ABDUL GHANI SHAIKH, CHAIRMAN.- Through the instant appeal, appellant has assailed the Notification dated 02.04.200T issued by' the Chief Secretary, Sindh whereby private respondent Nos.
5 & 6 (M/s. Mehboob Alam . Ansari and Munir Ahmed Awan) were promoted to the post of Chief Conservator of Forests/Additional Secretary. (Technical) in B-20 and prayed that meeting of Provincial Selection Board No. 1 may be re-convened to determine afresh the promotion cases of appellant and two private respondents after re-assessing, -re-evaluating and reconsidering 'the suitability and fitness of all the three incumbents.
The memo, of appeal contains 58 page's which is full of repetitions, besides, many documents which are annexed with the appeal, have been reproduced in the memo, of appeal. However, briefly the facts relevant foi the purpose of disposal of the instant appeal are that appellant and private respondent NO. 5 were appointed on 0U10.1974 as Assistant Conservator of Forests (B-18) through the Sindh Public Service Commission, while private respondent No. 6 was appointed in said capacity on 03.11.1975. In the seniority, list appellant was shown senor t the private .Respondents.
Appellant and both the private respondents were promoted to the post of Conservator of Forests (B-19) w.e.f 14.10.1992. In a seniority list notified on 17 0.7 1993appellant's name was at Sr. No. 1. While that of private respondents at Sr. No. 3 & 4 respectively. Appellant alleged that his service record was spoiled by respondent No'. 5 alongwith M/s. Ali Ghulam Lakho, Divisional Forest Officer and Yousif Ali, Assistant Accounts Officer for inquiry and as per inquiry all the said officers were found responsible for spoiling appellant's service record with mala fide intentions.It has been mentioned in the memo, of appeal that the Federal Government v/cfeoffice memorandum dated 12.11.1998 formulated a promotion policy which was also adopted by the Provincial Government of Sindh, whereby part reports written in a calendar year was ordered to be quantified on the basis of weighted average proportionately instead of their average or arithmetic mean arid that after 1998 all promotion cases , in Government of Sindh were made according to quantification as per formula referred-in the said office memorandum. As per memo, of appeal there were precedents whereby. The ' officers having lower quantification than 70 were recommended and approved for promotion from to B-20 as has been done in the case of Mr. Bahauddin Sirhindi who was promoted from the post of Conservator of Forest (B-19) to the post of Chief Conservator of Forests (B-20) whose overall grading was just 64.82 i.e. Lower than the minimum requirement of 70 marks. The A.C.Rs of appellant for the period from 1997 to 2003 are mostly A/l excellent, outstanding and very good. In March, 2004 one post of. Chief Conservator.Of Forest (B-20) fallen vacant due to retirement of Mr. Abrar. Hussain Mirza, which post was to be filled by the Provincial Selection Board- ; I as per Promotion Rules/Policy of 1975 on the basis of seniority-ctv/77-fitness from amongst three most . Senior' officers and the Administrative. Department with the consultation of S&GAD after going through the antecedents, seniority, past record and quantification prepared working paper for consideration of promotion. M/s. Ghulam Mustafa Shaikh. Bashir Ahmed Nizamani (appellant) and Ali Gul initially, recommended by the department, but'for certain rec.-.Orjs the meeting of P.S.B-I .Was not. Convened, at therelevant date. Subsequently, M/s. Ghulam Mustafa Shaikh and Ali Gul Lakho on attaining the age of superannuation were retired in October, 2004 and January, 2005 respectively. Therefore, for another meeting a fresh working paper was prepared wherein names of private respondents- namely M/s. Mehboob Alam Ansari and Munir Ahmed Awan (both juniors to appellant) were also included. 'Some where in March, 2005, the meeting of P.S.B-I was held wherein both the juniors of appellant viz. Private respondents Nos: 5 &*6 were cleared and recommended for promotion to the post of Chief Conservator of Forests/Additional Secretary (Technical) in B-20, while appellant despite being senior, fit and eligible in all means was ignored without any reason.
