1999 PLP (C (PLC(CS))

MUHAMMAD RAZA KHAN (MEMBER).‑‑‑The appellant has been working in the Income Tax Department since 1971. Initially he worked as Income‑tax Officer and then he was promoted in 1976 to B‑I8 after qualifying departmental examination in December, 1982. Then he was promoted to B‑19 as Assistant Commissioner, Income Tax on acting charge basis. On 10‑7‑1984, 27 officers were promoted to B‑19 on regular basis and the appellant was ignored. In October, 1984, other batchmates of the appellant were promoted and the appellant was superseded by five officers junior to him who have been mentioned as private respondents Nos. 3 to

7. Later on, however, he was promoted on regular basis in October, 1985. He agitated for the ante‑elation of his promotion by various appeals and representations and finally a response was issued by the C.B.R. on 5‑3‑1992 rejecting the plea of the appellant for ante‑elation of his promotion and restoration of his seniority with his batchmates. It was for the first time conveyed in the said appellate order dated 5‑3‑1992 that the appellant had been superseded for promotion to B‑19 in 1984 when his juniors were promoted and thus he was intimated that he will reckon his seniority with effect from 28‑10‑1985 when he was regularly promoted to B‑

19. This order was challenged by an Appeal No. 24(K) of 1992 on 15‑4‑1992.

2. Vide a judgment dated 2‑5‑1993, this Tribunal dismissed the said appeal by holding that:‑‑ "The appellant was superseded and he filed Appeal No. 126(K) of 1984 which was dismissed on the point of jurisdiction under section 4(l)(b) of the Service Tribunals Act, 1973. The appellant challenged the decision of the Tribunal in the Supreme Court but failed. The order of the Tribunal attained finality. Therefore, his promotion from a retrospective date on the acting charge basis and other circumstances cannot be reopened. As such the appeal is dismissed." The appellant filed an appeal before the Supreme Court against the said judgment which was accepted on 24‑4‑1997 and the case was remanded to this Tribunal for deciding the appeal afresh on merits. Their Lordships had held in the said judgment that:‑‑ "We are inclined to hold that since the appellant's earlier appeal was dismissed on 4‑8‑1985 on the ground of want of jurisdiction though in the body of the judgment some observations on merits were made, but the same cannot constitute res judicata for the purpose of the above appeal which was filed by the appellant after having been promoted on regular basis in BS‑

19. The Tribunal should have decided the appellant's aforesaid appeal on merits instead of being influenced by the observations made by it earlier in the aforementioned appeal." Thus, in view of the verdict of the Supreme Court the earlier decision given in Appeal No. 126(x) of 1984 could not be termed as res judicata for fresh appeal in 1992. After remand, notices were issued to the parties and we have listened to the arguments in this case.

3. The case of the appellant is that he had got a fair record of service and was eligible for promotion in 1984 but he has been superseded without any reason. The view point of the respondent‑department is that the case of the appellant was considered by the D.P.C. in 1984 on two occasions but he was not recommended for promotion because of certain observations. The extract from the minutes of the meeting is reproduced hereinbelow:‑‑ "(a) Extract from minutes of C.S.B. held on 16‑5‑1984.‑‑‑The Board had not cleared this officer for promotion in its meeting held on 16‑5‑1984 in view of his unsatisfactory performance. Since then he had earned 2 part reports during the year 1983 which were examined by the Board. The first part report from 1‑1‑1983 to 31‑7‑1983 was Average wherein the Reporting Officer had remarked that Mr. Barik was suitable for Secretariat job and the report for the later part i.e. from 2‑8‑1983 to 31-12‑1983 was Good. The Board observed that these latest reports did not indicate any marked improvement in the officer's overall performance. Although his score in Overall Assessment (66 marks) and in Quality and Output of work (64 marks) met the requisite standard, the Departmental Representative, namely, Chairman, C.B.R., expressed, his reservations about this officer's reputation. The Board did not clear the officer for promotion." (b) Extract from minutes of C.S.B. held on 28‑8‑1984.‑‑‑His score in "Overall Assessment" (68 marks) and in "Quality and Output of Work" (63 marks) met the requisite standard. Since 1973 the officer had been graded as Good in 12 and Average in one report which pertained to the year 1979. The officer had earned average entries in Part II of his otherwise Good reports for the following years. Years No. of average entries. 1980 (Pt) 3 including Quality and output of work and Cooperation and tact." 1981 3 ‑do‑ 1982 (Pt) 3 ‑do‑ 1982 (Pt) 13 including Emotional stability and output of work. A perusal of the officer's reports showed that there had been a continuing deterioration in the performance of this officer. The departmental representative ascribed this trend to the prolonged illness of the officer's wife. The Board observed that this personal problem, although unfortunate, cannot absolve the officer from paying proper attention to his official work. In view of his unsatisfactory performance, the Board did not clear this officer for promotion. "

4. The minutes as reproduced hereinbefore demonstrate that the performance evaluation of the appellant was mostly good and was recorded as average on some occasions but it has been admitted by the Board that the "overall assessment" as well as in the "quality and output" the appellant had met the requisite standard. On both the occasions he had scored more than the minimum threshold required for promotion to B‑

19. The "average" grading has been considered by the Honourable Supreme Court, in several precedents, to be generally good and it has been consistently held that average report cannot be treated to be adverse. The appellant has nowhere been graded to be below average. There is neither any adverse report not even adverse observation in the picture. There appears no disciplinary case and no penalty. The quantification formula was conceived and enforced to provide a yardstick to the C.S.B. for the determination of fitness and eligibility of the officers considered for promotion. Although the quantification formula is, sometimes considered to be arbitrary and against the interest of the civil servant but it has a positive merit that it delimits the arbitrary exercise of discretion by the Board. If a person attains the basic threshold required for promotion he can neither be deferred nor superseded for promotion, and the recording of observation by the C.S.B. that the average grading in solitary columns of certain A.C.R. demonstrate "unsatisfactory performance" not only violates the clear provisions of the ESTACODE but also amounts to contempt of the verdict of the Hon'ble Supreme Court where it has been held that average grading cannot be considered to be adverse or unsatisfactory. The above extracts will also show that the career of a civil servant has been placed of stake merely on the "reservation about the officers reputation" by the departmental representative. If there is no adverse report during the entire length of service of the appellant against his reputation, the Board cannot be swayed by personal views of a solitary person representing the department at the Central Selection Board meeting.

5. Although the questions of determination' of fitness cannot be deliberated upon during the service appeal but in view of the judgment of the Hon'ble Supreme Court remanding this case and keeping in view the minutes of the C.S.B. in 1984 as reproduced hereinabove we have to observe that the findings of the Board not recommending the appellant for promotion on both the occasions was arbitrary, violative of the rules and, therefore, void.

6. Under the law the eligibility and fitness for promotion is examined at the time of grant of acting charge promotion. The appellant was promoted on acting charge basis in December, 1982 which means that he was fit for promotion. He was regularly promoted in October, 1985 and at that time he was also fit for promotion and if he can be considered to be not eligible in 1984, then the record relating to December, 1982 to May, 1984 has to play a crucial role. The respondents have not been able to prove any single instance adverse to the performance of the appellant to justify his supersession in these 17 months. Thus, we accept this appeal, set aside the impugned order and direct that the promotion of the appellant may be ante‑dated to 10‑7‑1984 when his other colleagues were promoted. He tray be deemed to have been promoted with effect from the said date with all consequential benefits. Keeping in view the earlier judgment in this case, referred to hereinabove, we make no order as to costs.

7. Parties be informed. H.B.T./245/Sr.F Appeal accepted.