' ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---Appellant Mr. Muhammad Zubair Kidwai is presently working in BPS-21. The facts in brief are that his case for promotion from B-20 to B-21 was placed before the CSB-I in its meeting held on 27-2-1988 and he was not cleared for promotion and was recommended for supersession. His case was again considered by the C.S.B. In the meeting held on 11-10-1990 and was cleared for promotion to B-21 and was accordingly promoted as Additional Secretary (B-21) vide Notification, dated 8-1-1991. The appellant made a representation on 9-4-1991 against his supersession in 1988 on the grounds of wrong quantification and consequential relegation in seniority position, which was accepted and the Prime Minister by order, dated 194- 1993 converted his supersession into deferment. Consequently, his seniority in the Gradation List, dated 15-2-1993 and 1-7-1994 alongwith his batch-mates was restored and his name appeared in these lists at S. Nos. 38 and 25 respectively. He was also allowed the benefit of fixation of pay. One of his colleagues, namely Mr. Ferozuddin Ahmed, who is respondent No,13 herein, made a representation against the appellant, challenging the order whereby his supersession was converted to deferment and the resultant benefits, but could not succeed and he brought his grievance before this Tribunal by filing Appeal No,47(K)/94 but the same was dismissed by the Tribunal vide judgment, dated 10-7-1994. The judgment of the Tribunal in Appeal No,47(K)/94 was not challenged in the Supreme Court. Meanwhile, another colleague of the appellant namely Mr. Moizuddin Ahmed made a representation dated 3-3-1994 for restoration of his seniority against certain junior officers including the appellant which was accepted vide Memorandum, dated 8-11- 1994 issued by the Establishment Division whereby the decision of converting supersession into deferment was annulled, and the appellant was relegated in seniority in B-21. Being aggrieved, the appellant made a representation, dated November, 1994 to the President of Pakistan, which remained unresponded. He then filed this appeal before this Tribunal under section 4 of the Service Tribunals Act, 1973.
2. Mr. Abdul Karim Kundi, the learned counsel appearing for the appellant argued that recalling of earlier order of converting supersession into deferment, by the same authority, is illegal as it had already taken effect and a vested right had accrued to the appellant. He has argued that under the law of locus poenitentiae order cannot be recalled. He submitted that in Appeal No,47(K)/94 this point had been adjudicated upon by the Tribunal, and it could not again be reopened. It was also argued that there being no power of review, the order could not be reviewed.
3. Objections have been filed by the Establishment Division and the departmental representative, Mr. Zakaullah Jan, Section Officer, submitted that when Mr. Moizuddin filed departmental appeal, the true facts were brought to the notice of the Prime Minister, and considering relevant features the deferment was changed into supersession and decision was taken by the competent Authority to recall the earlier order, is within powers of authority to rectify mistake, and it was not a review suo motu, but on regular appeal under the Rules made by Mr. Moizuddin Ahmed. It is argued that law of locus poenitentiae is not attracted in cases any void order is set aside.
4. Mr. Shah Abdur Rashid, learned Advocate appearing on behalf of respondent No,3, Mr. Rifat Askari, submitted that it is not a case of review, but injustice was done to Mr. Moizuddin Ahmed, as he was not heard while deciding the case of the appellant, therefore, the same authority could modify the order and he referred to Rule 21 of the General Clauses Act; PLD 1980 SC 279 and PLD 1991 SC 1118.
5. Mr. F.K. Butt, Advocate appeared for respondent Mr. Moizuddin Ahmed had made application for short adjournment on the ground that he had been engaged only on 31-5-1995 and Vakalatnama shall be filed on next hearing, but his request was declined as there were no good grounds or explanation particularly when the other parties were ready for arguments and we heard them at length. However, in the interest of justice another chance was given to Mr. F.K. Butt, Advocate and his client Mr. Moizuddin Ahmed and the case was refixed for hearing on 27-7-1995, but notice sent to Mr. F.K. Butt, Advocate was returned back unserved and even Vakalatnama was not filed; while Mr. Moizuddin Ahmad did not appear despite due service of notice. Accordingly after hearing Mr. Abdul Karim Kundi, the learned counsel for the appellant and Mr. Zakaullah Jan, S.O., Establishment Division, the judgment was reserved.
