ABDUL RASHID LODHI Versus CHAIRMAN, CENTRAL BOARD OF REVENUE, ISLAMABAD
MUHAMMAD AYUB KHAN (MEMBER).‑‑‑ The appellant initially inducted into Government service in November, 1962 in the Income tax Department as Steno typist who was later on appointed as Inspector, Income‑tax, (B‑11) in August, 1968, and subsequently promoted and appointed as Assistant Income‑tax Officer (B‑16) in February, 1981, and the last promotion he got as Assistant Commissioner of Income‑tax (B‑17) was in February, 1992.
2. As per service career the appellant was eligible for promotion as Deputy Commissioner of Income‑tax (B‑18) and as such his name, inter alia, was recommended and forwarded to the Departmental Promotion Committee for consideration and accordingly he was approved for the grant of promotion to B‑18 by the competent Authority. However, as luck would have it, his name got missed from the list of the officers who were promoted to B‑18. Feeling aggrieved the appellant preferred a departmental appeal vide Annexure‑B to the Competent Authority but having not been responded within the stipulated period the appellant,, perforce, filed a service appeal under section 4 of the Service Tribunals Act, 1973, in this Tribunal on 26‑2‑1998 which is well within time. It is alleged that his name was omitted without any legal objection and good ground.
3. It is further stated in the appeal that his performance throughout the last five years as Assistant Commissioner of Income‑tax was fairly good and he never received any adverse entry or remarks. In this respect it is considered advisable to make a reference to section 9 of the Civil Servants Act, 1973, relating to promotion which reads:‑‑
"9. Promotion. ‑‑(1) A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a higher post for the time being reserved under the rules for departmental promotion in the service or cadre to which he belongs.
(2) A post referred to in subsection (1) may either be a selection post or a non‑selection post to which promotions shall be made as may be prescribed‑‑
(a) in the case of a selection post, on the basis of selection on merit and
(b) in the case of a non‑selection post, on the basis of seniority‑cum fitness. "
A bare perusal of this section reveals that the appellant being a promoted officer was to be considered "on the basis of seniority‑cum‑fintess" and as such it was stated on his behalf that the appellant should have been considered and promoted vis‑a‑vis his juniors but having not done so the impugned order, according to the appellant, was void and not sustainable legally.
4. We have heard the learned counsel for the parties for and against the contentions raised in the appeal besides perusing the record.
5. A glance at the objections raised by respondents Nos. l to 3 vis‑a‑vis the appeal indicates that he was considered but deferred. The reply of he respondents to para.3 of the appeal is reproduced below for convenience sake and ready reference:‑‑
"Para. 3. The name of the appellant was considered for promotion to BS‑18 by the D.P.C. in its meeting held on 6‑10‑1997 and observed as under:‑‑
He was deferred due to administrative reasons, which still prevail. F His A.C.R. for the year 1996 (part) is adverse. His deferment is recommended.'
The Competent Authority also approved the appellant's deferment vide Establishment Division's O.M. No.21/1/97‑CP‑4 (Pt), dated 23‑10‑1997 (Annexure 1). In the A.C.R. for the period 28‑9 1996 to 31‑12‑1996 the countersigning officer did not find the appellant as . . . 'fit for promotion'."
Objections raised by the respondents necessitate scrutiny of the A.C.R. of the appellant for the period under consideration. A copy of the A.C.R. for the period 28‑9‑1996 to 31‑12‑1996 available on the file is 1/4th of the entire year and this hurdled, it appears, promotion of the appellant to BPS‑18.
6. A careful perusal of this A.C.R. depicts the appellant in Grade‑A as per Part‑11, Part‑III and Part‑IV by the Reporting Officer who recorded the following remarks in Part‑V. The same are reproduced as under:‑‑
(a) Pen‑Picture :
"He is a hardworking officer and works to his capacity."
(b) Counselling :
(c) Assessment of performance:
"His overall performance during the period under report has been good."
Assessment as per Part‑VI :
(a) Overall Grading
By Reporting By Countersigning
Officer Officer
"Good" "Average"
(b) Fitness for promotion
"Fit for promotion "Not yet fit for in his turn." promotion."
7. Reverting to para.5(b) of the appeal regarding contention of the appellant that during the last five years he performed his duties fairly good and never received anything of the nature of adverse remarks or entry which contention stands duly confirmed by the respondents due to their acquiescence which amounts to their acceptance of the grievance agitated by the appellant. "Al-Khamoshi neem Raza " The respondents should have come forward with any adverse remarks available on the record. Now in the event of their failure the unrebutable presumption is that there was no adverse material in the record against the appellant.
8. It appears that the case of the appellant got prejudiced/discriminated due to issuance of Letter No.4/2/97‑D.3, dated 22nd May, 1997, wherein it was directed:
......that the competent Authority has been pleased to order that the promotion orders of three officers, as named below, to the post of Deputy Commissioner (Income Tax) (BS‑18) may be withheld until the final decision of the competent Authority regarding reported dishonest/corrupt officers:‑‑
1. Mr. Muhammad Siddique Ch.
2. Mr. Abdul Rashid Lodhi.
3. Mr. Muhammad Malook."
This letter was addressed by a Section Officer of the Cabinet Secretariat to the Central Board of Revenue, Islamabad.
