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Petitioner: MUHAHMAD NAQI KHAN VS Respondent: SECRETARY, ESTABLISHMENT DIVISION AND OTHERS
Court Name: Federal Service Tribunal Judge(s): Sir Abdul Rashid, Muhammad Irshad Khan Title: MUHAHMAD NAQI KHAN vs SECRETARY, ESTABLISHMENT DIVISION AND OTHERS Case No.: Appeal No, 99 (R) of 1982 Date of Judgment:1983-11-16 Reported As: 1984 PLC (C. S.) 215 Result: Appeal accepted
JUDGMENT
JUDGMENT ' ABDUL. RASHID (MEMBER).--The appellant was appointed as Assistant after qualifying the C.P.S.C. Examination. He was confirmed as such with effect from 5th April, 1952. He was appointed as Section Officer on ad hoc basis with effect from 19th July, 1972. He was appointed Section Officer on regular basis with effect from 27th January, 1975 as stated by the Establishment Division and continues as such. 2. The appellant has been continuously agitating his claim for promotion as Section Officer from 1st October, 1959 the date from which the Section Officers Scheme was actually implemented. According to the appellant, his juniors had been promoted Section Officers whereas he had been ignored by the Central Selection Board during 1959-60 due to incorrect service particulars and incomplete A.C.Rs, In addition, his case, which was sent for review (by the C.S.B.) in 1964 to the Establishment Division, had yielded no results. 3. His appeal, dated 17th March, 1982 addressed to the President of Pakistan was withheld vide Establishment Division letter, dated 1st June, 1982 whereafter the appellant filed his present appeal before the Federal Service Tribunal on 13th June, 1982 impleading 259 respondent officials, against whom he claimed seniority as Section Officer w. e. f. 1st October, 1959. 4. We heard the learned counsel from both sides. We also, carefully, perused the relevant record made available to us. 5. We shall, first deal with the C. R. Dossier of the appellant with reference to his non-selection by the C.S.B. In 1959 and then in 1960. 6. His C.R. Ending 31st December, 1948 as B Grade Clerk, grades him as satisfactory worker but as to his further promotion it is non-committal by saying that it is too early to form any opinion.
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Intermediate Science has been inserted as academic qualification by Cabinet Division Section Officer, Bashir Ahmad, on 31st October, 1963. 7. His C.R. For the year 1949 recorded on 3rd April, 1950 is reasonably good. The only entry at the end of the A.C.R. Pro forma says : "He is a good worker though sometime he quarrels with his colleagues." The Assistant Secretary who countersigned the above report has recorded : "His defect should be pointed out to him." The shortcoming was pointed out to the appellant on 29th June, 1950 as is borne out by record. 8. Another inaccuracy in the said C. R. Was that of appellant's academic qualification. It was recorded as Matric whereas the appellant was actually Intermediate Science. This was corrected subsequently on 21st October, 1963 in the hand of the Section Officer (Bashir Ahmed). This initial inaccuracy and its correction was highlighted during the course of the arguments before us as tampering, having possibly done injury to the cause of the appellant before the C.S.B. We do not subscribe to this viewpoint because all subsequent A.C.Rs, of the appellant did carry the, appropriate qualifications of B.A. (Hons.), M.A. If anything, the C.S.B. May have been favourably impressed by knowing that he had acquired higher academic qualifications of B.A. (Hons.) and then M.A. Between 1950-53. We do not, also, find any substance in the allegation of tampering which appears baseless. Had we seen any subsequent error or deficiency in the academic qualifications of the appellant, then alone, a motive could have been imputed but we have found no such evidence. 9. The C.R. For the period from 1st January, 1950 to 18th September, 1950, initiated on 26th March, 1951 is a good one with laudable remarks like : "He is a well-behaved young man and has a good character." During the course of the arguements, it was highlighted that there should have been another report from 19th September, 1950 to 31st December, 1950 and since it is not there, the C.R. Record for the year 1950 cannot be considered complete. In our view, however, it would have been desirable if the report for about three months' period i,e, 19th September to 31st December, 1950 had been there, but if it is not there, it does not mean that the C.R. Record for the year 1950 can be regarded as incomplete when C.R. For better part of the year is in the dossier. However, from the Cabinet Division 4-page letter No, Admn. 10/56/65, dated 18th December, 1964 addressed to the Establishment Division (M. Z. Kiani), we discover that the appellant who had left his previous appointment on 18th September, 1950 joined the Cabinet Division on 15th December, 1950. Obviously, therefore, no one could have written his C.R. For the period 19th September to 31st December, 1950. 10. There is no C.R. For the year 1951. Much ado for nothing was made before us of the absence of this C.R. To us it did not really matter. The appellant was till then a clerk and as clerk, there were three C.Rs, already available in his dossier for the years 1948 to 1950. The absence of 1951 C.R. In our opinion, could not have caused any injury to the appellant. 