MUHAMMAD ASHRAF KHOKHAR vs CHAIRMAN, RAILWAY BOARD, ISLAMABAD
The petitioner, an employee of the Railway Board, challenged his reversion from a Grade-17 officiating post to his substantive Grade-16 position and sought regularization of his prior service in the higher grade. He contended that his non-promotion was based on a mala fide 'average' grading in his Annual Confidential Record (A.C.R.) for 1976. The Federal Service Tribunal rejected his appeal, finding no evidence of bias, noting that the Countersigning Officer had previously supported the petitioner's career progression. The Supreme Court of Pakistan reviewed the petition for leave to appeal. The core legal question was whether the Tribunal erred in dismissing the allegation of mala fide regarding the A.C.R. entry. The Supreme Court upheld the Tribunal's decision, finding the petitioner's allegations of mala fide were vague and lacked specific factual support. The Court reaffirmed the established legal principle that allegations of mala fide against public functionaries must be based on specific facts and proven conclusively, rather than mere assertions. Consequently, the petition for leave to appeal was dismissed.
- Must allegations of mala fide against public functionaries be supported by specific facts?
- Can a court interfere with an administrative decision based on an A.C.R. grading in the absence of concrete evidence of bias?
- Is an employee entitled to regularization of service in a higher grade simply by virtue of having worked in that position on an officiating basis?
1. ABDUL KADIR SHAIKH, J.--Petitioner was promoted to officiate as Accounts Officer, in Grade-17, in his own pay and Grade, with effect from 6-12-1976, and he continued to hold that post till 22-8- 1979, when he was reverted to his original post of inspector, Couching and Goods, in Grade-16. He was again promoted on 12-1-1981 to the aforesaid higher post in Grade-17, on current charge basis, as Accounts Officer, and was allowed the pay of his own Grade-16 plus 10 per cent. By this time, 15 Officers junior to him were promoted to higher posts in Grade-17. After his promotion for the second time on 12-1-1981 petitioner applied to the Finance Member, Railway Board for treating the period he worked against Grade-17 post from 6-12-1976 to 22-8-1979 as one on regular basis but his request was rejected. He finally filed an appeal before the Federal Service Tribunal and took the plea that "since he worked satisfactorily in a post in a higher grade than his own for about three years, he should have been promoted to the higher grade when the vacancies were being filled" and further that the entry in his Annual Confidential Record (A.C.R.) for the year 1976 by which he was graded as "average" should not have been considered against him as that gradation was made mala fide by the Countersigning Officer.
2. The case of the Department in defence, was that the Departmental Promotional Committee did not approve petitioner's promotion to the post in the Grade-17 because of the aforesaid entry in his A.C.R. For the year 1976, and further that since after his reversion to his substantive post in Grade-16, petitioner continued to work for a period of more than 16 months, the intervening period could not be treated as regular officiation in Grade-17, and petitioner is not, therefore, entitled to the pay of Grade-17 for that period.
3. The Tribunal on the basis of the Departmental record did not accept petitioner's plea that the "average" report given by the counter--signing Officer for the year 1976 was mala fide for the reason that "no concrete evidence was produced before us to prove this point. On the contrary, we find that that officer had deleted the unfavourable remarks given against the appellant (petitioner herein) by the Reporting Officer in earlier years, that is, 1973 and 1974, and that, in a subsequent year, that is, 1977, he had accepted the "Good" grading given by the Reporting Officer." The Tribunal further observed in this behalf as under: "Our own impression is that the concerned officer is very thorough and careful in his assessments and, as such, in the absence of any evidence to the contrary, we cannot suspect any mala fide, so far as his comments as a Countersigning Officer are concerned. In view of this, we do not subscribe to the view that the D . P. C . Was misled by a biased report of the F. A . And C . A . O. Given in his capacity as the Countersigning Officer."
4. Petitioner who appears in person in support of this petition for leave to appeal from the judgment of the Federal Tribunal submits that the Tribunal has erred in rejecting his plea that the Countersigning Officer had acted mala fide in endorsing the impugned remarks against him in his A. C. R.
5. After having gone through the record of the case we find no substance in the plea raised by the petitioner as the learned Tribunal has rejected it for very cogent and proper reasons. Moreover the petitioner had raised the plea of mala fide without pleading specific allegations. This Court has repeatedly held that the allegation of ma la fide in respect of orders passed by public functionaries must be based on specific facts and proved conclusively. Only recently observations to this effect were made by this Court in Nabi Ahmad v. Ministry of Defence 1985 SCMR 1949.
6. For these reasons, the petition is dismissed.