1997 SCMR 1109 (PLP)

4. Case of the petitioner is that after the dismissal of WAPDA's & appeal he approached the respondent for the grant of move‑over but no action was taken. He then sent a legal notice through his counsel in response to which he was informed vide letter dated 12‑10‑1994 that his case for the grant of the move‑over to BPS‑20 was considered by the relevant committee but it could not be approved as he did not fulfil the prescribed criteria. Precise grievance of the petitioner is that he has been denied move‑over because of the A.C.Rs. which according to the decision of this Court could not have been made the basis for denying the move‑over. It is alleged that the order of this Court has thus been defied by the respondent.

5. Comments have been submitted on behalf of the respondent stating that after the judgment was passed by this Court on 7‑10‑1992, case of the petitioner for move‑over was examined by the scrutiny committee which made the following observations:‑ "Due with effect from 1‑12‑1984. The officer was compulsorily retired in 1987, was reinstated in 1992 as a result of the decision of Supreme Court and again retired in 1992 on superannuation. As per decision of the committee to treat the missing A.C.Rs. for such compulsory retirement periods as 'Average', this case does not fulfil the criteria with effect from 1‑12‑1984 till the date of his superannuation due to majority of Average A.C.Rs. Not recommended." The details of the petitioner's A.C.Rs. for the years 1980 to 1987 and for the year 1992 are given in the comments which are reproduced hereunder for facility of reference:‑‑ 1980 Average 1981 Average 1982 Good 1983 Average 1984 Average 1985 Not assessed as the officer did not have any assignment during the period. 1986 Average 1987 Compulsorily retired at 55 years of age. 1992 Reinstated and retired on superannuation.

6. It is stated in the comments that the A.C.Rs. for the years 1980, 1983 and 1984 could not be countersigned by the next higher officer/authority of Mechanised Construction of Pakistan Limited as it had since been liquidated and the counter-signing authority could not be traced. It is, however, explained in the comments that the said A.C.Rs. were not utilized to deprive the petitioner from move‑over. According to the comments, the criteria prescribed for move over from B.P.S‑19 to BPS‑20, "calls for at least three 'Good' A.C.Rs. during the last five years inclusive of the year of move‑over" Stand of the respondent appears to be that since the petitioner did not have three 'Good' A.C.Rs. to his credit-during the relevant five years, he was not entitled to move‑over.

7. We have heard the learned counsel for the petitioner as also the learned counsel appearing for WAPDA. It appears that the petitioner was entitled to move‑over in March 1987. It is an admitted position that no A.C.R. was recorded for the year 1987 as he was compulsorily retired in that year. As regards the preceding years, A.C.R. of the petitioner was not recorded in 1985 as he was not given any assignment during that period. A.C.Rs. for the years 1983 and 1984 rated the petitioner as 'Average' but it is an admitted position that these A.C.Rs. were not countersigned by the Countersigning Authority. These two A.C.Rs. are, therefore, twice excluded, from consideration when considering the petitioner's case for move‑over and this position has been accepted in the comments. In the circumstances, the relevant A.C.Rs. of the preceding five years which the authorities concerned ought to have taken into consideration were of the years 1979 to 1982 and 1986. The Chief Engineer present in Court with record has stated that the petitioner had earned 'Good' Reports for the year 1979 and 1982 but for the remaining three years viz 1980, 1981 and 1986, he was rated 'Average'. He was thus not entitled to the grant of move‑over as he did not have three 'Good' reports. Petitioner, however, has pointed out on seeing his record that in the year 1986, two officers had rated his performance as 'Good' and it was only the third officer at the top of the hierarchy who described him as 'Average'. The Chief Engineer when questioned has admitted that the initiating officer who was a Chief Engineer and the next higher officer namely the General Manager both evaluated the petitioner's performance as 'Good' but the Member (Water) rated him as 'Average'. We have asked the officer whether the Member (Water) gave any reasons for disagreeing with the opinion of the Chief Engineer and the General Manager. His reply is in the negative. In the circumstances, we are inclined to take the f view that opinion given and the evaluation made by the immediate bosses of the petitioner who had better opportunities to adjudge his work, conduct and performance should prevail with the result that the petitioner's A.C.R. for the year 1986 should be treated as 'Good'. In this view of the matter, we find that out of the five relevant/available A.C.Rs. of the petitioner, he had three 'Good' "reports. He was, therefore, entitled to grant of move‑over according to the criteria prescribed by WAPDA. It appears that the petitioner's case for move- over has not been examined by the concerned authorities in correct perspective but there has been no deliberate or contumacious disregard of this Court's judgment dated 7‑10‑1992 either by the respondent or by any other officer. We are, therefore, not inclined to proceed any further in the matter of contempt. This petition is accordingly dismissed but it is directed that the case of the petitioner for move‑over should be examined afresh in the light of what we have said above and he be allowed move‑over to the next higher grade with effect from March, 1987. Needless to observe that since the petitioner has already retired from service, the necessary exercise should be completed expeditiously, preferably within one month which the officer present in Court undertakes to do. N.H.Q./S‑1080/S Petition dismissed.