On the recommendation of P.S.B-I and with the approval of Competent Authority the promotion of both the private respondents was notified vide Notification dated 02.04.2005 issued by the Chief Secretary, Sindh, feeling highly dissatisfied and aggrieved, appellant preferred departmental appeal, to the Chief Minister, Sindh on 30.04.2005 and on getting no response within the stipulated period of 90 days, appellant has invoked the jurisdiction of this Tribunal praying that official respondents may be directed to prepare fresh working paper of all the three candidates and to reconvene the meeting of Provincial Selection Board-i to review and reconsider the prombtion cases of appellant and private respondents by placing appellant in juxta position with both of them after'-taking into consideration the past service record of appellant and re-assess, re- evaluate and reconsider his suitability of Forests (Bt20) w.e.f. 0.2.04.2005 i.e. The date from which his juniors were promoted.
3. The official as well as private respondent No. 5in rebuttal filed their respective written statements, wherein they refuted and rebutted the averments raised, in the memo, of appeal and prayed for dismissaj of appeal.
4. In support of appeal,-learned counsel for the appellant in his lengthy arguments reiterated the contentions raised in the memo, of appeal. He further argued thatappellant joined Forest Department in October, 1974 as Assistant Conservator of Forests and performed his duties diligently. His official enemies spoiled his service record and on his complaint an inquiry was ordered and it was proved that private respondent No. 5 with his associates was responsible for spoiling appellant's service record. In 1992 appellant, and private respondent were promoted as Conservator of Forests (B-T9) on the same day and they carried their inter se seniority. Appellant's quantification being more than 70 was recommen,ded- for promotion to B- . 20 being on top of the seniority list but some how or other the meeting of P.S.B-1 was not convened and in the second meeting appellant was ignored and private respondents were promoted, although private respondents No. 5 was facing investigation lay NAB and was not entitled to be promoted. He added that there were precedence when the, officers having quantification of less than 70 were promoted to higher posts and in that regard he cited example of one Mr. Bahauddin Sirhindi. He stated that no reason of whatsoever nature has ever been communicated to the appellant for ignoring him from being promoted to B-20 although his quantification score was 74.56 and... (Sic .).
5. In rebuttal, learned Asstt. A.G. On behalf of official respondents while referring the.Written statement and the docurpents annexed therewith argued that appellants' whole service record remained patchy and on numerous occasions he was proceeded against departmentally and was penalized. He earned adverse remarks in his A.C.Rs of 1983, 1984 and 1086 and his quantification for integrity was only 55 as against the minimum of 60 and for that reason he was not cleared for Move .Over to B-19 .In 1985: he challenged, adverse entries before this Tribunal earlier in Appeal Nos.
84/1987, 86/1988 and $1/1988 which vide common judgment dated 10.7 1989 were dismissed. She argued that as a matter of act appellant's quantification' score was much below than the minimum prescribed score of 70 for promotion to B-20. She submitted that appellant's original assessm ent quantification as per' A.C.Rs for theperiod from 1998 to 2003 sent to S&GAD on 02.09.2002 was 62.22 but he subsequently with the aid. Of former Secretary, Forest Deptt. Tampered within the A.C.Rs arid enhancement of quantification score from 62.22 to 74.56 as per letter dated 07 02.2004 sent to S&GAD and that after necessary verification of the ACR and previous working paper, the Administrative Department sent the revised working paper . for P..B.S. No. 1 to S&SAD on 04.12.2004 with the result that appellant's quantification score was reduced from 74.56 to. 68.28 and because of low quantification score of 68.28 as against the required score of 70 appellant was superseded by P.S.B No. T in its meeting held on 31.03.2005 and the private respondents whose quantification score was much more tfian the minimum quantification were cleared for promotion to B-20, there was thus no wrong either on the part of Administrative Department or S&GAD sand the Provincial Selection Board.