6. The admitted facts are that the appellant was superseded by the CSB in its meeting held on 27- 2-1988, alongwith about 52 officers, for having the below the minimum threshold, Overall Assessm ent (70) and Quality and Output of Work, (74), as against threshold of 75. Accordingly the Establishment Secretary floated a summary for the Prime Minister on 5-4-1988 and the Prime Minister vide minutes, 'dated 29-4-1988 approved the recommendation of the Establishment Secretary with regard to supersession of the appellant. The appellant made an application to the Prime Minister, which was sent to the Secretary, Establishment Division vide P.M. Sectt. Under order, dated 17-7-1991 for their views. The matter was examined in the Establishment Division and a detailed reply was sent to the P.M. Secretariat, vide U.O. Dated 5-9-1991, the relevant paragraphs of the U.O. Note (paras 3 to 6) are reproduced below:- "3. The facts of the case are that Mr. M. Zubair Kidwai was approved for promotion as Joint Secretary in 1980 subject to his return to Pakistan. On return to Pakistan his promotion as Joint Secretary was notified in June, 1987. On promotion to BPS-20, Mr. Kidwai earned one report for the period from 28-6-1987 to 31-12-1987 which was 'Very Good'. Soon thereafter, a meeting of C.S.B-I took place on 27-2-1988 in which the officers of Secretariat Group were considered for promotion as Additional Secretary. Mr. M. Zubair Kidwai was superseded because his score for Over Assessm ent (70) and Quality and Output of Work (74) remained below the minimum threshold of 75.
4. According to the formula laid down in the promotion policy for working out the quantified score, 'where only two reports or less are available on an officer against posts in a particular basic pay scale, these C.Rs, will be added to the C.Rs, earned in a lower post for calculating the average marks at that level to avoid any undue bias attacking to the reports in question". To illustrate this aspect, it may be stated that an officer may have earned only one or two reports in a particular pay scale. If these reports are 'Very Good' and quantified independently then the total score of an officer would be much higher than by application of normal formula. Similarly if these reports are `average' and quantified independently, the total score of an office would be reduced considerably.
The principle of quantifying one or two reports available on an officer in a particular pay scale with reports in lower pay scale has been introduced to ensure that independent weightage to two or less reports in a particular pay scale may not unnecessarily distort his score.
5. It may be added that even if the request of Mr. M. Zubair Kidwai is accepted and his score for Quality and Output of Work, i,e, 74, still remains below the minimum threshold. Incidentally no officer whose score was below the minimum threshold of 75 whether for 'Overall Assessment' or for 'Quality and Output of Work' was promoted in 1988.
6. In view of the above, the score of Mr. M. Zubair Kidwai was worked out in accordance with the relevant formula as laid down in the Promotion Policy by adding his 'only' A.C.R. Earned in BPS-20 to his reports earned in BPS-19. Thus, the officer was not victimised by harsh application of quantified formula."
' The Joint Secretary, P.M. Secretariat, vide U.O. Dated 18-10-1992 sought clarifications from the Establishment Division on the following paragraphs: "2. It has been observed that the A.C.Rs, in respect of the officer for the period from January to April, 1986 and from January to April, 1987 were awaited at the time of placing the case before the Central Selection Board in 1988. In accordance with the Promotion Policy the case therefore should have been deferred till the missing reports became available.
3. Quantification was worked out according to the formula laid down for promotion from BPS-19 to BPS-20 while the officer was being considered for promotion to BPS-21."
' The Joint Secretary, P.M. Secretariat, vide U.O. Dated 17-12-1992 again sought clarification with regard to formula used for calculating the A.C.R. Score of the officer for promotion to B-21. The Establishment Division vide its U.O. Dated 23-12-1992, sent the following detailed reply, reading as under:- "Subject: SENIORITY OF MR. MUHAMMAD ZUBAIR KIDWAI ' Reference Prime Minister's Secretariat U.O. No, 1479/SOHA/E/91, dated 17th December, 1992 the above subject.
