' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---These two petitions against Abdul Nasim Khan and others are directed against the judgment dated 23-7-1995 passed by the N.-W.F.P. Service Tribunal, Peshawar, whereby appeal filed by Abdul Nasim Khan respondent No, 1 was accepted, the impugned seniority list was set aside and he was allowed to retain his inter se seniority in the lower post/grade.
2. The brief facts are that after the graduation in Civil Engineering, respondent No, 1 was inducted in 1965 as Assistant Engineer in the Government of N.-W.F.P. Industries Department. In the year 1967, he was selected again as Assistant Engineer in the Airport Development Authority (A.D.A.) where he served for seven years. In the year 1969, however, while serving in the Airport Development Authority and notwithstanding his selection by the erstwhile West Pakistan Public Service Cot-mission as Sub-Divisional Officer, for reasons best known to the Competent Authority, no letter of his appointment was issued till January, 1974. When he joined the P.W.D. Of the N.-W.F.P., it appears that his appointment was made on ad hoc basis. The Government of N.-W.F.P. By Notification dated 11- 12-1976 regularised the ad hoc appointment of Assistant Engineers vis-a-vis regular appointees..
The name of `respondent No, 1 was placed at Serial No, 5 at the top of those Assistant Engineers who were eligible for promotion. At that juncture, the qualifying service for promotion from BPS-17 to that of BPS-18 was five years. The then Secretary to Government of N.-W.F.P. In the P.W.D., however, increased it to six years. In the meantime, vide letter dated 26-9-1978, the following "adverse remarks" in his A.C.R. For the period from 31-3-.1974 to 11-8-1975 were communicated to him:-- "The officer did not impress me much."
' A panel of Assistant Engineers including respondent No, 1 when placed before the Provincial Selection Board for determination of their suitability for promotion to the rank of Executive Engineers, the Provincial Selection Board in its meeting held on 6-11-1976 did not consider respondent No, 1 fit for promotion on the ground that "his record was not good enough to warrant relaxation in qualifying period for promotion to BPS-18". Officers at Serial Nos.6, 14 and 15 listed in the Seniority List of 11-12-1976 were, however, promoted to the rank of XENs, despite falling short of requisite qualifying service. Respondent No, 1 feeling aggrieved filed representation against the impugned order of promotion which remained unresponded. Respondent No, 1 was, however, promoted to the post of XEN vide order dated 16-2-1980. In the tentative seniority list circulated on 30-4-1990 respondent No, 1 was placed junior to those who had been promoted earlier than him notwithstanding the fact that they were junior to him. In the final seniority list dated 31-7-1993 the seniority position of respondent No, 1 remained unchanged, therefore, he moved a representation to the Competent Authority which was rejected on 30-1-1994 on the ground that the Provincial Selection Board in its meeting held on 6-11-1976 had not considered him fit for promotion rejecting the earlier adverse remarks reproduced' above.
3. Ultimately. Respondent No, 1 filed an appeal before the Service Tribunal wherein, apart from assailing the seniority list, he challenged both the propriety and legality of the impugned A.C.R. On the ground, firstly, that the so-called 'adverse remarks' on which the relaxation in length of service for promotion was refused were no remarks much less than adverse remarks; secondly, that in any case, even if the impugned remarks were to be termed as adverse still they had no bearing on relaxation in length of qualifying service for promotion; thirdly, that these remarks were not in conformity with the rating as ' good' made in the columns meant for performance evaluation; fourthly, that seniority, assigned to respondent No, 1 in 1993 was not in accordance with Explanations I and HI appended to section 17(1) of the ' N.-W.F.P. Civil Servants (Appointment, Promotion and. Transfer) Rules, 1989 and, lastly, that the impugned adverse remarks were communicated' to respondent No, 1 more than three years later which could not operate adversely on his rights.
4. In their joint reply petitioners in CPSLA No, 286-P of 1995 contested the respondent's claim pleading limitation and maintainability of the appeal. On merits, it was reiterated that the Provincial Selection Board in their meeting held on 6-11-1976 had not considered respondent No, 1 to be fit for promotion on the ground that the "record was not good enough to warrant relaxation in qualifying length of service for promotion to Grade-18". It was also urged that respondent No, 1 had not objected to the seniority list notified on 23-12-1990. It was conceded that respondent No, 1 was graded as 'good' but pen-picture showed his performance in particular as 'inefficient'. Likewise, respondents Nos. 2 to 4 and 6 in C.P. No, 286-P/1995 in their joint written statement had strenuously contested the appeal pleading, inter alia, that besides being time-barred it was not maintainable under section 4 of the N.-W.F.P. Service Tribunals Act (I of 1974); that respondent No, 1 had neither cause of action nor locus standi; that respondent No, 1 was estopped to question the fixation of his seniority having failed to challenge the seniority list notified on 23-12-1990. On merits, it was urged that the adverse remarks were communicated to him after three years on 11-8-1975, nonetheless, respondent No, 4 ignored to have any step to get them rectified, therefore, the remarks had attained finality and further that the promotion not being a vested right the Competent Authority had exercised its jurisdiction correctly which could not be brought under challenge. Respondent No, 11 had also traversed the assertions raised in the grounds of memorandum of appeal and pleaded the bar of limitation and estoppel.