6. Learned counsel for private respondent No. 5while adopting the arguments advanced at bar by learned Asstt. A,G. Has challenged the very maintainability of appeal and stated that under clause
(b) to proviso 4 of the Sindh Service Tribunal Act, 1973, the appeal is barred. He further submitted that private respondent No. 5 had nothing to do with the decision of P S:B. No. T and his respondent in no way played any part for the supersession of appellant. As regards NAB investigation, learned counsel argued that this respondent has already been cleared from the frivolous charges levelled against him and "even otherwise mere investigation in any case is not a bar for consideration of promotion to the higher rank. He relied upon 1995 SCMR 881, 1996 SCMR 329. 1990 SCMR 850, 1998 SCMR 607, 2001 SCMR 1446, 2002 PLC-(C.S) 1002 and 2003 PLC(C.S)
56. '
7. So far private respondent No, 6 is concerned, he has already, been retired from service on attaining the age of superannuation and for that reason appellant has already withdrawn appeal against respondent No. 6.
8- We have carefully considered the above submissions and with the assistance of learned counsel for the parties the material placed on the record has been scrutinized minutely. Section 9 of Sindh Civil Servant Act, 1973 provides that a promotion in a case of a selection post shall be mqde on the basis of selection on merit and in the case of non-selection post, on the basis of seniority-CL//77- fitness. There is no-denial of the fact that the posts carrying B-19 arid 20 are selection posts thus the merit. In 2002 .Two posts of B:20 became vacant in Forest Department and for filling the said posts, the department had submitted working paper for Provincial Selection Board No. 1 to the Services & General Administration . Department. In the first, working paper dated 02.09.2002 the appellant's marks as per quantification of A.C.Rs for the period from 1.974 to 2001 in overall grading were 62.22. In the second working paper dated 0T.02.2004 his marks were shown as 74.56 as per quantification of A.C.Rs for the period from 1974 to 2003. However, as it appears because of certain administrative reasons the meeting of P.S.B-I could not be field on both the occasions./After submission of second working paper and before submission of third . Working paper dated27.09.2004 it transpired that appellant in collusion with outgoing Secretary, Forest & Wildlife Department, got his A.C.Rs for the years .1998 to 2001 tampered by enhancing- the assessm ent from lower side to higher side in order to increase the quantification score beyond the minimum prescribed marks of 70 for promofion to B-20, as according to original assessment for the period from 1998 to 2003,' appellants,' overall quantificatiori marks were 62.22 and after enhancement it goes upto 74.56. Therefore, in third working paper dated 27.09.2004 appellant's quantification marks were shown &s 68.28 for the period from 1974 to 2003, however, this time too the meeting'of P.S.B.4 could not be held. Subsequent thereto, M/s. Ghulam Mustafa Shaikh and Ali Gul Lakho, Conservators of Forests, on attaining the age of superannuation were retired from service, therefore, in fourth working paper their names were not included and deleted and the names' of their next juniors namely. M/s.. Mehboob Alam Arvsari in the said fourth working paper'the appellant's quantification marks were shown as 68.28 while that of M/s. Mehboob Alam Ansari and Munir Ahmed Awan. Were shown as 76.68 and 77.84 respectively. This time the meeting of P.S.B-I was held on 31.03.2005 wherein both the private respondents were cleared for promotion to B-20 while appellant was superseded for the reason of having low quantification score /.e. 68.28 against the required score 70. On the basis-of said recommendation and with the approval of competent authority, both the private respondents vide Notification dated 02.04.2005 were promoted to the posts of Chief Conservator of Forest/Additional Secretary (Technical) (B-20), which the. Appellant after availing departmental remedy has challenged in the instant appeal.
9. Admittedly, appellant due to low quantification was not found fit for promotion to B-20 and was thus superseded, therefore, in view of proviso.(b) to Section 4 of the Sindh Service Tribunals Act, 1973, the appeal before this Tribunal is not maintainable. In this regard reference-can also be made to the case of Habib-ur-Rehman Vs. Secretary,' C&W, Govt, of Siridh & others (2003-PLC(C.S)
56). The eligibility' or 'fitness of a civil servant' were discussed in the' case of Mian Abdul Malik Vs. Dr. .Sabir and others (1991 SCMR 1129), wherein it was observed that: '"What is barred from the jurisdiction of the TribunaLis the question of fitness of a civil servant for promotion. The determination of his eligibility, is a question on which jurisdiction of the Tribunal has not been barred. The question of eligibility relates primarily to the terms and conditions of service and their applicability to the civil servant concerned. Fitness introduces an element of subject evaluation on the basis of objective criteria where substitution of an' opinion of The competent authority is not possible by that of a Tribunal or a Court. It is in this for promotion has always been considered to be exclusively within the.NO L&-S.C Key Law Reports Vol. XXVIIA . .Jurisdiction of the competent authority not' shared by the Court of Tribunal exercising supervisory jurisdiction in respect of eligibility and qualification.