2. It is correct that while considering Mr. Muhammad Zubair Kidwai for promotion to BPS-21, the quantification formula for promotion to post in BPS-20 was applied. It was done in the light of para. 5 of the addendum annexed to Promotion Policy issued on 30th April, 1984. A copy of the relevant portion of the Promotion Policy was supplied to Prime Minister's Secretariat vide Establishment Division's U.O. Of even number dated 10-12-1992.
3. The provision cited above provides that 'where only two reports or less are available on an officer against posts in particular basic pay scale, these C.Rs, will be added to the C.Rs, earned in the lower post for calculating the average marks at that level and the principle laid down in para. 4 will apply to the weightage to avoid any undue bias attaching to the reports in question.
4. It will be appreciated that by adding two or less A.C.Rs, earned by an Officer in a particular pay scale to the Confidential Reports earned in lower pay scale, the number of steps for quantification purposes would also be reduced by one step. As such the quantifiction formula for promotion to lower post will have to be applied.
5. In the light of position discussed above, the quantification score of Mr. Kidwai was worked out as is done in case of promotion to BPS-20. Mr. Kidwai was not discriminated while applying this formula. It is applied uniformally in all similar cases.
(Sd.)
(Syed Ziaul Hassan), Deputy Secretary.
' Prime Minister's Secretariat (Malik Yesrab, Joint Secretary), Islamabad.
' Esttt. Div. U.O. No, 2/7/90-CP-7, dated 23rd December, 1992."
' Finally, the Additional Secretary (HA), P.M. Secretariat, recorded the following note dated 19-1-1993: ".... The Prime Minister has been pleased to convert supersession of Mr. Muhammad Zubair Kidwai into deferment with regard to the decision of the Central Selection Board-I, dated 27th February, 1988, regarding his promotion from BPS-20 to 21."
' The appellant was already promoted to BPS-21 vide Notification, dated 8th January, 1991. One of the colleagues namely Mr. Moizuddin Ahmed made a representation for restoration of his seniority over certain junior officers and the Establishment Division considered the matter and prepared a summary for the Prime Minister wherein full facts were highlighted vide its U.O. Dated 17-8-1994. It would be worthwhile to reproduce the relevant paragraphs 4 to 11, for the purpose of clarity:
4. Factual position in regard to the seniority in BS-20 A.C.Rs, quantified score in 1988, recommendations of the C.S.B-I in 1988, 1990 and the latest seniority position in BS-21 of Mr. Moizuddin Ahmed and the five officers, is as under:-- S. No.& NameSeniority in BS-20 as on 1-11-1987A.C.R.s ScoreRecommen- dationof CSB-I in 1988Recommen-dation of CSB-I in 1990Seniority in BS-20 as on 1-7-1994
1. Mr. Muizuddin Ahmed72 72 S P 40
2. Dr. Muhammad Arif78 78 D P 20
3. Ch. Mueen Afzal80 87 D P 22
4. Mr. Shakeel Ahmed 81 75 D S 60
5. Dr. Muhammad Amjad85 76 D P 24 6.Mr. Muhammad Zubair Kidwai87 70 S P 25 S D PSupersession Deferment Promotion
5. The rule position is that an officer who is deferred by the C.S.B. For one or the other reason, does not lose his seniority when he is subsequently promoted. Upon promotion, he regains his inter se seniority with his batch-mates and ranks senior to those promoted officers who were junior to him in the lower rank. When an officer is, however, superseded, he loses his seniority vis-a-vis his batch-mates and is accorded a new seniority according to his seniority position amongst officers being promoted with him. Viewed in this perspective, it will be seen that Mr. Moizuddin Ahmed and Mr. Muhammad Zubair Kidwai who were superseded in 1988, were to lose their seniority vis-a-vis their colleagues. But, Messrs Dr. Muhammad Arif, Ch. Mueen Afzal and Dr. Muhammad Amjad who were deferred in 1988 but approved for promotion in 1990, regained their seniority vis-a-vis their juniors when promoted in 1990. Mr. Shakeel Ahmed though deferred in 1988, was superseded in 1990. He was finally approved in 1991, and has thus been ranked alongside others promoted with him. He continues to be junior to Mr. Muizuddin Ahmed.
