' MUHAMMAD RAZA KHAN (MEMBER)---The appellant is serving in the Income Tax Department since 1973. In the year 1997 he was serving as a B-19 officer in the Income-tax Group when the meeting of Central Selection Board (CSB) was held on 22-5-1997 for promotion of officers to B.20. As a result of which the private respondents 4 to 12 were recommended to be promoted and finally the impugned notification, dated 18-8-1997 was issued and allegedly the junior officers were promoted considering the appellant to be superseded. After seeking departmental remedy by filing a departmental appeal, dated 30-8-1997 and waiting for the statutory period of ninety days the present appeal has been filed on 23-12-1997, mainly on the ground that the ACR for the year 1996 was not placed before the CSB despite the fact that the meeting was held in May, 1997 and the ACR was ready. Moreover, the ACRs for the years 1991 and 1994 were not placed before the CSB. It was also contended that due to the deficiency in the record the appellant should not have been superseded and he might have been deferred. The appellant has also stated that despite the fact that had requested about the completion of record beforehand but incomplete record was placed before the CSB.
2. The respondents have filed their written objections. We have listened to the arguments on behalf of parties and perused the record as well as the ACR dossiers and the quantification chart.
3. There is a considerable force in the arguments on behalf of the appellant that since the meeting of the CSB was to be held in 1997, therefore, the ACR for the year 1996 should have been placed for consideration of the CSB. The comments furnished by the department mentioned that since the papers for the meeting of the CSB were prepared in 1996, therefore, the ACR of 1996 was not included therein and it has been also stated that the other quantification of the appellant was so deficient that even the inclusion of ACR for the year 1996 would not have made any difference. We are of the view that this was not just and fair approach by the respondents. Under the promotion policy the record has to be made available to the CSB and particularly the latest ACR is given supreme importance while considering the case of promotion. The latest ACR has an additional value as to be discussed hereinafter. However, the department had not supplied the latest ACR and pre-judged the opinion of the CSB. The perusal of the ACR shows that part of ACR from 1-1-1996 to 27-9-1996 was graded as 'Very Good' and it was recorded in February, 1997. Hence it was available with the department prior to the date of the meeting. Similarly the part report for September to December, 1996 was also graded by the Reporting Officer as 'Very Good', however, it has been down-graded by the Countersigning as 'Good' and this report was also not placed by the department before the CSB and as discussed hereinafter it has caused material prejudice to the appellant.
4. The ACR for the year 1994 was partly deficient as the report for 1-1-1994 to 12-6-1994 was stated to be not available and the same has been placed on record on 29-7-1997. In the absence of such report the case of the appellant should not have been considered. Similarly the part of ACR for 1981 was not available and it is not available as yet, thereore, a note to this effect should have been recorded by the department while submitting the case to the CSB. The failure to produce the complete record by the respondent has resulted in the mistaken judgment by the CSB. It will be incorrect to say that even if the report of 1996 or that of 1994 were placed before the CSB, the quantification would still have been deficient and the promotion of the appellant was still not possible. This was the job of the CSB and not for the respondent. It is said that the quantification of the appellant was below the required score as the appellant had 66 marks on the overall assessm ent and in the quality and output the final score was 68. The major set back was the down grading of the ACRs of the appellant for the years 1990 as well as 1994. We have the facility of perusing the original file and it transpired that the ACR for the year 1991 was initiated by Mr. Muhammad Daud Khan, the Commissioner of Wealth Tax, Karachi on 24-5-1992 and expecting assessm ent regarding 'knowledge of Islam and attitude toward Islamic ideology' wherein the appellant was assessed as 'Very Good', the rest of the assessment was 'Good' with not a single entry of 'Average' or 'Below Average'. However, the Countersigning Officer had recorded that "the Reporting Officer has been too generous in his comments" and down grade the overall grading from 'Good' to 'Average' without indicating any slight modification in any of the columns. The relevant guidelines provide for the procedure of difference by Countersigning Officer that he has to record his opinion in Part-II to Part-IV of the report and sign in the relevant column in red ink after striking out the assessm ent by the Reporting Officer. The Countersigning Officer without any rhyme and reason recorded the said remarks and down graded without any reason no further indication was provided as to which of the column was over estimated. Thus, final degradation in ACR for the year 1991 was 'violative of the instructions in this behalf and hence it was of no legal effect. Similarly it is said that the ACR for the year 1994 was also down graded. The perusal of the record shows that the ACR for the year 1994 is in two parts, the one relating to 1-1-1994 to 12-6-1994 and the other for the rest of the period in the year. In the said ACR as well the Reporting Officer has assessed the appellant as 'Very Good' in 18 columns and 'Good' in 12 columns. However, the overall gradings were assessed to be 'Very Good'. The pen-picture and the assessment of performance was also reflective of very good assessm ent. However, the then Countersigning Officer had downgraded the 'Very Good' assessm ent into 'Good' without changing any of the column and without giving her personal views about the said change wherein the same Countersigning Officer had independently 'recorded an evaluation report of the appellant from 16-10-1993 to 3-2-1994 and the overall grading mentioned therein by the same officer on 20-10-1994 was 'Very Good'. Hence it can be said that the said conversion of assessment for 'Very Good' to 'Good' was unintentional and since it is supported by no reasoning, either in the column or in the pen-picture, therefore, believing the said assessm ent of 20-10-1994 by the same officer we hold that overall grading of the appellant for the year 1994 should be 'Very Good'.
