Muhammad Nawaz Abbasi, J.--This appeal with leave of the Court has been directed against the judgment dated 2.2.2001 passed by the Federal Service Tribunal, Islamabad, whereby the appeal filed by the present appellant seeking direction for his promotion from the date on which his juniors were promoted, was dismissed with the observation that by virtue of Proviso (b) to Section 4 of the Service Tribunal Act, 1973, such an appeal was not maintainable.
2. Leave to appeal was granted by this Court vide Order dated 6.6.2001 to consider the following questions:-- "1. In this case the petitioner was declared unfit for promotion but the requirement of law as laid down in FR 10-A (a) was not complied with as there was no medical examination of the petitioner or any special medical examination in order to determine that he was medically unfit.
2. In Annual Medical Reports the petitioner had been declared tit for promotion.
3. The petitioner had never been declared in category 'C' in the. Annual Medical Examination and, therefore, he could not be declared unfit particularly in the absence of Annual Medical Examination."
3. The sole question involved in the present appeal for determination relates to the fitness of a person to hold a particular post or to be promoted to the higher grade which include his physical fitness and whether the Selection Board can ignore a person by declaring him medically unit without his medical examination by a medical Board as envisaged under the rules to ascertain his physical and mental fitness to accept the high responsibility or to retain him in service.
4. Learned counsel for the appellant placing reliance on FR 10(a) has contended that appellant having clear service record has fulfilled required qualification for promotion but the Selection Board without any legal justification superseded him with the observation that notwithstanding the recovery of appellant from the ailment, he would still not be able to make any contribution.
5. Learned counsel for the appellant has contended .that the supersession of the appellant on the basis of his ailment, without ascertaining of the question of his physical fitness or otherwise through the medical examination by a medical board as provided under the rules was not legal.
6. Learned Deputy Attorney General has conceded the proposition that the physical fitness of a civil servant to accept the higher responsibilities or to retain him in service, cannot be determined by the Selection Board without medical examination by a medical Board as provided under FR 10A,
(a) as under:-- "F.R. 10-A, (a) The authority competent to fill the post held by a Government servant may require him to appear before a medical authority for medical examination if, in the opinion of the competent authority, the Government servant is suffering from a disease which renders him unfit for the proper and efficient discharge of his duties or from a disease which is communicable and is likely to endanger the health of others Government servants."
7. The plain reading of the above provision would show that without obtaining medical opinion about the mental and physical fitness of a person he cannot be declared unfit to be inefficient to discharge his duty or in the nature of his decease, his further retention in service is not proper. The competent authority may direct for medical examination of a person if he is found suffering from a decease which may render him unfit to discharge his functions effectively and thereby require him to appear before Medical Board to determine the question of his suitability for further service in the light of opinion of medical authority. The question of medical fitness or a disability of a person to discharge his duty cannot be determined without his medical examination and the law does not permit to declare a person medically unfit to hold a particular post on the basis of the remarks of reporting or countersigning authority in the A.C.R. regarding his poor health or that he was suffering from a deceased which may endanger the health of other Government servants.
8. The observation of the Selection Board regarding the fitness of the appellant was based on the remarks in the ACR whereas according to the instructions contained in FR 10-A(a) and supplementary Rules, 3 to 4-A of the Compilation of Fundamental & Supplementary Rules, Vol. 1, the mental and physical fitness of a Government servant on the first appointment or during service must be ascertain on the basis of his medical examination. The Instruction No, 4.15 contained in "A Guide to the Performance Evaluation" issued in 1991 by the Cabinet Secretariat Management and Services Division, divided the Government servants into three categories. Category 'A' consists of Government servants without any mental or physical disability and the category 'B' relates to the Government servants of partial disability whereas Category 'C' relates to complete incapacitation.
In view thereof, the health condition of a Government servant to determine his category must be ascertained on the basis of the opinion of medical Authority and not in the light of personal observation of the departmental authorities or the selection board.
9. In the light of foregoing discussion we hold that a person can not be superseded/ignored on the ground of ailment unless he is a medically categorised on he basis of medical examination conducted by the competent medical authority in accordance with the rules on the subject and in that an aggrieved Government servant may avail the remedy of appeal under Section 4(b) of Service Tribunals Act, 1973 if he was deprived of his legitimate right of promotion in an illegal manner and improper exercise of jurisdiction.
10. In the light of foregoing reasons, we set aside the judgment of the Tribunal impugned in the present appeal and send the case back to the competent authority for consideration of the case of appellant for promotion on the basis of his eligibility and the service record in accordance with law within three months. This appeal is accordingly allowed with no order as to costs.