' MUHAMMAD RAZA KHAN (MEMBER).---The appellant is a senior officer of the Accounts Service having joined the Finance Services Academy on December 15, 1965. He was promoted to BPS-18 in April, 1970, BPS-19 in September, 1973 and BPS-20, on regular basis, in December, 1983. Keeping in view the seniority and performance at several stations and in various capacities he expected promotion to BPS-21 in 1992, He was not promoted and later on in July, 1995 he was also not considered for promotion. His departmental appeals and representations were responded by the office of the respondent No,1 vide letter dated 1-8-1995 which reads as follows:-- "xxx xxx xxx "The undersigned is directed to refer to your Applications No,REP/MYK/95-3 for 23rd May, 1995 and No,REP/MYK/95-4 of 27th May, 1995 on the above subject and to state that in December, 1992 and later in July, 1995, your case for promotion to BPS-21 was placed before the Central Selection Board I. On both occasions, the Board recommended you for supersession. As such, this office is not in a position to take further action on your representation."
' This intimation of supersession and refusal, on behalf of the department, to take further action on his representation against the promotion of junior officers to BPS-21 affected the terms and conditions of service of the appellant who challenged the said order by way of the present service appeal. He has impleaded the then Auditor-General and two previous Auditors-Generals by name as respondents, for the only reason that the fact of his supersession by the CSB-1 was based on the Performance Evaluation Reports given by the said respondents and their predecessor-in-office who had, allegedly, verbally acknowledged of having damaged the career of the appellant to the irreparable limits.
2. We had some serious reservations about the admissibility and maintainability, of the appeal based on two factors. Firstly the appellant had, in the conclusion of his appeal, prayed as follows:-- "7. The undersigned claims the relief to the effect that his Performance Evaluation Reports for the period September, 1983 to September 1993 may be upgraded to 'outstanding' so that they are truly reflective of his outstanding performance and distinguished achievements."
' Secondly, in para. 6 of the appeal it was also stated:: "6. The Honourable Federal Service Tribunal is, therefore, requested to call for my Performance Evaluation Reports for the period 1981 (the year of undersigned promotion to BPS-20 on acting charge basis) onwards to determine if they correspond with the outstanding performance the undersigned has rendered all along this period;"
3. Keeping in view the said prayer made in para. 7 and the required document mentioned in para. 6 of the appeal, following infirmities were noticed in the appeal:--
(a) There appeared to be no final adverse order whereby the appellant was aggrieved which would have affected the terms and conditions of the service. The appeal under section 4 of the Service Tribunals Act, 1973 can be filed only against any such order.
(b) Even if there was an order affecting the terms and conditions, the appeal was not competent before the Service Tribunal under section 4 of the Service Tribunals Act unless the appeal or representation, under section 22(1) and section 22(2) of the Civil Servants Act or any other law or rules are preferred to the department and statutory period for 90 days is allowed to the department for decision on such appeal or representation.
(c) The appellant had impleaded the respondents Nos.1, 2 and 3 by name. No other person, officer or authority has been impleaded. The respondents are not the present incumbents as they have since retired/transferred and are unable to make any changes in the Performance Evaluation Reports already finalized by them. In such a situation no useful purpose can be served by impleading certain serving or retired officers by name, particularly, keeping in view the final prayer of the appeal as to how this Tribunal can pass any order against the respondents whereby the prayer could be implemented?
(d) The guidelines on the subject of Annual Confidential Report or Performance Evaluation Report certainly lays down certain conditions for the rectification of any adverse remarks which could be expunged by the competent Authority on the basis of departmental representations. The Service Tribunal can also modify or set aside the adverse remarks in such reports but whether the performance evaluated as Good' or ' Very Good' can be considered to be adverse and if such report is not adverse whether it could be expugned or upgraded by any Authority or the Tribunal?
(e) The appellant has requested in para. 6 for the production of record and in para. 7 he had asked for the upgradation of his P.E.Rs, from September, 1983 to September, 1993. The relevant record of promotions, confidential reports and the proceedings of the C.S.B. Alongwith all the dossiers and service record of senior officers is placed with the Establishment Division and that Division is the Authority to maintain the record, process the cases and notify the promotions. The Establishment Division is practically the master of the record of senior civil servants including the P.E.Rs, and even if the orders of expunction of any adverse entry or any upgradation of the remark has to be implemented, it will be done by the Establishment Division only. However, the Establishment Division has not been impleaded by the appellant in the present case and we wonder whether the required results would be achieved in such a case of non-joinder of necessary parties. Although such a party can be added and request to this effect was also made by the appellant but later on he withdrew the application for amendment, which will be discussed hereinafter.
(f) The main stress of the appellant was for the upgradation of the assessment for a period of ten years. Assessm ent and evaluation was purely a personal matter. The law and the rules authorise certain functionaries to assess, report and paint the pen-picture of the employees serving under them. This is clearly on purely personal evaluation by the Reporting Officer as well as by the Countersigning Officer and no other person appears to. Have a right or have an Authority to substitute his remarks and observations for that of the persons so authorised by the rules. It is a fact that the negative remarks are expunged in the appeals by the appellate authority or by the Tribunals and Courts but in addition to the correction of adverse entry whether it was possible to supplement 'Good' or ' Very Good' grading in the annual assessment and whether such grading can be substituted with the ' outstanding' one. If such be the precedent, then the entire structure of supervision/subordination, monitoring and evaluation will shatter. The personal remarks will have to be changed by the impersonal evaluation from remote area on the basis of certain letters, discussions, observations, reports and publications.
