MUHAMMAD ANWAR vs THE SECRETARY, ESTABLISHMENT DIVISION, RAWALPINDI And 2 Other

1. MUHAMMAD AFZAL ZULLAH, CJ. ---This appeal through leave of the Court is directed against the order of the Federal Service Tribunal; whereby the appellant's Service Appeal regarding move over, was dismissed.

2. The facts as narrated in the impugned order are as under:- The appellant's case is that his service record had been generally good inasmuch as no adverse entry had ever been communicated to him particularly during the last five years. The learned counsel for the appellant relied on clause (vi) of the Finance Division, Regulation Wing's O.M. Dated 1-1-1986 wherein it was laid down that for moveover to B-19, the employee should have earned "generally good" reports without any adverse entry during the last five years inclusive of the year of move-over. The learned counsel maintained that the appellant fulfilled both the conditions i.e. He had "generally good" reports and earned no adverse entry and, therefore, the respondent's refusal to allow him the move-over to B-19 was violative of the rules besides being unfair. It was also pointed out that two of his juniors had been allowed move-over notwithstanding the fact that their service record was no better. The learned counsel, therefore, urged that the impugned order may be set aside and the respondents be directed to place the appellant in B-19 with effect from 1-12- 1984, the date on which the appellant became eligible for being considered for moveover.

3. "The respondents have resisted the appeal. It was submitted that the appellant's case was duly considered but he was ignored for the reason that his service record was not good enough. We have seen the original record including the minutes of the meeting of the selection committee. It shows that the appellant was duly considered by the Committee. He was, however, ignored because, out of the last five years including the year of move-over, the appellant was assessed as "good" for the years 1980 and 1981 and "average" for the next three years. We also notice that the average reports were recorded by different reporting officers. On these facts, we are of the view that the appellant did not satisfy the condition of having earned "generally good" reports because in majority of the five years, he had been assessed as "average". `As regards the instances of two junior colleagues cited by the appellant, we found from the same original record placed before us by the representatives of the respondents, that their service record was better than that of the appellant. Afroz Asam had earned four good and one average report while S.EA. Gilani had earned three good and two average reports. Thus these officers fell in the category of those who in the last five years had earned "generally good" reports. On these facts we are of the view that the respondents were not wrong in not allowing the appellant move-over to B- 19.'

4. Leave to appeal was granted to examine the effect of the decision of the Tribunal in the case of Mumtaz Ali Khan v. Secretary, Establishment Division etc. (Appeal No.163(R)/1986) wherein the same Service Tribunal had allowed move-over from BPS-18 to BPS-19 to the appellant therein who had earned five average reports.

5. Learned counsel for the appellant has relied on S1.No.59 Page-654 and 655 of Estacode 1989 Edition to contend that in cases like the present one the move-over from BPS-18 to BPS-19 could not be denied. He has in particular relied on the following: "For move-over to BPS-19 the employee should have gained generally good reports and move over to BPS-20 at least good or higher reports without any adverse entry during the last five years, inclusive of the year of move-over."

6. Learned counsel also relied on Notification No.F.7(1)-Inip.l/90Vol.II, dated 17-2-1991 on the subject of extension of principle of move-over to all the employees of the Federal Government. This notification amends the earlier notification of 1986 on the relevant subject as follows: "For move-over from B-17 to B-18 and B-18 to B-19, at least two good reports without any adverse entry during the last five years inclusive of the year of move-over."

7. In the present case undoubtedly the appellant had to his credit two "good" reports, 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 instructions in this behalf was not taken into account by the Tribunal and thus this appeal merits to be allowed on this ground alone.

8. However, even with regard to the reasoning in the impugned judgment relating to the connotation of expression "generally good" that should be equated with the technical "good", the prefixing of the word "generally" itself conveys that in case of "generally good" the word "good" would not be taken to its technical extreme. It would not be expected in case of "generally good" that the civil servant should get formally "good" reports. If there is no adverse report against him and he gets "average reports" they would have to be treated as "generally good" for purpose of move-over. Because a report "average" cannot be treated as adverse unless specifically so treated and then conveyed to the civil servant as an adverse report. Notwithstanding the grading regarding the average in other aspects of civil service, in the context of move-over expression "generally good" would, amongst others, apply to mixed sort of reports containing good and average reports. Thus in the case of the appellant he had earned two specifically "good" reports. There was no adverse report and he had earned also three average reports. The effect of all these reports was "generally good" reports.

9. Learned counsel could not meet any of the aforenoted points. His reliance on a recent judgment of this Court dated 6-12-1990 in Civil Appeal No.779 of 1989 is of no help as the subject under discussion was not dealt therein and he after citing the same did agree that it was not applicable to the present case.

10. In the light of the foregoing discussion the impugned judgment is set aside and the prayer of the appellant for move-over from B-18 to B-19 in accordance with the other terms and conditions of his service, is allowed.