QAZI MUHAMMAD HUSSAIN SIDDIQUI, MEMBER.- -- These two appeals are based on identical facts and law we shall, therefore, dispose of these appeals by this single common judgment.
2. In the year 1998, the appellants had been serving the Pakistan Steel Mills Corporation Limited (hereinafter called "Pakistan Steel") as Deputy General Managers in the Communication and Signaling Department and Engineering Laboratory respectively, In the seniority list circulated by the management of Pakistan Steel, the names of appellant Umer Faruq was at serial No. 26 while the name of appellant Abdul Hameed was at serial No. 16. A meeting of the Departmental Promotion Committee -(hereinafter called "DPC) was held on 21.9.1998 for selection of Deputy General Managers for promotions to the post of General Managers. The criteria for selection, inter- aiia, was ACRs grading of the past five years (1993-1997) and the minimum 70% marks were required for qualifying for promotion to the post of General Manager. The DPC comprising respondents 2 to 5, considered the names of 38 Deputy General Managers, out of which it recommended the names of 19 Deputy General Managers i.e. Respondents 6 to 24, for the posts of General Manager. The respondent 6 to 24 were accordingly promoted as General Manager after approval by the respondent 1. The two appellants were not recommended for promotion as they secured less than 70% marks in the quantification.
3. Being aggrieved for having not been selected on the basis of securing less than 70% marks in qualification, which, according to him, was not provided in the Service Rules of Pakistan Steel, the appellants filed Constitutional Petition No. 1633 of 1998 before the Hon'ble High Court of Sindh on 23.10.1998, but the same was dismissed in limine being not maintainable with direction to the appellants to invoke the jurisdiction of the Federal Service Tribunal, if so advised. The. Appellants then filed these appeals before the Tribunal on 29.10.1999 under section 4 of the Service Tribunals Act of 1973, praying as under:- "(a) To set aside the minutes of the D.P.C, which is based on 70% aggregate marks of the ACR of the past five years, violative of the rules, 1990, as there had been not enough vacancies of G. Ms at such time of holding of DPC.
(b) To set aside the recommendation of the respondent No. 2 to the respondent No. 1 for approval of the said DPC minutes as same person acted in two different places, which is against the principles of natural justice.
(c) As there is serious violations of the rules, as such the order of promotion passed by the respondents No. 1 and 2 above dated 3-10- 1998 of the respondents No. 6 to 24 be set aside.
(d) The respondents No. 1 and 2 be directed to reconvene the fresh DPC against the newly created posts of the General Managers, adverse and observe the rules applicable to Pakistan Steel Mills Officers and recommended the name of the Deputy General Managers as per formula 'SENIORITY- CUM- FITNESS' to the post of General Managers (Selection Post) and the incumbents be interviewed for further promotion as per rules.
(e) To award the costs of the appeal to the appellant from the respondents No. 1 to 5 as the appellant suffered due to illegal actions of the respondents No. 1 to 5 above.
(f) Any other relief as the Honourable Court may deem fit and proper under the circumstances of the case,"
4. The respondents resisted the two appeals by filing their written comments wherein they have justified the non-selection of the appellants for promotion to the post of General Managers due to less than 70% marks of their ACR in the quantification.
5. We have heard the learned counsel for the parties and perused the authorities cited at the bar.
6. The learned counsel for the appellants assailed the selection of respondents 6 to 24, amongst others, on the main ground that ignoring the appellants for promotion on the basis of quantification was illegal as quantification was not provided in the Service Rules of the Respondents, who had to be considered for promotion in accordance with Rules 2.33 and 2.34 of Pakistan Steel Officers Service Rules and Regulations 1989. The learned counsel has pointed out that as per Rule 2.25 all posts of grade of Deputy General Managers and above shall be treated as selection post, and promotion to such post shall be made subject to the availability of sanctioned vacant posts in the higher grade, depending on the seniority and fitness of the officer (in accordance with RJe-2.33) as also the prescribed length of service as per Rule 2.33; The learned counsel for the appellants further argued that the appellants further argued that the appellants fulfilled the criteria for promotion under the Rules, as mentioned above, but they had been illegally deprived of promotion on the basis of quantification, which was an element of Esta Code, which was applicable to the employees of Federal Government only and that the provisions of Esta Code had not been adopted by the Pakistan Steel for promotion of its employees. The learned counsel for the appellants stated that the respondents 2 to 5 had prescribed their own criteria for promotion of the appellants and other making 70% marks of ACR in quantification and on the basis of such quantification the respondents, ignoring the criteria laid down in the Rules, selected some of the respondents who were not eligible for promotion. The learned counsel urged that for these reasons the order of promotion passed by respondents 1 and 2 dated 30.10.1998 be set-aside and they be directed re-convene the fresh DPC against newly created posts of General Mangers, In support of his arguments, the learned counsel for the appellant relied on PLD 1983 SC 385, 1991 SCMR 1129, 1996 TD (Service) 338, 1991 PLC (CS) 975, 1995 SCMR 650, 1998 SCMR 208, PLJ 1998 TRC (Service) 264; 1997 PLC (CS) 1207, 1999 TD (Service) 37 and unreported judgment of this Tribunal dated 6.5.2005 passed in appeal No. 288(K)(CS)/2001 (Ahmed Ali Khan vs. National Bank of Pakistan).