11. The C.R. For the year 1952 initiated on 26th January, 1953 is satisfactory. 12. The C.R. For the year 1953 was initiated by the Superintendent on 8th December, 1953 and countersigned by the Assistant Secretary on 31st January, 1954. The report is of an average nature. The Assistant Secretary, as countersigning officer, has recorded : "Needs close supervision. With experience he will make a good Assistant." A Deputy Secretary has also further countersigned this report and has said : "I agree with the Assistant Secretary." 13. The C.R. For the year 1954 has been initiated by the Assistant Secretary. It bears no date of initiation. This report contains entries like : "Possesses the energy but applies it sparingly" and "He needs some more grounding but there has been a definite improvement in his work as compared to last year. "As to his promotion, the report said "Not yet."
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14. The above remarks were communicated to the appellant on 16th August, 1955. He contested them on the ground that he had been serving under Mr. S. H. Ashraf, Superintendent, throughout 1954 who had proceeded on long leave ex-Pakistan till his return in June, 1955, and that it was he who was to write appellant's report. We also find Mr. Ashraf's remarks on the file as : "Mr. Naqi does not deserve a better report than what has been given by Assistant Secretary." 15. The above C.R. Was hotly debated before us on two counts. First, that the Assistant Secretary, who had initiated the C.R. Had no authority to do so and that it was the Superintendent who should have done so as the immediate superior of the appellant and since this had not been the case, the report was not valid and should not, at all, have formed part of the C.R dossier, for the simple reason that the Superintendent Mr. Ashraf, being a subordinate, had no option but to agree (with the Assistant Secretary) when he said Mr. Naqi did not deserve a better report. Second, that the report initiated by the Assistant Secretary had been countersigned by the Superintendent when he endorsed the remarks of the Assistant Secretary by saying that Mr. Naqi did not deserve a better report. We do not think that this tantamounted to countersignature. The Superintendent merely agreed with what the Assistant Secretary had written. It is obvious that the Assistant Secretary initiated the report because the Superintendent concerned had gone abroad in December, 1954 on long leave. He should have, actually initiated the report before proceeding on leave. Viewed objectively, we feel that even if the Superintendent had initiated the report, the remarks of the Assistant Secretary, as the countersigning officer, would have still been the same. Since the remarks of the countersigning officer are considered weighter than that of the initiating officer, there would have been, in the final analysis, no material difference to the appellant in respect of C.R. For the said year. We say this without prejudice to the C.R. Form S-121C wherein it is clearly laid down that "the report will be initiated by the Superintendent of the Branch in which the Assistant/Clerk is employed.", The countersignature was to be done by the Branch Officer (Assistant Secretary) as the Instructions say. 16. The C.R. For the year 1955, initiated by the Superintendent S. H. Ashraf, contains adverse entries like : "Prompt but not accurate", "Does not exert". "Behavior not commendable", "He is in the habit of submitting half-baked cases to the Superintendent". For promotion, it was "not yet". This report was never communicated to the appellant. The Assistant Secretary (Z. A. K. Baqai) has countersigned the report without making any observation that the adverse remarks be communicated. To us, this report appears to be based on bad faith on the part of the Superintendent as well as the Assistant Secretary and seems to be a carry-over of previous year's rancour against the appellant who had challenged his report of the said year. We are, by no means suggesting that the Initiating Counter- A signing Officers do not have a right to record adverse entries. They certainly have. However, where the adverse remarks are not communicated within 30 days it becomes a case of dishonest intent, pure and simple, as it seems to be in the appeal before us. 17. The C.R. For the year 1956 was written by a Superintendent other than S. H. Ashraf. The report is of an average type. The countersigning Assistant Secretary (Mr. Z. A. K. Baqai) has remarked : "At present betrays signs of immaturity. If his energies and capabilities can be properly harnessed, he would become a good Assistant." He was considered fit for promotion "After some more experience". The remarks of the Assistant Secretary were not communicated to the appellant. This smacks of mala fide on the part of the said Assistant Secretary. 18. The C.R. For the year 1957 is of an average nature. Appellant has been recommended for promotion in his own turn. The general remarks appended by the initiating officer (Superintendent) say : "He requires a bit of tactful handling otherwise a good Assistant." The report has been countersigned by Deputy Secretary (Azizul Hassan) without any remarks on 13th February, 1958. 19. The report for the year 1958, initiated by the Superintendent concerned on 28th February, 1959 is of an average standard. According to the appellant, this report was not available with his C.R.
