ROSHAN ALI MANGI (MEMBER).---The relevant facts leading to this appeal are that when working as Private Secretary (B-16) in the Cabinet Division, the appellant was sent on deputation to serve as Private Secretary to the Chief Election Commissioner, Azad Jammu and Kashmir (AJ&K) with Headquarters at Islamabad. While the appellant was serving as P.S. (B-16) the posts of the Private Secretaries in the Ministries and Divisions of the Government of Pakistan were upgraded from B-16 to B-17 alongwith their incumbents with effect from 1-7-1983 vide Office Memorandum dated 18-3- 1986.
2. The appellant was repatriated to the Cabinet Division from the Office of Chief Election Commissioner, with effect from 15-7-1988. On his return, he, therefore, submitted an application with the request to allow him also the upgradation in Grade-17 with effect from 1-7-1983 as it was given to his other colleagues. His request was acceded to and he was given upgradation to B-17 with effect from 15-7-1988 instead of 1-7-1983 the date on which the other -Private Secretaries had been upgraded to B-17 under Office Memo. Dated 18-3-1986. On his written request he was given upgradation with effect from 1-7-1983 in Grade-17 vide Notification dated 25-5-1993.
3. In the meanwhile, Office Memo. Was issued on 18-3-1986 whereby the post of Private Secretaries was upgraded from B-17 to B-18 as .Per sub--para. (b), which reads as: "The incumbents of the post of Private Secretary (B-i7) will be eligible for the grant of B-18 after putting in 7 years satisfactory service in B-17."
Since the appellant had rendered 7 years' service in B-17, hence he became eligible for the grant of B-18 with effect from 1-7-1990. Accordingly he made several requests but no order in this respect was passed.
4. The appellant retired from service on 1-1-1994, after according to him, completing his entire service satisfactorily.
5. The appellant on 23-4-1995 made a formal representation to the competent Authority claiming that he was entitled to grant of B-18 with effect from 1-7-1990 when he had completed 7 years of service in B-17 in terms of O.M. Dated 18-3-1986 as amended. But his request was rejected on 9-8- 1995 on the ground that his A.C.Rs. Were not satisfactory, hence was not eligible-for the grant of B-
18. Aggrieved by the said order, the appellant filed Appeal No. 345(R) of 1995 before the Federal Service Tribunal which was dismissed by the Tribunal and order passed and communicated to the appellant on 1-11-1995.
6. The appellant, therefore, approached the Supreme Court by way of Civil Petition for Leave to Appeal No. 671 of 1995. The Honourable Supreme Court finding that the order rejecting the appellant's claim without referring his case for the grant of Selection Grade in B-18 to D.P.C.
Directed to issue notice to Establishment Division and Cabinet Division to explain the position.
7. On receipt of notice, the case of the appellant was referred to the D.P.C. By Cabinet Division, which recommended his Selection Grade. Ultimately it was approved by the Establishment Division and accordingly the appellant was granted Selection Grade (B-18) with effect from .7-1992 vide Notification dated 16-6-1996.
8. The appellant was not happy with the date of grant of B-18. His claim was to get it with effect from 1-7-1990. The Hon'ble Supreme Court, however, on 17-6-1996 after hearing arguments closed the matter on the basis of their order passed on 16-6-1996 by observing that it was open to the appellant to approach the competent forum on the fresh cause of action.
9. The appellant, therefore, filed a representation-dated 14-7-1996 to the competent Authority for the grant of Selection Grade with effect from 1-7-1990 instead of 1-7-1992, to which no response was made even after the expiry of 90 days. Hence this appeal.
10. It was pleaded that the appellant had completed 7 years service in B-17 on 1-7-1990, which fact was not denied by the respondents. Therefore, in term of Office Memo dated 18-3-1986, the appellant was entitled to be granted B-18 on completion of 7 years of satisfactory service. It was observed that the respondents were taking out of certain entries in his A.C.Rs. While he was serving with the Chief Election Commissioner, AJ&K. It was brought to the notice of the bar that in the reports from 1st January, 1984 to 1 st June, 1987, the Chief Election Commissioner appears to have been recorded that the appellant was not or not yet fit for promotion. But these reports were never communicated to the appellant. Refusal to grant the Selection Grade from due date i.e., 1-7-1990 was violative of the instructions 3.1 (vii) to "A Guide Performance Evaluation" which reads as: "A confidential report containing adverse remarks should not be taken into consideration until they have been communicated in writing to the officer concerned and decision taken on his representation if ,any."
It was observed that it is the admitted position that the appellant was not communicated the so- called adverse remarks recorded in his A.C.Rs. At any the., If the adverse remarks if any, had been communicated to him he would have represented against those remarks and would have improved himself if there was any shortcoming. Hence, adverse remarks now cannot be used against the appellant. It was emphasised that the appellant had at his credit satisfactory service.
He was never awarded any penalty nor he was informed of any adverse remarks. The fact that he remained in the service throughout shows that he was working satisfactory.