7. The learned counsel for the respondent argued that the appeals were hopelessly time barred, as such, these were not -maintainable; that the post of General Manager was a selection post,-but as per Rule 2.25 promotion had to be made on the basis of seniority-cum-fitness and thereby created no vested right of the Appellants to claim promotion by way of right on the basis of seniority alone; that the appellants were bad for joinder and non-joinder of parties as respondents 6, 8, 9, 10, 13, 14, 15, 16 and 20 had already been retired and they were no more in service, that the appellants had no cause of action to maintain the above appeals against the Respondents. The learned counsel for the respondents argued that the ACRs of the appellants were main documents for determining their fitness for promotion and these documents could only be evaluated, by means of quantification which was meant not only for the appellants, but ACRs all the 38 Deputy General Managers had been taken into consideration by the DPC for their promotion; hence, no prejudice was caused to the Appellant by means of quantification of the ACRs. The learned counsel for the respondents strenuously argued that no appeal lay against promotion as per Section-4(i)(b) of the Service Tribunals Act of 1973, and on that ground alone the appeal were liable to be dismissed.
Lastly, the learned counsel for the respondents argued that both the appeals had become inunctuous as both the Appellants had retired obtaining all service benefits; that appellant Abdul Hameed retired on superannuation and appellant Umer Faruq retired by obtaining VRF; that in addition to that most of the respondents retired by obtaining the VRF benefits or due to superannuating; hence, re-convening fresh DPC for considering the promotion of the appellants and reconsidering the promotion of those, who had already been promoted and had since retired would be an exercise in futility, as also it would open a Pandora box giving rise to unending litigations. The learned counsel, therefore, prayed that the two appeals be dismissed.
8. We have carefully considered the arguments of both sides. Taking up first the question of limitation, wed find that against the impugned order of promotion dated 21.9.1998, the appellants had straightaway approached the Hon'ble High Court of Sindh in C.P. NO. 1633/98. They did not approach the Service Tribunal before which an appeal would have been maintainable on the ground of promoting the juniors of the appellants illegally, as alleged by them. The spent about 11 months time in the Hon'ble High Court which was not a proper forum for service appeals; hence, delay due to time spent in the wrong forum for even on the advice of their counsel, could not ordinarily be condoned, but in view of the observations of the Hon'ble High Court in its order dated 8.9.1999, ("we are sure that the Hon'ble Service Tribunal will take into consideration the period that has been spent in proceedings with the matter in this Court, apparently arising out of mis- apprehension founded upon a complex legal question, for the purpose of condoning delay"), we are inclined to condone the delay in filing the two appeals by the appellants, moreso, considering the fact that the Apex Court had also in a number of authorities, in such a situation, took sympathetic view and condoned the delay, preferring decisions on merit rather than on technicalities. Delay in filing the appeal by the appellant is condoned accordingly.
9. The main grievance of the appellants was about the quantification, It is true that quantification has not been prescribed in Pakistan Steel Officers Service Rules and Regulations 1989, but its adoption is also not barred in such rules, It is not denied by the learned counsel for the appellant that the ACRs are important component for determining the fitness of an employee for promotion.
If the ACRs are not important components for considering promotion than how these are to be evaluated. Quantification though not provided in the Service Rules of the respondent-Pakistan Steel is the only way for evaluating the ACRs for determining fitness for promotion of an employee.
If the Appellants had been promoted on the basis of quantification, we are sure they would have no grievance. In our opinion, no prejudice had been caused to them by quantification of the ACRs, which was made the basis for consideration of all the 38 Deputy General Managers for promotion to the post of General Managers, It would have been a different matter; if quantification had been made only in the case, of appellants and not in the case of other Deputy General Managers We, therefore, do not attach much importance to the objection of the learned Counsel for the appellants against quantification of the ACRs for consideration of Appellants promotion which was not based op seniority alone, but was to be considered on the basis of seniority-cum-fitness as per Service Rules of Pakistan Steel. Needless to say that the appeal against fitness for promotion or otherwise is barred by law, as mentioned above. On the other hand, the appellants and most of the promoted respondents have since retired, holding a fresh DPC for considering of the promotion of the appellants would not be possible nor desirable as it might entail undoing of the promotions already made, which, we agree with the learned counsel for the respondents, would open a Pandora box leading to unending litigation, reconvening DPC would be unadvisable and it could not be considered to be-a wise and prudent step.
10. In the circumstances and for the reasons mentioned above, undoing the promotions of the promoted respondents, which had not been challenged before the proper forum viz: Service Tribunal for a period of about 11 months, would not be justified, nor directions to the respondents 1 to 5 to reconvene the fresh DPC, as prayed by the appellants, would serve any useful purpose, since the appellant and many of the promoted respondents have already retired, In the Full Bench authority reported in 2003 PLC (CS)" 212 (Government of Pakistan through Establishment Division, Islamabad and 7 others vs. Hameed Akhtar Niazi, Academy of Administrative Training Walton, Lahore and others) it has been held that promotion from back date to the retired civil servants cannot be granted. We must add here that consideration of promotion of the appellants after retirement will also not be justified. The authorities and judgments cited by the Learned counsel for the appellant and distinguishable and not applicable to the case of the appellants.
11. We are, therefore, unable to grant the relief, prayed for by the appellants. Both the appeals have become infructuous, as urged by the learned counsel for the respondents, as such, these are dismissed with no order as to costs.
12. Copies of the judgment be sent to the parties under registered cover and to the relevant quarters under Rule 21 of Service Tribunals (Procedure) Rules, 1974.