' NAZAR MUHAMMAD SHAIKH (MEMBER).---Appellant has filed this appeal under section 4 read with section 2-A of the Service Tribunal Act of 1973 to assail the Respondent No. 1 's Appellate order conveyed to the Appellant on 22-11-2000 whereby his departmental appeal dated 9-10-2000 against the promotion of Respondents Nos.4 to 10 was rejected.
2. The facts of the case are that the Appellant was appointed as Medical Officer in the Respondent- Organization on 14-1-1977 and his seniority status was at No.2 whereas one Dr. Farhana Hafeez P.32492 was No.1 in the seniority list of doctors in Group-VIII.
3,. Learned Counsel for the Appellant strenuously argued appeal and stated that the promotion of Respondents Nos.6 to 10 was made in disregard of promotion policy and that the Promotion Board which was illegally , constituted was influenced by the presence of Acting Chief Medical Officer who managed to get all those doctors who had filed representation against his illegal appointment superseded. He further contended that in disregard of promotion policy 10 doctors were called for interview as against 15 persons required to be called. He further pointed out that Respondent No.10 as sister of the Acting Chief Medical Officer and therefore, he could not sit in the Selection Board. He also pointed out that Promotion Board was re-constituted as Administrative Order No.4 of 1993 and only three-member Promotion Board was nominated to be presided over by the Respondent No.1 i.e. Managing Director, Deputy Managing Director Operational Director and Director Administration was to act as also being Member Secretary of the Promotion Board. This administrative order was also withdrawn and superseded by' a new Administrative Order No:4 of 2001 issued on 19-3-2001 wherein the composition of the Promotion Board was further re-constituted with Managing Director. As the President, Director Administration and Director concerned as member and another Director to co-opt as Director was the concerned Director and General Manager (Personnel Services) was to act as Member Secretary. It was asserted that even this re-constituted Board did not provide for Acting Chief Medical Officer to participate in the deliberations. He argued that there was no approval for Acting Chief Medical Officer to sit in the deliberation of the Promotion Board in Which he participated with mala fide intention for victimizing doctor who had contested her appointment and also to favour her own favourites and relatives.
4. Learned Counsel for the Respondents assailed the contentions of the Appellant and preliminary legal objection raised by the Appellant and contended that the Appellant has failed to make the Respondent-Organisation as a party in the above proceedings and that only functionaries of the Respondent-Organisation have been made as Respondents which was not legal. He further pointed out that the Appellant's appeal was not maintainable as no right of promotion was guaranteed' to the Appellant under any law or rules of the. Corporation and that claiming relief of operation was hit by section 4(1)(b) of the Service. Tribunals Act of 1973 which stipulates that no appeal lies against in order or decision in respect of promotion, He also further stated that the Appellant has filed his departmental appeal which was endorsed to other functionaries of the Government of Pakistan which was in violation of the PIA's Regulations. It was also denied that Respondent No.4 had been appointed irregularly. It was agreed that since the Respondent No.4 was appointed way back in 1987, her appointment cannot be challenged by the Appellant after a lapse of '13 years. It was further argued by the Learned Counsel for the Respondents that the Appellant's case for promotion was processed in light of provisions of the Personnel Policies Manual and referred to para 30-1-2002 which lays down that promotion of the employees shall strictly be made in accordance with the fitness determined by the Management and that no employee shall have a vested right in promotion. He also referred to the Hon'ble Supreme Court's decision in Civil Petitions Nos.643 and 644 of 2002 in the case of v. Mr. Sajid Mahmood Ansari and Mr. Muhammad Shafi Khan Wherein the Hon'ble Supreme Court held that 'nobody can ask for promotion as a right and the giving or refusal of promotion is a matter, which is within exclusive domain of the Government/executive authority."
He stated that the promotion of the Respondents Nos.6 to 10 was made strictly in accordance with the promotion policy of the Respondent-Organisation. He also denied that criteria of calling three candidates each to a vacant post was a mandatory requirement. He also stated that Respondent No.4 was not a member of the Promotion Board but she was co-opted to assist the Board for any technical queries. With regard to Respondent No.10 i.e. Sister of Respondent No.4, it was pointed that the Respondent No.4 left the room when she came for' interview. He further stated that composition of the Promotion Board was strictly in accordance with the Respondents' policy. And, as such, no objection can be raised on the constitution of the Board.
5. We have considered the submissions of the Counsel from either side and perused the record and citations referred to by the Counsel. The facts do establish that the Appellant's whose seniority status was at serial No.2 in the seniority list whereas Respondents Nos.6 to 10 who had been promoted were at serial Nos.3, 7, 10 and 12 respectively. The perusal of the promotion policy of the Respondent-Organisation which is laid down in para. 30 in Personnel Policies Manual clearly indicates that the promotion shall be made on basis of merit and the Corporation's requirement and subject to availability of permanent post/vacancies and that the merit was to be judged. The relevant provisions are reproduced below.
"30.01 Promotion Policy ' 30.01.01 Promotion shall be on the basis of merit and Corporation's requirements, against available approved permanent posts/vacancies only. In accordance with the requisite qualifications or specifications, as the Competent Authority may prescribe from time to time.
' 30.01.02 The requisite qualifications for promotion to higher grade or pay group shall, inter alia, include merit proven record of service and potential of the employee for successfully shouldering higher responsibility. Merit shall be determined by the Management whose decision shall be final and binding.
' 30.01.03 Subject to the provisions of clauses 31.01.01 and 30.01.02, any employee possessing such minimum qualifications as may be prescribed by the competent authority and otherwise considered fit by it, shall be eligible for promotion to a higher grade or pay group; provided that no employee shall have a vested right to be promoted to a particular post, grade or pay group by virtue of seniority or possession of certain prescribed minimum qualifications or specifications."
' We are unable to subscribe to the Appellant's contentions that the Board was illegally constituted but his contention is of substantial merit that the Acting Chief Medical Officer could not be called to assist the Promotion Board while conducting interview of doctors for promotion. There is no provision in the PIA's Regulations for the Acting Chief Medical Officer to participate in the Promotion Board and since her appointment as such was disputed by some doctors including the Appellant it was not prudent for the management to allow her to participate in the proceedings of the Promotion Board. Another infirmity pointed out by the Appellant was that only ten candidates were interviewed by the Promotion Board as against fifteen required to be interviewed as per para. 30.01.18 of the Personnel Policies Manual which reads as under:-- "Service particulars pro forma shall be prepared as per procedure laid down on the basis of three
(3) candidates for each Position in order of seniority of eligible candidates".
' The above provision clearly makes it mandatory and obligatory to prepare a panel of three candidates for each vacant post which was admittedly disregarded by the Respondents making the promotion process flawed. We are mindful of the provisions of section 4 of the Service Tribunals Act of 1973 which precludes us to consider such appeals and as also held by the Hon'ble Supreme Court that promotion is not a vested right for allowing promotion or refusing promotion was the exclusive domain of the Government or executive authority but we can intervene when there is substantial defect in the proceedings of the Promotion Board which are defective as pointed out earlier. Further Respondents B also did not bring anything adverse on record against the Appellant to warrant his supersession.
7. In view of the above discussion we set aside the proceedings of the Promotion Board whereby the Appellant has been ignored for promotion and his juniors have been promoted we direct the Respondents to re-convene the Promotion Board strictly as per A.O. No.4/2001 and re-consider the candidates for promotion strictly in accordance with the provisions of the Personnel Manual.
8. No order as to costs. Parties be informed accordingly.