(g) Lastly we were concerned about the effect of section 4 of the Service Tribunals Act read with section 22 of the Civil Servants Act which provide that no appeal shall lie to a Tribunal against an order or decision of a departmental .Authority determining the fitness or otherwise of a person to be promoted to a higher post or grade and that no representation lies to the department on matters relating to the determination of fitness of a person to hold a particular post or to promote to a higher grade or post. This concern was based on the fact that the impugned order dated 1-8- 1995 had intimated the appellant that he was considered for promotion by the CSB-1 (the consideration for promotion being a vested right already stands justified). However, the Board recommended him for supersession which meant that the Board did not consider the appellant fit to hold the higher post in BPS-21 and, therefore, the appeal against the said impugned order was hit by the mischief of the said statutory provisions. If a civil servant fails to achieve a particular score as a result of quantification or blood count it would amount that the person was not found fit to be promoted in accordance with the formula of quantification prescribed for the promotion to such posts.
4 . During the various dates of hearing the said infirmities were pointed out and at a stage the appellant also made an application for the amendment of appeal by impleading certain additional respondents including the Establishment Division. When the application came up for hearing it was noticed that the desired amendment if allowed would change the entire complexion of the case and, therefore, the appellant withdrew the said application. Keeping in view the above observations we are of the opinion that there are certain inherent defects in the case. It was bad for non-joinder of Federation of Pakistan and the Establishment Division as well as the Auditor- General of Pakistan (by designation) as a party. The appeal is also bad for misjoinder of the respondents 1, 2 and 3 by name. Their presence before the Tribunal cannot, help the appellant to achieve the desired goal as mentioned in the prayer of the appeal. They were neither necessary nor appropriate party in this appeal particularly the respondents Nos. 2 and 3 had to be struck down from the panel of the respondents. Similarly the respondent No, 1 is to be presumed to have been substituted as the officer of the respondent No,1 as he was then holding and not in person by name.
5. However, beside the technical infirmities as stated in para. 4 above it cannot be ignored that the appellant had at his credit a long experience of more than thirty years. The chart of the comparative performance evaluation analysis has been supplied by the respondent No,1 with his comments relating to the period between 15-12-1965 to 31-12-1994. It appears that he got one outstanding report, six Very Good reports, almost twenty Good reports and only four Average reports. There appears to be not a single adverse entry against him during such a long span of time. Mostly he is Graded A-1 or A. There are only few grading as B. There is no grading below B. The quality and output has all along been excellent. No disciplinary case or even enquiry appears to have been placed on his record. Even the average reports show that in some of them he was still considered to be fit for promotion with even A and A-1 entries in certain columns. During the entire period from 1981 when he was working in BPS-20 he has been all along considered fit for promotion rather in 1994 he was graded as fit for accelerated promotion. Despite all this brilliant service record with no stigma anywhere the appellant is being stamped as superseded on two occasions and his own department regrets to take any action on his representation for promotion or for agitating supersession. It is here that one feels that "Good" and "Very Good" grading becomes adverse rather worse than adverse because the adverse entry can be challenged by way of representations and appeals. The adverse remarks can be expunged but "Good" and "Very Good" remarks have never been subject-matter of representations nor have they been expunged. What can be the purpose of performance evaluation on the one hand and quantification formula on the other when a civil servant who is graded as "Good" and "Very Good" and considered to be fit for promotion or fit for accelerated promotion when he cannot complete the blood count of quantification. Therefore, we have to hold that:-
(a) The impugned letter dated 1-8-1995 had certainly affected the terms and conditions of service and an appeal against the same was competent under section 4 of the Service Tribunals Act.
(b) The impugned order dated 1-8-1995 was in fact the only appellate order passed on series of representations of the appellant from time to time and, therefore, there was no need of any departmental appeal or representations against the same and it can be considered to be the appellate order which could be impugned in a service appeal.
(c) The evaluation can be treated as adverse if as a result of the quantification a civil servant fails to achieve the smooth sailing. Anything affecting the promotion prospects will be considered to be a penalty or adverse bottle-neck and can be challenged by way of service appeal.
6. Notwithstanding the technical defects and infirmities in the appeal we consider that there is no remedy available for the civil servant with such an excellent background who has been placed in such a position of having no recourse to any authority or forum. The Service Tribunal being the first and the last forum for the appreciation of facts cannot ignore the unforeseen results which are self-contradictory demonstrating that classical adversities can happen and a report graded as "Good" or "Very Good" can have the effect as worse than worst. Despite the legal infirmities we accept this appeal modify the impugned order dated 1-8-1995 and remand the case to the office of the respondent No,1 to reconsider the entire performance evaluation record and after -providing an opportunity to the appellant of being heard and to present the formula of quantification whereby he claims to have achieved more than basic threshold required for promotion to BPS-21.
The process of re-evaluation, personal hearing and re-assessment of quantification with the help of the appellant and through a Committee of experts if so considered desirable be completed within a period of three months and the case of the appellant with all the updated Dossiers and P.E.Rs, be placed before the forthcoming meeting of the CSB-I for consideration of the appellant to be promoted to BPS-21.
7. No order as to costs.
8. Parties be informed.