5. The Service Tribunal after perusal of the record concluded that the appeal was directed against the impugned decision/letter dated 30-1-1994 of the departmental authority and, therefore, the appeal was within time. After analysis of the impugned reply/order of the Competent Authority read in conjunction with the minutes of the Provincial Selection Board which had been quoted in para. 6 of the reply of the petitioners in C.P. No, 286-P/1995, the Service Tribunal reached the conclusion that respondent No, 1 had not been superseded and, therefore, the words "you were superseded" occurring in the concluding paragraph of the impugned order/letter were unlawfully added. It was next held that according to the evidence, the Departmental Representative (Arbab Waheed Alam, Section Officer), who was examined by the Service Tribunal, had conceded that there was no provision in the Rules for recruitment of Engineers or any other provision in the Rules regulating the grant or otherwise of the relaxation in the qualifying service for promotion to BPS-18.
The inference thus reached was that the aforesaid relaxation was purely discretionary and further that respondent No, 1 had not been superseded but had been refused the requisite relaxation. It was, therefore, held that under the provisions of the N.-W.F.P. Civil Servants (Appointment, Promotion and Transfer) Rules, 1989 respondent No, 1 being senior in the lower grade would maintain his inter se seniority with his juniors. Lastly, it had not sounded reasonable to the Service Tribunal that respondent No, 1 was as a whole graded as 'good' in the Performance Evaluation Report but in pen-picture he had not been able to impress the countersigning authority much". This glaring contradiction, according to the Service Tribunal, besides being devoid of substance even otherwise suffered from ambiguity if not uncertainty, in that, bare words "impress" and "much" employed in the remarks find no place in any rule or law but "its dictionary meaning in no case indicate anything bad or adverse". Resultantly, the Service Tribunal "accepted the appeal, set aside the impugned order and the seniority list and respondent No, 1 was allowed to retain his inter se seniority as in the lower post/grade".
6. Mr. Fateh Muhammad Khan, learned counsel for the petitioners-Government, contended that respondent No, 1 was debarred to claim promotion as of right after he was duly considered by the Provincial Selection Board and was not found suitable on the ground of his adverse remarks recorded by the countersigning authority which was a valid ground for superseding him. The learned counsel also reiterated his contention which had been raised before the Service Tribunal that appeal of respondent No, 1 was barred by time inasmuch as the seniority list was finalised in 1990 while the appeal was filed on 26-2-1994.
7. Mr. Abdul Wahid Khan, learned counsel for the petitioners in C.P.S.L.A. No, 34-P/1996 had adopted the arguments of the learned counsel for the petitioners-Government in C.P.S.L.A. No, 286-P/1995.
8. From the perusal of the record it transpires that tentative seniority list was circulated on 30-4- 1990 which was finalised on 31-7-1993. It is conceded in para. 8 of the reply submitted by the petitioners in C.P.S.L.A. No, 286-P/1995 that respondent No, 1 had submitted a representation against the final Seniority List dated 31-7-1993 which was considered and rejected. The date of rejection has, however, not been furnished in the reply. In this factual background, the Service Tribunal was justified to hold that appeal filed against the impugned decision/letter of the competent Authority dated 30-1-1994 was not barred by time.
9. The impugned order is primarily pedestalled on the following "adverse remarks" recorded by the Countersigning Authority against respondent No, 1:-- "The Officer did not impress me much."
The Service Tribunal had taken note of the admission of the official of the petitioners-Government with reference to para. E of the grounds in the reply that respondent No, 1 was graded as "good" but the abovenoted remarks fell under the pen-picture. This obvious contradiction in the gradation and pen-picture is enough to rob the pen-picture of its veracity. Again this pen-picture has been rightly held to be unwarranted under the rules governing the recording of pen-picture. Besides, it is too ambiguous to operate adversely qua the career of respondent No, 1 particularly when it was considered in the context of granting relaxation in the prescribed length of service for promotion and had obviously no nexus with the performance of the duties by respondent No,
1. Again the so- called adverse remarks manifestly relate to his "disposition" and not to his entitlement to relaxation which formed the basis for the Provincial Selection Board to find him unfit for promotion. We find no merit in these petitions for leave to appeal which are, accordingly, dismissed.