' ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---The appellant is presently working as soil Survey Officer (B-17). He reached the maximum of BPS-17 on 1-12-1988 and was due for move-over in BPS-18 with effect from 1-12-1989 but was not granted. He did not file any appeal before this Tribunal as according to the learned counsel for the appellant, there were some adverse entries in the A.C.Rs, of the appellant and on appeal subsequently those were expunged. He filed Appeal No, 224 (L) of 1995 before this Tribunal for grant of move-over to BPS-I8 and this Tribunal by judgment 'dated 26- 9-1995 by consent of the parties remanded the case to the Secretary, Ministry of Food, Agriculture and Livestock to reconsider the case of the appellant for grant of move-over from BPS-17 to BPS-18 in the light of the law laid down by the Supreme Court reported in 1994 SCM R 544. The case was referred to the Ministry and in reply the appellant was informed vide Office Memorandum dated 26th June, 1996 that move-over from BPS-17 to BPS-18 would be admissible to him after he obtains no report against a civil' servant and he gets two good reports without any adverse entry during the five years preceding the date of consideration of his case Therefore the appellant has again come in appeal for grant of move-over from BPS-17 to BPS-18 with effect from 1-12-1989.
2. We have heard Mian Mahmood Hussain the learned counsel for the appellant. It is argued that the appellant had average reports, with no adverse entry and the adverse remarks in earlier A.C.R.
Had been expunged, and in view of the decision of the Supreme Court, average reports are to be treated generally good and appellant is entitled to grant of move-over from BPS-17 to BPS-18 with effect from 1-12-1989. It is contended that the respondent department has declined the relief on the basis of some amendment made on 7th February. 1991 in the Finance Division O.M. No,l(82)-R-3/85 dated 1-1-1985, but this amendment cannot be applied retrospectively in the case of the appellant.
3. The departmental representative appearing On behalf of the Ministry of Food, Agriculture and Livestock submitted that as soon as the appellant earns two good reports, his case will be considered by the Move-over Committee for grant of move-over from BPS-17 to BPS-18. It is argued that for move-over from BPS-17 to BPS-18 in view of amendment dated 7-2-1991, two good reports are to be earned by the appellant.
4. The admitted position is that the appellant had earned 'average' reports and the adverse entries recorded in his A.C.Rs, were expunged. The effect of ' average' reports in the cases of move-over was considered by the Humble Supreme Court in the case reported in PLD 1992 SC 144 (Muhammad Anwar v. Secretary, Establishment Division), and it was held that if there is no adverse report against a civil servant and he gets 'average' reports, they would have to be treated as "generally good" for purpose of move-over. Because a report of average nature cannot be treated as adverse unless specifically so treated and then conveyed to the civil servant as an adverse report. It is also a settled law that appeal against 'average' report is not competent before the Tribunal unless it is communicated as adverse report. This view was also reiterated by the Humble Supreme Court in the case reported in 1994 SCM R 544. In view of the pronouncement of law laid down by the Supreme Court, we hold that the appellant is entitled to grant of move-over from BPS- 17 to BPS-18 with effect from 1-12-1989. However, the respondent department has refused the relief on the amendment made in Office Memorandum No, 1(82)-R-3/83, dated 1-1-'1986, vide O.M., dated 7th February, 1991, which reads as under: "For move-over from B-17 to B-18 and B-18 to B-19 at least two good reports without any adverse entry during the last five years inclusive of the year of move-over."
' According to the above quoted amendment, a civil servant for move-over from B-17 to B-18 should have earned at least two good reports without any adverse entry during the last five years including the year of move-over. This amendment is dated 7-2-1991 and has got a prospective effect and cannot operate retrospectively because according to the admitted facts, the appellant had reached the maximum of B-17 in December, 1988 and had become due for move-over in BPS- 18 with effect from 1-12-1989. Therefore, this amendment was not applicable in the case of the appellant and has been misconstrued by the department, especially when the Supreme Court had laid down the law on the point in the case reported in PLD 1992 SC 144, referred to above. We, therefore, hold that the appellant is entitled to move-over from PS-17 to BPS-18 with effect from 1- 12-1989 and allow the appeal in the above terms, with all consequential benefits. No order is made for costs.