education Secretary and thereby it as well became untraceable. This was how the Provincial Selection Board felt the need of examining it in any next meeting. I wish it should have been noted by the Board why it was the unfortunate appellant alone whose one A.C.R. Or the other was misplaced or lost each time. In contradistinction, the A.C.Rs, for 1992 of respondents Nos. 4 to 6 were not awaited for by this very Board when they allowed them regular promotion. Insistence upon its production only in the appellant's case was something enigmatic as also discriminatory. It could however evidently be connected with the efforts of "the interested persons" operating against the appellant. The simple answer was that if such a report was not needed to assess the respondents' case, it was equally not needed in the appellant's case. Promotion has to be given from "a due date" i,e, when the vacancy occurs and not when the Provincial Selection Board meets. In the appellant's case the "due date" fell much earlier than expiry of the calendar year 1992 and hence it was entirely irrelevant to call for the A.C.R. For the said year.
10. Next, admittedly this was the A.C.R. Of the appellant initiated by respondent No,6. Himself. He was indisputably junior to the appellant. There was no gainsaying the fact that a junior officer how- so-ever exalted position he might be occupying vis-a-vis his senior, could not write the latter's A.C.R. 1984 PLC (C.S.) 490 is an eloquent authority directly on the point. The appellant submitted his Form after filling its preface, to the Secretary, Education realising that respondent No,6, even though posted as DPI (Schools), was not competent to write his report. This was the correct procedure laid down in the Instructions, Para-1, Part-7 of the Esta Code. Respondent No,6 should have himself exercised care to avoid writing A.C.R. Of his senior but he himself filled its first page and initiated it with a tenacity of purpose whereafter he sent it to Mr. Usama Mauood in a colourable manner. The irony was that the report initiated by respondent No,6 with eagerness, was not coming forth. What else could be the purpose except that he did not like the idea of allowing the appellant to have fruit of his seniority for which he had to come earlier to this Tribunal. It looked to be a sheer attempt to frustrate that judgment, and that too by a junior in writing an A.C.R. Of his senior blatantly against the Rules. What had simply behoved respondent No,6 was to have taken off his hands leaving the matter to the Secretary to whom the appellant had rightly submitted his Form. No explanation was offered by him in this context and hence the A.C.R. In question initiated by him, was null and void. It would have been a different case had the appellant been superseded but such was not the case here. Correspondingly the Secretary Education should have been alive to this requirement of the Rules and directed respondent No,6 to leave the matter to him.
11. This Tribunal had directed in its interim order dated 9-2-1995 that the appellant's A.C.R. For the year 1992 was not relevant for considering his promotion to BS-20. Unluckily the direction of the Tribunal was not paid as much heed to and the matter was again put off on a questionable ground. Reliance was placed upon PLD 1994 SC 233 in which the Supreme Court took serious notice of delay on the part of the Board as there was no "legal justification" to defer promotion of the appellant in that case. Further in their recent judgment reported in 1995 SCMR 650, four points were evolved by the Supreme Court namely (i) that promotion may not be delayed to help others wittingly or unwittingly in their mala fides (ii) though promotion could not be claimed as of right yet it could not be denied either on account of mala fides on the part of some junior officers, (iii) if there was no adverse entry against the concerned officer, he was entitled to promotion as a matter of right and (iv) the Board (there) should have "acted justly, fairly and reasonably having full regard to the facts and circumstances of the case before it. The Board did not even weigh and examine the merits of the claim pleaded by the respondent. This indeed tantamounts to the refusal on the part of the Board to exercise quasi judicial discretion vested in it under the law." It was held in 1990 SCMR 999 that any mala fide action would be breach of terms and conditions of service.
Deferment of the appellant's case again and again on pretexts not strictly justifiable would run counter to their bona fides. Counsel submitted that the precedent case reported in PLD 1994 SC 233 was on all fours with the present one in that here too, the Provincial Selection Board adjourned the appellant's case either on the ground of a decided matter or on the basis of an A.C.R. Not relevant as it pertained to the period occurring much after the "due date" besides the fact that it was initiated by a junior against a senior.