9. We are dealing with disposal of a promotion case based on the A.C.R. of the officer and a small portion of the A.C.R. (1/4th) cannot be construed a representative of the larger portion i.e. nine months for the reason that it is not a case of narcotics where a sample is considered representative of the whole lot. In the instant case the whole lot i.e. A.C.R. for nine months has already been declared as O.K. and that is also not a hurdle in the way of the appellant except the 1/4th portion of his A.C.R. The entire assessment arrived at by the Reporting Officer depicts the appellant a good officer falling within Grade‑A but, as luck would have it, the Countersigning Officer dubbed him "unfit for promotion" but without recording any reason as required under 'instructions' rules 2:12 and 2:13 of "A Guide to Performance Evaluation". It was a question of service career of the officer but the Countersigning Officer, it appears, took it lightly. In view of the peculiar facts the smaller portion merged into the larger one and not vice versa.
10. There is another important factor according to which the officer is likely to retire on attaining the age of superannuation with effect from 1‑1‑1999. In other words he is at the fag‑end of his service and let he shall remember the Department in retrospection with love and affection. Officers /Government servants deserve sympathetic approach at the verge of retirement provided they are not declared/proved corrupt which is not the case of the appellant.
11. There are a large number of decisions of the superior Courts wherein the civil servants were granted promotion from the date when their juniors were so obliged and promoted and in an identical situation reliance is placed on 1990 SCMR 1692 according to which the Federal Government feeling aggrieved from the judgment of the Federal Service Tribunal went in appeal to the Honourable Supreme Court of Pakistan and it ruled at para.7 of the judgment which is reproduced below for ready reference and convenience sake:‑‑‑
"7.We find that on the findings of the Tribunal the respondent's case was handled perversely and mala fide in a manner to deprive him of NPS‑19 though his junior was allowed. On this finding of fact we would rather allow the principle of next below rule to be applied to the case of the appellant and grant him the entitlement of N. P. S. 19 pay as from 7th April, 1979 till his junior enjoyed it or the respondent himself retired from service. The Government having itself granted him the benefit from 1‑4‑1979 to 13‑11‑1979, he will be further entitled to the same benefits as from 14‑11‑1979 till the date of his retirement or as long as his junior enjoyed it, whichever happened earlier. With this modification the appeal is dismissed with no order as to costs."
12. An "Average" report cannot be construed as adverse and in this respect reliance is placed on PLD 1992 Supreme Court 144 wherein it was held:
"In the present case undoubtedly the appellant had to his credit two 'good' reports, and the remaining three reports were 'average. Accordingly, looked at from this angle there being no impediment move‑over had to be granted to him. The entire picture regarding Government instruction in this behalf was not taken into account by the Tribunal and, thus, this appeal merits to be allowed on this ground along."
13. In the instant appeal the appellant had "good" record of service except that the Countersigning Authority dubbed him "unfit for promotion" which, without valid reasons, cannot adversely affect service career of the appellant keeping in view the overall "good" grading and commendable words recorded in the A.C.R. by the Reporting Officer. The Countersigning Authority was legally required to append a note in the event of his disagreement with the Reporting Officer and his failure to do so cannot be considered as a hurdle in the way of the appellant who otherwise stands unscratched in the A.C.R.
14. In the present case the appellant has never been communicated any adverse remarks in his A.C.R. and hence in such a situation the appellant cannot be condemned for any such material which, in fact, is not available on record. In this respect reliance is placed on 1996 SCMR 8'50 which also clears the appellant from any doubt, if any.
15. It is further to observe that the learned counsel for the respondents took reliance can 1991 SCMR 1558 and 1995 SCMR 881 but these cases are not applicable to the peculiar facts of the instant case. It is not a case of fitness for promotion but due to erroneous or indifferent approach of the respondents the appellant was condemned without legal justification.
16. According to the latest authority of the Honourable Supreme Court of Pakistan, contained in 1998 SCMR 736, a civil servant is entitled to be considered for promotion even after his retirement from service inclusive of all back benefits specially when a civil servant is possessing "good" A. C. R.
17. Keeping in view all the facts and attendant circumstances and judgments of the Honourable Supreme Court, referred to above, we are constrained to hold that the appellant was condemned without any fault on his part specially when nothing adverse was available in his A.C.R. under report. The appellant appears to be entitled for consideration and promotion by the Departmental Promotion Committee concerned. There is a legal maxim in Arabic which reads:‑‑
(The basic presumption in things is permission).
It can further be interpreted that everything is "good" otherwise proved "bad", as every man is noble unless proved otherwise and likewise everything is permissible unless specifically prohibited. This approach is positive and is deeply embedded in all our activities official and private. It relates to civil matters whereas in criminal matters this principle is contained in the holy traditions:
(i) "(Ward off punishment with doubts Masnad Abi Hanifa)."
(ii) "(If there is any possible way of doing it, save God's creatures from conviction and punishment Ibne‑Maja)"
(iii) "(Wherever possible save the Muslims from (punishment) because it is better for the Imam (Judge) to err in acquittal than in conviction.(Tirmizi). See also PLD 1956 (W.P.) Lahore 300.( )
18. The aforesaid injunctions of the Holy Prophet (peace be upon him) are in reality a base for Criminal Administration of Justice and in the event of real doubt the accused shall have to be acquitted of the charge. Both the Civil and Criminal Administrations of Justice are further based on the general principle "the basic presumption in things is permission".
19. Pursuant to what has been discussed above, we hope that the learned Departmental Promotion Committee will graciously be pleased to reconsider the case of the appellant for promotion with effect from the date his juniors were promoted and we thus dispose of this appeal accordingly with no order as to costs.
H.B.T./269/St./F Order accordingly.