"The above view was followed in a case of Muhammad Anis vs. Abdul Haseeb and others (PLD 1994 SC 539). Both the above cases have been referred in the case of Zafarullah Baloch vs, Govt, of Balochistan & others (2002 PLC (C.S) 1002).. Besides, a civil servant has no vested right to promotion as has been held and observed in various reported cases. In a case of Secretary, Education Department Sindh vs, S.Riaz-ul Hassan (1986 SCMR 64), it was observed: - "That a civil servant/tias no vested right to promotion and prospects of promotion cannot be included in. Conditions of service, was settled proposition-of law even before the Civil Servants Act, 1973. However, the provisions of Section 9 of the Act clearly postulate 'that promotion to a selection post can be made on the basis of selection on merit and to a non-selection post on the basis of seniority-cu/u-fitness. On the plain reading of the section the criteria for making promotion to the- higher grade implies a decisipn by the competent -authority according to the individual judgment of such authority. The underlying principle seems to be that seniority alone is not the determining factor for judging the suitability or fitness of civil servant for discharging the functions attaching to a post in the higher grade. An outside forum in the very nature of thing cannot sit in appeal and review the judgment of the 'competent authority regarding the fitness for promotion of a civil servant. This seems to, be the philosophy underlying the embargo contained in clause (b) of the proviso to Section 4 of the Sindh- Service Tribunals Act, 1973, which provides that no appeal shall- lie to the Tribunal against such order of a departmental authority for the purpose of.Promotion ...
Not a higher post or grade. It is not disputed before usthat no appeal lies against an order of a.Departmentalauthority refusing to promote a civil servant.
"In another case of Sarwar Hussain Shah vs. Azad Kashmir Govt. & (Sic ),.."From .The survey of the case-law there remains no manner of doubt that an order of departmental authority determining the fitness or otherwise of a civil' servant to be promoted to higher grade is always within the jurisdiction and domain of that authority. A' Tribunal or a': Court cannot substitute .Its own view, in place of view of the departmental authority."
10. Contention of appellant's learned counsel that private respondent No, 5 was not eligible to be considered for promotion to B-20 .For the reason that he was facing investigation in SlAB case, has no force. It is suffice it to say that mere facing investigation in NAB case in no way disentitle a civil servant for being considered for promotion to a higher rank. Besides, the. NAB itself vide letter dated 24.03.2003 addressed to the Secretary, Establishment Division, Govt, of Pakistan, Islamabad, desired that all civil servants may be considered for promotion who have been under investigation of NAB for over one year. In another letter dated 17.04.2006 addressed to the Chairman, Federal'
Public Service Commission, Islamabad, recommended .That all civil servants whose.Cases are pending with NAB may be considered for postings/promotion on merit in order to give them fair and just chance.For their progression. It is pertinent to mention here that according to administrative department the Investigation of NAB case against private respondent No. 5 has already been concluded and he has been discharged much prior to meeting of P.S.B-I.
11. As regards contention of appellant's learned counsel that there was no tampering in ACRs for the years , 1998 to 2001 for the purpose of enhancement from lower side to higher side or to increase the quantification score, it may be stated that the competent authority 7.e. The Chief Minister, Sindh has already entrusted the matter to theChairman, Chief Minister's Inspection in process, therefore all the inquiry is not completed, Dp further action is called.12. The plea that earlier one Mr. Bahauddin Sirhindi was promoted to B-20 whose overall grade was just 64.82 i.e. Muchless than the required marks of 70, it is, suffice to say that bad prudence by no Stretch of imagination can be allowed to prevail.13. For what has been discussed above, the appeal being devoid of merits and not maintainable is hereby dismissed, leaving the parties to bear their own costs.14. Announced in open Court. 'Given under.Our hands and seal of the Tribunal, this 18th day of June, 2007.