11. Even otherwise, the word "satisfactory" occurring in Office Memorandum, dated 18-3-1986, does not mean that the civil servant should not have earned the adverse remarks. The words "satisfactory service" is not used in the said office memo. In that sense. Even grant of pension also under C.S.R. 470 provides that full pension can be granted only if service of a person had been thoroughly satisfactory. The fact that the appellant earned full pension of retirement on 1-1-1994 and his service was certified to be thoroughly satisfactory shows that his service was throughout satisfactory. It was clarified that the so-called adverse remarks were recorded during the period the appellant was serving with the Chief Election Commissioner and covered the period from 1-1- 1984 to 1-6-1987. Thereafter, his reports were good i.e., with effect from 2-6-1987 to 15-7-1988. In any case it was observed on 1-7-1990 the appellant had at least good reports for more than 3-1/2 preceding years and was declared fit for promotion in the A.C.Rs. It was, therefore, argued if in those reports the appellant was declared fit for promotion it was not understandable as to why he should not be given Selection Grade B-18 with effect from 1-7-1990, as his preceding reports were also good. It was brought to the notice of the bar that threshold of the appellant was higher than 50 marks as required under the Promotion Policy. In these circumstances, it was pleaded that refusal to grant Selection Grade B-18 to the appellant from the date he became eligible, if not granted, would be illegal and violative of the relevant rules.
12. It was, therefore, prayed that he may be allowed Selection Grade B-18 with-effect from I-7-1990, the date on which he completed 7 years of satisfactory service and became eligible, instead of 1-7- 1992.
13. The objections had been filed on behalf of the respondents. It has been contended that the 7 years of satisfactory service is essential for the grant of Selection Grade to Private Secretaries B-17.
The appellant has misconceived the facts because he was not possessing the satisfactory service during the period from 1984 to 1987.
14. It has been brought to the notice of the Bench that earlier his case was considered by the Move- Over Committee for the grant of move-over. Although the appellant was eligible for the grant of move-over on 1-12-1989 but he was not granted move-over in B-18 as he did not possess 5 years of satisfactory service, which was essential for move-over. However, the grant of move-over on later date, i.e., 1-12-1992, made the appellant clear that he did not possess 5 years' satisfactory service.
The appellant did not represent against the grant of move-over, therefore, at this stage his plea for not conveying the adverse remarks, is unjustified and the-barred.
15. It has been submitted that since these adverse remarks related to the period he was on deputation with the Chief Election Commissioner, Azad Jammu and Kashmir, it was the Commissioner who had to communicate the adverse remarks to the appellant. It has further been submitted that on the direction of Honourable Supreme Court, his case regarding the grant of Selection Grade was placed before the Departmental Promotion Committee. The appellant required 7 years satisfactory service in B-17 for the grant of Selection Grade although he earned adverse remarks in the A.C.Rs. For the period 1984 to 1987. However, he earned good/very good A.C.Rs. In 1988 to 1992. His A.C.R. From the period 1-6-1987 to 31-12-1987 was also good. In spite of his three A.C.Rs. Which did not recommend promotion/grant of selection grade to the appellant, the Departmental Promotion Committee decided grant of selection grade to him with effect from 1-7- 1992.
16. As regards the appellant's stand that he got his pension on his satisfactory service, it has been contended that that might be applicable in the case of pension, but that cannot be applied for the purpose of promotion/grant of selection grade. The adverse remarks in the A.C.Rs. Of an official- bar promotion; move-over and grant of selection grade, whereas pensionary benefits were also given even the official has adverse remarks in his A.C.Rs. It has further been observed that pensionary benefits require only completion of the qualified service. The rules criteria for grant of selection grade to Private Secretaries have separately been notified by the Establishment Division vide C.M. Dated i8-3-1986. With these submissions, it has been prayed to dismiss the appeal with costs.
17. We have heard the parties at length and gone through the documents available on the file. We find that the appellant has been denied the grant of selection grade even after completing 7 years of satisfactory service as prescribed under the said rules. The main plea of the respondents was that the appellant earned adverse remarks during the period when he was with the Chief Election Commissioner, Azad Jammu and Kashmir and according to respondents, it was duty of the Election Commissioner to have communicated those remarks to the appellant This position was contested be the appellant emphasising that the respondents were required under Instruction 3.1
(vii) of "A Guide to Performance Evaluation" to have communicated in writing those remarks to the appellant and decision taken on the appellant's defence. In our opinion the stand of the appellant is correct. Any decision on uncommunicated adverse remarks will not be justified and would be against natural justice and fair-play, especially when it has been admitted by the respondents, vide their comments that the appellant's relevant A.C.Rs. Were received by them in 1988. As such they were required to communicate the same to the appellant and afforded him the opportunity of his defence. Since no such opportunity has been afforded to the appellant, hence those adverse remarks will not be justified to be considered for his grant of selection grade.
18. Although the respondents have held the view that the request of the appellant for selection grade was barred by proviso (b) of section 4 of the Service Tribunals Act, 1973 which says: "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 appointed to or hold a particular post or to be promoted to a higher grade;" '
19. Nevertheless the respondents have committed an illegal infirmity by not communicating the adverse remarks to the appellant and thereby denied him the opportunity to defend himself, cannot be overlooked especially when in this regard the Supreme Court has held the view in 1995 SCM R 650 (Walayat Ali Mir v. Pakistan International Airlines Corporation) "while exercising discretion, Authority should not at arbitrarily, unreasonable and in complete disregard of relevant rules and regulations. Exercise of discretion is circumscribed by principle of justice and fairness". It has further been held: "Dictum that no employee has vested right in promotion is although correct yet where rules, regulations and policy have been framed for regulating appointment and promotion; any breach or deviation for mala fide reasons or due to arbitrary at of Competent Authority, would entitle aggrieved person to challenge the same".
20. The upshot of the above discussion is that the appellant was not communicated relevant adverse remarks, thus he was not in a position to defend himself which is mandatory under the law. We, therefore, to meet the ends of justice and fair-play, accept the appeal and direct the respondents to consider his case for grant of Selection Grade B-18 in the light of observations as made above, with effect from 1-7-1990, the date on which he had completed 7 years of satisfactory service.
21. No order as to costs.
22. Parties be informed.