12. The learned District Attorney in reply pressed that the Board could call for record to complete its assessm ent, but he could not cite any authority contrary to the one referred to above. He was not able to dispel the impression that the three reasons advanced for deferring the appellant's case were stereotyped and indeed furnished no "legal justification" as construed by the Supreme Court for prolonging disposal of the case by adjourning it four times.
13. Mr. Maftoon, Advocate counsel for respondent No, 6 contended that the appeal in its present form was not competent particularly when it sought promotion; that conversely the respondent's promotion could not be declared null and void; and that the appellant's promotion was only deferred meaning that it was not fmal and as such not amenable to the appeal. He explained that the appellant had got his A.C.Rs, reconstructed in the absence of the Secretary, Education through the help of officers who had soft corner for him and that the relevant order was rightly recalled. He cited a few authorities like PLD 1991 Lah. 196, 1989 SCMR 411 and 1989 PLC (C.S.) 622 in support of the principle that there was no locus poenitentiae to rewrite the reports or to assail the order recalling the reconstructed A.C.R. As held in 1988 PLC (C.S.) 609 because no subsequent alteration was permitted. He reiterated that the memo of appeal dated 4-8-1993 surprisingly referred to affidavits Annexures 'H and I' originated in 1994 on different dates meaning that the appeal was not filed on 4-8-1993 and that instead it was filed beyond time say somewhere after 8-4-1994.
14. It will be appreciated that all these, points have been by and large considered above. In fact respondent No, 6 has no locus standi to put up all these defences. It reveals that he was eager to by-pass the appellant by hook or by crook. Otherwise the appellant's case was conceded by the department in their separate written objections. The department could not disown its own order directing reconstruction of appellant's A.C.Rs, nor did they controvert that respondent No, 6 being junior to the appellant, could not write his A.C.R., but they explain how the A.C.R. For the years 1992 was relevant vis-a-vis the "due date" of promotion of the appellant when it awaited in the case of the respondents. In a way therefore department seems to have virtually accepted the appellant and the spanner, if any, was being thrown in his way by respondent No,6 as one of "the interested persons". He proved to be junior and was obviously neither here nor there to compete against the appellant. All his effort was mala fide. He had retired and was no more even in the arena. Further, his objections appeared to be fishy and obstreparous. It did not lie with him to state that the Government did not have power to reconstruct the appellant's A.C.R. No such plea was taken up by the Government. Further, if the Additional Secretary allowed reconstruction in the absence of the Secretary who happened to be on leave former's orders would not become inchoate merely because the same had to be passed by the latter. It depends upon distribution of work. Nothing was shown if the Additional Secretary was not competent to order reconstruction of such reports.
Further' the Secretary approved those before the Board and hence had his blessings also.
15. As for annexures H&I bearing dates of 1994, the objection was overruled in the interim order 29- 1-1995 in detail. It needs no repetition. The memo of appeal was prior in time and registered quite sequentially in the register of the Tribunal. Presentation of Annexures, early or late did not matter much all the more when those were certified copies of public documents. The department did not raise any such objections. The contest is between the appellant and the department. Respondent No,6, being true to his pretension appeared to have had raised a bogey of frivolous objection. The appeal was initiated on a press report publishing the order later formally notified. The appellant was ignored; he felt aggrieved, and could legitimately bring the appeal. All the objections of respondent No,6 being malicious are overruled.
16. The appeal is allowed to the extent that the reconstructed ACRs of the appellant for the years 1985 and 1986 shall hold good; that the so-called probe once having been stopped by the government shall not be reopened; that his A.C.R. For 1992 shall not be relevant for consideration of his promotion to BS-20 from the due date just as it was not relevant in the case of Respondents Nos.4 to 6; that the A.C.R., if written by respondent No,6, is declared null and void; that since his record did not contain any adverse remarks there was no "legal justification" to defer his promotion, that he is declared eligible to get it. The Department is directed to place it before the Provincial Selection Board in its next meeting and it shall be decided in the light of this judgment.