(6) It will be seen from the Table in para. 3 ante that Mr. Muizuddin Ahmed and Mr. Muhammad Zubair Kidwai who were recommended for supersession by C.S.B-I in 1988, had A.C.Rs, quantification of 72 and 70, respectively. Being less than the prescribed threshold of 75, C.S.B-Is., recommendations for supersession of both officers were approved by the Prime Minister. Logically as well as per the dictates of the rules, both Mr. Muizuddin Ahmed and Mr. Muhammad Zubair Kidwai should have lost their seniority vis-a-vis their aforesaid colleagues in BS-20. However, an anomaly crept in due to an appeal of Mr. Muhammad Zubair Kidwai as outlined in para. 7 below.
(7) As stated above, Mr. Muhammad Zubair Kidwai had an A.C.R. Quantification 70 in 1988, and was thus, superseded. He, however, represented to the Prime Minister in 1991, against the supersession on the ground that his quantification had been worked out by harsh application of the computation formula which distorted his score. The Establishment Division who were asked for comments, explained (Annexure IV) that the quantification of Mr. Muhammad Zubair Kidwai had been computed fairly and in accordance with the prescribed format. In fact the procedure has been applied in all earlier cases and continues to be applied in subsequent cases uniformally. It was further submitted to the Prime Minister's Secretariat that even if Mr. Muhammad Zubair Kidwai's plea is accepted, his score for the quality and Output would work out to be 74 which was still below the minimum threshold. Considering that the quantification had been worked out according to the prescribed norms and there was no harshness, the Establishment Division opposed any change in the C.S.B-I's. Recommendations. However, the then Prime Minister converted (Annexure V) the supersession into deferment, and therefore, Mr. Kidwai got his seniority with effect from 1988. He is thus ranked as No,25 in the BS-21 seniority list as compared to that of Mr. Muizuddin Ahmed at No,40.
(8) Mr. Muizuddin Ahmed is not contesting the decision of the C.S.B-I in superseding him in 1988. All that he is requesting for is that those officers who were junior to him in BS-20 and were not promoted like him in 1988 particularly when their A.C.Rs, score was also less than the threshold, may not be declared senior to him. As detailed in paras. 4-5 above, the case of Messrs Dr. Muhammad Arif, Ch. Mueen Afzal and Dr. Muhammad Amjad is that they were deferred in 1988 because of either being abroad or had recently returned from abroad and were required to earn one A.C.R. To become eligible for consideration. On being reconsidered in 1990, they were approved and thus regained their seniority. Mr. Shakeel Ahmed, as explanined in para. 5 above, was superseded in 1990 and is thus junior to Mr. Muizuddin Ahmed. The only remaining officer who should be junior to Mr. Muizuddin Ahmed is Mr. Muhammad Zubair Kidwai because he was superseded on account of his A.C.Rs, score being less than the threshold. In fact, his score was even less than that of Mr. Muizuddin Ahmed. The acceptance of Mr. Muizuddin Ahmed's request would therefore, imply that once Mr. Muhammad Zubair Kidwai is declared junior to him, his grievance would be met.
(9) No other officer with a score of less than 75 was approved for promotion to BS-21 in 1988. By deviating from the prescribed criteria in converting supersession into deferment in the case of Mr. Kidwai has also caused a grievance to many officers including Mr. Muizuddin Ahmed. All those who had a score of 70 and above but were not selected, would have ample grounds to seek similar dispensation.
(10) To prevent distortion of the prescribed criteria and to meet the ends of justice in this case, it is recommended that the earlier decision of conversion of supersession of Mr. Muhammad Zubair Kidwai into deferment may be annulled. This will meet Mr. Muizuddin Ahmed's grievance that no one with lesser score got promoted and declared senior to him.