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Dossier when he was considered by the C.S.B. For the first time for promotion in 1959. According to the Establishment Division, however, this report was available with the C.S.B. We do not know whether or not this was so, despite perusal of a large number of files, and especially because the 1959 Central Selection Board did not keep any minutes as is revealed by the record. However, we must place on record para. 3 of the Cabinet Division letter No, Admn. 10/56/64, dated 2nd July, 1964 addressed to the Establishment Division to this effect : "When his case was placed before the Selection Board in 1959, his dossier included the report for 1958 and when the Selection Board considered him in 1960. The dossier included the report for 1959." 20. The appellant's C.R. For the year 1959, initiated on 20th February, 1960 by a Section Officer, is of a high order. According to the appellant this report, too, was not before the C.S.B. In 1960. We have dealt with this objection of the appellant in the foregoing paragraph and no more need be said. The appellant was, however, not approved for the second time in the year 1960, when certain non- selectees, who had represented against their failure in 1959, were reconsidered and this included the appellant. 21. The C.Rs, for the years 1960 to 1965 are certainly of an above average type. From 1st October, 1965 to 27th February, 1969 the appellant was posted abroad in the CENTO Secretariat as Information Assistant and no reports were initiated on him in accordance with the Establishment Division O.M., dated 14th September, 1966. 22. The C.Rs, for the years 1969 to 18th July, 1972 are of an excellent standard which, palpably, brought about the promotion of the appellant to the post of Section Officer, with effect from 19th July, 1972. 23. It will be observed that the C.Rs, initiated on the appellant were of a mixed type upto the year 31st December, 1959. We have, however no doubt that the appellant has been wronged as far as the report years 1953, 1954, 1955 and 1956 are concerned. The adverse remarks for the years 1953 to 1956 were never communicated to the appellant and could very well be described as a malicious act on the part of the Assistant Secretary (Mr. Z. A. K. Baqai). If the adverse remarks had been communicated, which was a requirement, then at least, the appellant would have bad a chance to contest them and even if the said remarks had not been expunged, the appellant would have had the satisfaction of having been heard. 24. We do not, to this day, see any safeguards for the aggrieved officials who may have been treated in the manner in which the appellant has been. Some patchy instructions do exist here and there like Sl. No, 155 (p. 125 Estacode 1979) laying down procedure for referring cases to the Selection Board Serial Nos, 156 and 158 (p-126) also refer. On the basis of the cases, which have come in appeal before us, we can easily say that these instructions are not being followed and hence their futility. We shall deal with this important aspect of an officer's career before we shall conclude the judgment and for this we shall review the "performance evaluation" issued by the 0 & M Division in 1981, insofar as it is relevant for our purpose. For the time being, however, all that we would like to say is that in order to retain and save the C.R. System as a useful, open and dynamic system, rather than a hidden whip for harming the sub ordinates, as is the case in the appeal before us, the non-communication of adverse remarks within 30 days of countersignature, must be dealt with a misconduct both against the initiating as well as the countersigning officers. Not more than 30 days' period be allowed between the two said officials to, finalise the report by following the time-table for completion and rendition of C.Rs, as laid down by the Establishment Division, which is very well-known. Within the next 30 days, though preferably earlier, the adverse remarks must be communicated to the official concerned. Where an official challenges the adverse remarks within 15 days of their receipt, but his case is not decided; as to retention or expunction of the adverse remarks within 90 days of pre-1 ferment of his appeal, he will have a