5. The ACR for the year 1996 was recorded on 12-2-1997 where the appellant was assessed as 'Very Good' and this report has been approved by the Countersigning Officer as well. Hence if the said report was included in the working papers and placed before the CSB the result would have been definitely otherwise.
6. Thus by holding the ACR for the year 1991 as 'Good' and, that of 1994 as, 'Very Good' and the final assessm ent of 1996 as also 'Very Good', the quantification would have certainly changed and had it been left by the department to the discretion of the CSB, the Board would certainly have applied the mind as the aforesaid.
7. The promotion policy was enforced in 1985. However, the quantification formula was to be applied retrospectively, and therefore, it was provided therein that "separate grading of 'outstanding' has now been introduced but for past reports, a 'Very Good' grading will be considered 'outstanding' and carry 10 marks only if (i) all except one or two entries in Part-II to Part- IV of the current ACR form or Part-II in the previous format are 'Very Good' i,e, A-1 or (ii) accelerated promotion was recommended". The promotion policy enforced in 1985 had introduced the term 'outstanding' whereas in previous format there was no such term and very good assessment carried 10 marks and retrospective application of this policy appears to be violative of the established principle. It may also be mentioned that policy itself has notice the ill effect of quantification formula by acknowledging in paragraph recorded as Serial No,172-A read as follows:-- "Serial No,172-A. The concept of 'quantification' was introduced for processing promotion cases but its very success and wider use had given rise to some unintended consequences indicated below:- - ' Although an average ACR is satisfactory and should statistically describe a majority of individuals, it has assumed an adverse aura. A contributory factor has been the 4 marks assigned to it in quantification although this did not affect promotion to non-selection posts since the eligibility threshold was also kept to a score of 40 marks only. The respective thresholds were kept higher for selection posts as 'satisfactory performance' was not the most reliable indication for an officer's capacity to pull on equally well at the next higher level. 'These considerations do not remain valid, however, when quantification is extended to review/disciplinary cases and for posting abroad. In such cases suitability can be judged strictly on performance at the individual's current level and no adverse inference should be drawn from an average i,e,, satisfactory report."
' From the above it is abundantly proved that if the officer received average report with 5 marks, he can never attain the minimum threshold of 70 marks i,e, 70%. Average report has been considered by the Supreme Court to be generally 'Good' and this Tribunal has held in so many cases that 'average' report should not create hindrance in the promotion of civil servants. Whereas by applying the quantification formula not only that the directions of the Supreme Court is violated but the very language of the statute is also negated. The average grading is neither conveyed to the civil servant concerned nor it can be challenged by way of service appeal and therefore, the fate of the civil servant clearly falls within the arbitrary hand of their officers to assess them as average (by the Reporting Officer or by down grading better evaluation to that of average by the Countersigning Officer) and thus, the poor civil servant is doomed forever. Thus, the average grading becomes worst than adverse reporting because in the adverse remarks one has an opportunity to get it redressed through legal process whereas the average grading is unrectifiable.
However, keeping in view the discussion in the foregoing paragraphs we may hold that the average grading has not occurred (and even if it has occurred it stand negated during the service of the appellant after 1985 i,e, the years of introduction of promotion policy. However, the height of injustice is the retrospective application of the policy to the period prior to 1985. Average grading was never considered to be a penalty nor it was considered to be the hindrance in promotion till 1985 but the present appellant has secured 'Average' grading in 1976, 1977, 1980 and 1983 and he is condemned by quantifying the said grading by 5 marks. If this state of affairs is allowed to continue, the appellant will never be in a position to attain the required threshold and thus, he will be condemned for ever without any fault and without opportunity of any redressal. Thus, the retrospective application of policy is violative of the principle of natural justice as declared by the Supreme Court to be a part of every statute.
8. The appellant is an employee of Income Tax Department which is a most sensitive department attracting a lot of critical observations. However, the appellant is fortunate to be assessed 'Good' and 'Very Good' in all the 18 years of his service while assessing his general and moral integrity as well as the intellectual integrity. He had secured 72 and 75 score in the said column. In the column of quality and output he had been assessed at 68 score but keeping in view the above observation he successfully crossed the required threshold of 70 marks and by applying the above observation and reassessing the overall grading the appellant definitely succeeds in attaining the minimum threshold required for the purpose.
9. The result is that we accept this appeal, modify the order of his supersession into that of deferment and direct that his case may be placed before the next meeting of the CSB after quantifying his assessm ent as said hereinabove.
10. No order as to costs. Parties be informed.