(11) Approval of the Prime Minister to the proposal contained in para. 10 is solicited."
' The case was submitted to Principal Secretary to the Prime Minister, who recorded the following note:--
(12) The Prime Minister has been pleased to approve the proposal at para. 10 of the summary."
(Sd.)
' Ahmed Sadik, ' Principal Secretary to the Prime Minister ' 10-10-1994."
' Consequently, pursuant to the approval of the Prime Minister, the Office Memorandum, dated 8th November, 1994 was issued by the Establishment Division whereby the deferment of the appellant was annulled by the Prime Minister, and the representation made by Mr. Moizuddin Ahmed was accepted, with the result that the appellant was relegated to his original position in the seniority position. The relevant paragraphs 4, 5 and 6 are reproduced below:--
(4) As regard Mr. Muhammad Zubair Kidwai who was also superseded alongwith Mr. Muizuddin Ahmed by the C.S.D.B-1 in its meeting held on 27-2-1988 due to A.C.Rs, quantified score lesser than the prescribed minimum threshold but approved by the Board in its meeting of 11-10-1990, regained his seniority due to acceptance of conversion of his supersession in 1988 into deferment. The matter was brought to the notice of the competent Authority highlighting the circumstances in which the 1988 supersession of Mr. Muhammad Zubair Kidwai was converted into deferment and resultantly he got seniority over his substantive senior that is, Mr. Muizuddin Ahmed. The competent Authority has now been pleased to annul the earlier decision of conversion of Mr. Muhammad Zubair Kidwai's 1988 supersession into deferment. Therefore, the seniority at S. No,25 in the gradation list of BS-21 officers of the Secretariat Group as on 1-7-1994 assigned to him on the basis of his above-stated conversion, will now be placed at S. No,43-A and will thus maintain his inter se seniority with the batch of the officers superseded by the C.S.B-I on 27-2-1988 and subsequently promoted by the C.S.B-I in its meeting held on 11-10-1990.
(5) The position of seniority of Mr. Muizuddin Ahmed will remain at S. No,40 in the gradation list ibid as he was given seniority in the gradation list of BS-21 officers of the Secretariat Group on the basis of his supersession by the C.S.B-I meeting held on 27-2-1988 and promotion by the Board in its meeting held on 11-10-1990. His two juniors in BS-20, that is, Mr. Shakeel Ahmed and Mr. Muhammad Zubair Kidwai who were superseded continue to be junior to him in BS-21.
(6) Mr. Muizuddin Ahmed's representation is thus accepted to the extent indicated above?
' From the abovementioned facts, it is clear that the Central Selection Board in its meeting held on 27-2-1988 had not cleared the appellant for promotion to B-21 as he had not achieved the requisite threshold of 75 and the Board recommended his supersession, along with other 52 officers, who had even higher score than the appellant and his supersession had been approved by the Prime Minister on 27-4-1988. In case the contention of the appellant with regard to wrong quantification is accepted, then the proper course was to place his case again before the Central Selection Board, along with full facts, for reconsideration of the case on the basis of quantified formula; or at least this course should have been suggested to the Prime Minister. There was no proper summary for the Prime Minister but the correspondence was being exchanged between the Prime Minister's Secretariat and the Establishment Division at the level of Deputy Secretary and Joint Secretary and finally the Additional Secretary (HA), Prime Minister's Secretariat vide his note dated 19-1-1993, reproduced above, directed that the Prime Minister had approved the conversion of supersession into deferment of the appellant. We are of the view that competent authority was not apprised of full facts about the threshold and quantification of the appellant, before passing order of conversion of supersession into deferment, because if the contentions were to be accepted, even then he could not achieve the requisite quantified score which was mandatory and could not be relaxed as there were host of officers who had achieved higher score but were superseded but the case of the appellant was singled out for considering his deferment, for which neither proper procedure was adopted nor full facts were placed before the Prime Minister. In the second round, it was on the representation of Mr. Moizuddin Ahmed that all facts and papers were submitted to the Prime Minister through a summary prepared by the Establishment Secretary, and the deferment was converted into supersession, and this decision was conveyed by the Principal Secretary to the Prime Minister. Therefore, the contention of the appellant that once an order had been passed, in his favour