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right of redressal from the Tribunal within the next 30 days. In other words, the entire process, from beginning to end, must be completed within a period of 135 days and no mare. This would be in keeping with the desire of all of us to administer speedy justice. Needless to say that in view of the dicta laid down in 1981 SCM R 392, it is now well-settled that the Service Tribunal has vast jurisdiction in service matters and it is within its competence to entertain appeals against adverse remarks in A.C.Rs, 25. It is evident from record that there were a large number of representations from those who were not selected as Section Officers in 1959. Appellant's representation, dated 20th November, 1959 was also forwarded to the Establishment Division on 26th November, 1959 vide endorsement No, P.F. 36 Admn. 1 of the Cabinet Division. 26. The record made available to us by the Establishment Division contains a list of Assistants numbering 1675. It was, apparently, complied for selection of the Section Officers. In this list, the appellant appears at serial 128. His grading for appointment as Section Officer has been shown as B-2. His academic qualifications have been correctly shown as B.A. (Hons.), M.A., which totally negates his claim that his academic qualifications were not reflected correctly before the C.S.B. Wd, also. Have on record Establishment Division summary for the President, dated 30th September, 1959. Para. 4 only of the said summary would suffice : "4. Out of 386 Superintendents, 336 have been selected by the Central Selection Board (246 categorised A and 90 categorised B-1 in Annex I below). Out of 1690 Assistants, 130 (categorised A in Annex 11 below) have also been selected." ('not available on record). The President approved the summary on 30th September, 1959 the very day it was sent to him. 27. It becomes clear that no Assistant below category A was selected in 1959 and hence the appellant's non-selection for reasons of his B-2 Category. 28. A meeting of the C.S.B. Was held on 26th May, 1960. Item 1 says : "Establshment Division Review of the cases of officials who were considered for appointment as Section Officers, but not selected in the initial recruitment." 29. The Selection Board approved 58 names. Again, the appellant was not approved, presumably, due to his B-2 category. 30. It appears pertinent at this stage to refer to the Establishment Division O.M. Dated 19th June, 1964. The said O.M. Which was circulated to all Divisions and desired that cases of such superintendents/Assistants who were allegedly not selected in 1959 due to incomplete character rolls etc. Be forwarded immediately. It was, in this connection, urged before us, vehemently, that the Cabinet Division did not do so in respect of the appellant and that he was made to suffer again. We are unable to agree because Wore the said 0,M. Was issued by the Establishment Division the case of the appellant was already a subject of correspondence between the Cabinet and the Establishment Divisions. In this connection we reproduce below relevant paras. Of the Cabinet Division O.M. Admn. 10/56/64, dated 2nd July, 1964 : "3. ............. When his case was placed before the Selection Board in 1959, his dossier included the report for 1958 and when the Selection Board considered him in 1960, the dossier included the report for 1959. In both the cases, the latest possible reports were in the dossier just as was the position in all other cases. 4. 5. In view of the position explained above there is no case for reconsideration on the basis of the representations made so far by Mr. Naqi Khan. 6. The representations of Mr. Naqi Khan dated the 17th December, 1963 and the 27th May, 1964 are returned herewith. His C.R. Dossier is also enclosed which may be returned to the Cabinet Division when done with."