could not be recalled is devoid of merit. Had there been any merit in the case of the appellant then he was right that proper order passed by the competent Authority could not be recalled, but, as discussed above, the earlier order passed by the Prime Minister was without sound reasoning, and that order was recalled not suo motu but on the representation of an aggrieved person, namely Mr. Moizuddin Ahmed The appellant has also referred to a decision of this Tribunal in Appeal No,47(K) of 1994 filed by Mr. Firozuddin Ahmed, in which the appellant was private respondent, and that appeal was dismissed and the position of the appellant was upheld, which cannot be now changed. We are sorry, we do not subscribe to this view. We have gone through the R&P of Appeal No,47(K) of 1994 and we find that Mr. Moizuddin Ahmed was not a party in that appeal, and therefore, the decision in the aforesaid appeal is not binding on him and that decision cannot affect the efficacy or judgment in the instant case. As regards the power of review, it is a settled law that power of review could only be exercised, if it is specifically conferred and on this we rely on PLD 1970 SC 1 and PLD 1981 SC 94. In the instant case, the impugned notification was not the result of suo motu review but it was on the representation made by Mr. Moizuddin Ahmed which was examined in detail and impugned order was passed by the competent Authority which is just and does not call for interference.
7. As regards the contention of the learned counsel for the appellant that once the order had been passed by the Prime Minister and acted upon, that order could not be recalled by the Prime Minister under the principle of locus poenitentiae, there is force in this argument, but in the instant case, the Prime Minister on the recommendations of the Central Selection Board ordered supersession of the appellant and it remained in field till the appellant was again promoted. If we accept the argument of the appellant, then the competent Authority was not competent to have converted his supersession into deferment, as his supersession remained in field for three years, acted upon and continued till his promotion and he did not challenge it by way of regular appeal either departmentally or before the Tribunal. If we come to the conclusion on the basis of the arguments that the order of supersession converted into deferment is legal, then the first order whereby he was superseded and reached to finality, could also be said to be illegal and then the appellant has no case to challenge the order whereby his supersession was converted into deferment, but looking to the circumstances of the case and taking care of the interest of the civil servants, we have gone in detail. From the record, it appears that first supersession of the appellant was approved by the Prime Minister made on the recommendations of the Central Selection Board after due process of rules and in a regular manner. The situation changed. He did not challenge that order before the Tribunal and remained silent till he was promoted. After being promoted to B- 21, the appellant took up his matter with the Prime Minister and correspondence exchanged between the joint Secretary, Prime Minister's Secretariat and the Establishment Division, and that Division throughout opposed the matter of conversion of supersession into deferment of the appellant on the basis of quantification which was less than the requisite threshold, and many of his seniors having higher score, were also superseded. However, afterwards on the representations made by the aggrieved civil servants, the matter was again probed and the Establishment Secretary floated a summary for the Prime Minister, giving full facts of the case, and the Prime Minister in his discretion, again converted deferment into supersession of the appellant and brought him to original position of supersession on the basis of the recommendations of the Central Selection Board. As regards the service appeal filed by Mr. Ferozuddin Ahmed (Appeal No,47(K) of 1994), wherein the appellant was a private respondent, although the said appeal was dismissed by the Tribunal and it was altogether a different matter of seniority which the appellant had regained on conversion of his supersession into deferment, but here the point for determination by the Tribunal is whether the conversion of supersession into deferment is legal or not, and the judgment of the Tribunal in the said appeal is not attracted in this case. He now wants seniority on the basis of conversion of supersession into deferment which was not a point in issue of earlier appeal, and in this appeal the appellant has impugned the order, dated 8-11-1994.
8. For the foregoing reasons, the appeal has no merits and is accordingly dismissed with costs.