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31. From the above quotation, it is clear that the Cabinet Division believed that the appellant did not suffer at the hands of C.S.B. For want of complete and uptodate C.R. Dossier. In para. 2 (b) of their above-quoted O.M., the Cabinet Division have referred to the absence of 1951 C.R. Which we have already dealt with in one of the foregoing paragraphs. 32. Undeterred, the appellant kept up his spate of representations. A serious view was taken of two of his representations direct to the Establishment Secretary. The record also shows that the appellant addressed a representation direct to the Prime Minister's Representative on Administration which was, in turn, sent back to the Cabinet Division for disposal. Vide Cabinet Division 0.M., dated 17th December, 1965 the appellant (who had represented to the Establishment Secretary) was informed that his case will be considered for promotion as Section Officer in accordance with C.S.S. (Class I) Rules, 1965. However, he continued his representations till he became Section Officer and, thereafter, till the filing of his present appeal before us to claim his seniority as Section Officer retrospectively with effect from 1st October, 1959. 33. We, now, summarize the foregoing analysis as to appellant's claim of alleged incomplete C.R. Dossier as well as tampering with his academic qualification and the effect of these two factors on his non-selection as Section Officer both in 1959 and 1960. 34. There is no substance in appellant's arguments that three months' C.R. For September, December, 1950 is missing. We have disposed of this point at para. 9 above. The only missing C.R. For 1951 pertained to the period when the appellant was a clerk. The absence of this C.R. In our opinion, was not material as stated at para. 10 above. The C.R. For the year 1954 has been dealt with, at length, at paras. 13 to 15. 35. The appellant has not been able to substantiate his allegation of non-presence, before C.S.B. Of 1958 C.R. In 1959 and that of 1959 in 1960. In the face of overwhelming evidence on record from the Cabinet Division that his C.R. Dossier was complete in all respects (except C.R. Of 1951) we have serious mental reservations as to appellant's allegations in this Context. 36. As regards appellant's claim or allegation that his academic qualifications were not correctly shown or were tampered with, it is totally baseless. 37. We have no doubt that the appellant has suffered due to uncommunicated adverse remarks in his C.Rs, as Assistant for the years 1953 to 1956 period. Obviously, therefore, it was these reports which caused the relegation of appellant to B-2 Category and his non-selection both in 1959 and 1960. In 1959 it was only "A" Category Assistants who were selected as Section Officer but in May, 1960 certain B-1 category Assistants were also selected. If his reports had been unbiased, the appellant had an equal chance of selection as Section Officer with other 58 in 1960, particularly, because he possessed high academic qualifications which were rare among the Assistants. If the adverse remarks in the said reports had not been expunged after communication and due process of law, we would have had no hesitation in dismissing his present appeal. 38. We cannot help observing that the Deputy Secretary (Saudur Rahman) who further countersigned the report, did not care to direct that the remark in appellant's C.R. (for the year 1953) "Needs close supervision" be communicated. We find this remark underlined in red pencil. May be, it was so underlined by someone who was busy putting the Assistants into various categories from A, B-1, 8-2 to C. Similarly, other adverse remarks have been seen by the Joint Secretary, Cabinet Division (A. A. Hamid) and while countersigning the reports for the years 1954 to 1956, he has issued no instructions for communication of the adverse remarks which ought to have been done. 39. The learned counsel for the appellant, during the course of his arguments before us, relied on some of our relevant judgments. W. Shall not advert to them all. However, two of the judgments passed by this Tribunal, apply particularly in the instant case. One is Appeal No, 79 (R) of 1982 Mrs. Mussarrat Burkie v. Secretary Ministry of Information and others decided on 11th November, 1982.1
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The other is Appeal No, 137 (R) of 1981 Ramzan Muhammad Chaudhry v. C.B.R. And others . In both these cases, the appellants suffered grievous harm due to delayed writing of C.Rs, non- communication of adverse remarks. We, as the Service Tribunal, do not relish the unhappy task of doing autopsies, giving reports of findings and then writing obituaries. All that remains thereafter is to bury the corpse and we shall be reluctant to perform this function. 40. We have no doubt that the appellant has been condemned unheard with reference to adverse remarks recorded in his A.C.Rs, for the years 1953 to 1956, constituting better part of his service as Assistant, which should have been communicated to him, but were not. As a consequence thereof, he has suffered grievously. In the interest of justice, therefore, we order that the appellant shall be given seniority as a Section Officer with effect from the date, the 58 officials were appointed Section Officers as a result of reconsideration on 26th May, 1960. This order is without conferment of financial benefits. We also order that the adverse remarks in his C.Rs, for the years 1953 to 1969 shall not be taken into consideration for his furture promotions. 41. A copy of this judgment shall be placed in the C.R. Dossier of the appellant. 42. Of the 259 respondent officials, none has filed any written statement and none was represented before us. They are, therefore, proceeded against ex parte. 43. An A.C.R. Being the most important document of an official's career, is a sacred trust with the Establishment Division, in particular, and with other Ministries/Divisions Departments in general. An official will contribute to the well-being of an administration in direct proportion to his E own well- being and just treatment that he receives from his superiors. The A.C.Rs, cannot be allowed to…
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