' QAZI MUHAMMAD HUSSAIN SIDDIQUI (MEMBER).- The appellant had joined the respondent- Department ITD DTC GHQ, Rawalpindi, as Sup-C (BPS-6). He was promoted as Assistant Foreman (BPS-14) on 9-7-1999 and posted in the Inspectorate of Army Stores and Clothing Karachi-12. Vide GHQ letter dated 20-11-2000 he came to know that he was deprived of his legitimate right of Selection Grade BPS-16. He, therefore, submitted an application, dated 15-1-2001 to the respondents consider his case for the Selection Grade BPS-16, but vide A letter dated, 9-5-2001 of the GHQ, he was informed that the Departmental Promotion Committee had declared him unfit for Selection Grade. He made a departmental appeal to the competent authority on 9-6-2001, but it was rejected vide GHQ letter, dated 16-10-2001 on the ground that it was time-barred. His subsequent reminders were also turned down; hence, he filed this appeal before this Tribunal on 26-3-2002, under section 4 of the Service Tribunals Act of 1973, praying that the respondent No,1 be ordered that the Selection Grade be awarded to him from 30-5-1999 like his 19 junior colleagues (listed in the memo. Of appeal but not made, a party), who had been granted Selection Grades ignoring him.
2. The appeal was dismissed in limine for being time-barred vide judgment, dated 10-8-2002. The appellant challenged such judgment before the Honourable Supreme Court in Civil Petition No,992-K of 2004. The Supreme Court was pleased to set aside judgment and remanded the appeal to this Tribunal for decision afresh on merits within a month, vide order, dated 19-4-2004.
The parties were directed to appear before this Tribunal on 30-4-2004. On that date the Advocate for the respondents appeared along with D.R. Mr. Muqeet, but the appellant failed to appear, as such, ,urgent notice was issued to him on which he appeared on 7-5-2004 and orally explained the reason for his not attending the Tribunal on 30-4-2004.
3. The respondent then filed their written comments.
4. The appellant is unrepresented, He has argued his appeal himself. His contention is that he is senior to those who have been granted Selection Grade BPS-16 and as per departmental rules, he is qualified for Selection Grade, but he has been ignored for the reasons not known to him and no reasons have been conveyed to him for declaring him unfit for Selection Grade which is to be determined on senioritycum-fitness, and, in that connection, it was the bounden duty of the Departmental Promotion Committee to examine Cie merits of the case of every candidate. He stated that if he was to be ignored there should have been some reason for the same but he did not know what was the basis on which he was declared unfit ignoring his seniority and was not granted the Selection Grade vis-a-vis his 19 juniors who were involved in disciplinary cases for accepting of substandard stores and who were enjoying the financial benefits, as against him who had unblemished record of service. In support of his arguments, the appellant relied on the following authorities:--
(1) 1992 PLC (C.S.) 1374, (2) 1998 PLC (C.S.) 1457, (3) 1999 PLC (C.S.) 1368, (4) PLD 1990 SC 612 and (5)
5. The learned counsel for the respondents has argued that as per section 4(1)(b) of the Service Tribunals Act of 1973 no appeal shall lie to a Tribunal against an other or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade. In support of his contention, the learned counsel for the respondents, relied on a Full Bench judgment, dated 12-11-2001 of this Tribunal passed in Appeal No,106(R)(C.S.) of 2001; that grant of Selection Grade is not a legitimate right of an individual; that the appellant was promoted from Chargeman (BPS-12) to Assistant Foreman (BPS-14) by a Departmental Promotion Committee other than the one declared him unfit for the Selection Grade, which is equal to a gazefted appointment as against non-gazetted post of Assistant Foreman (BPS-14). According to the learned counsel, the Departmental Promotion Committee which refused the Selection Grade to the appellant consisted of the following persons:- -
(1) Chairman DGITD
(2) Member AAG, PA Dte DDCP, CP Det ' The learned counsel stated that after going through the entire service record of the appellant and considering it thoroughly, the said Departmental Promotion Committee declared him unfit for grant of Selection Grade (BPS-16), whereas, juniors to the appellant were granted Selection Grade (BPS-16) on the recommendation and fitness of the said juniors by the said Departmental Promotion Committee. So far as the communication of the reasons or any circumstances to the appellant for declaring him unfit for Selection Grade is concerned, he stated that the appellant was duly informed that he was declared unfit by the Departmental Promotion Committee, and there did not exist any provision to communicate the reasons for declaring a person fit or unfit for prom tion to next higher grade/Selection Grade. He argued that seniority alone was not the determining factor for judging suitability or fitness of a civil servant for discharging functions attaching to a post in higher grade. Citing 1986 SCMR 64 he stated that an outside forum in the very nature of things could not sit in appeal and review judgment of competent authority regarding fitness for promotion of a civil servant.
6. We have carefully considered the above arguments of both sides and have gone through the record of the case and the authorities, cited by them.
7. The important question for determination in this appeal is:--
(i) Whether the appeal is not maintainable for want of jurisdiction to deal with a case of fitness or otherwise of a person to be appointed to or to hold particular post or to promoted to a higher grade.
' For the reasons to follow, our findings on the above point is as under:--
8. As per second proviso to Rule 4(1) of the Civil Servants (Appeal) Rules, 1977, no appeal or review shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade.
9. Sub-para. (b) of section 4(1) of the Service Tribunals Act of 1973 reiterates the above mentioned provision, but with a slight difference. It is reproduced as under:- "(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade; (and)"
' The simple reading of the above provisions of law shows that there is no departmental appeal concerning the question of fitness of a person to be appointed to or hold a particular post or to be promoted to the higher grade. So far as the provisions of Service Tribunals Act of 1973 is concerned, the word "fitness or otherwise" have been used in clause (b) of the proviso to section (4). Otherwise would mean unfitness also in any case where the question of fitness or unfitness of a person is concerned no appeal shall lie to a Tribunal against an order or decision of a departmental authority. In the instant case, the appellant has been refused Selection Grade, as he was declared unfit for it after considering his case by the Departmental Promotion Committee. As such, the present appeal is not competent and maintainable due to bar of jurisdiction. In this view of the matter, we are supported by the Full Bench judgment of this Tribunal in almost exactly identical case against the same respondents, decided in Appeal No,106(R)(C.S.) of 2001 on 12-11-2001. In that case the respondents therein (Chief of General Staff, GS Branch GHQ Rawalpindi) had refused the Selection Grade BPS-16 to the appellant as against his three juniors, the respondents Nos.3 to 5 in that case. It was held that irrespective of appellant's contention the appeal was hit by the provisions of section 4(1)
(b) of the Service Tribunals Act of 1973 and the appeal was accordingly dismissed for want of jurisdiction. For aught we know, this judgment has not been challenged in appeal. It still holds the field and we are, therefore, bound by it.
10. We may further quote some of the relevant authorities in support of the legal position that the refusal to grant the appellant Selection Grade BPS-16 on the unfitness of the appellant bars the jurisdiction of this Tribunal. It has been held in 1986 SCMR 64 as under:-- ".... Criteria for making promotion to higher grade implies a decision by competent authority according to individual judgment of such authority---Seniority alone is not determining factor for judging suitability or fitness of civil servant for discharging functions attaching to a post in higher grade---An outside forum in very nature of things cannot sit in appeal and review judgment of competent authority regarding fitness for promotion of a civil servant---Appeal before Service Tribunal praying order for promotion, held not competent."
' In 1991 SCMR 1129 it has been held:-- "... Fitness introduces an element of subjective valuation on the basis of objective criteria where substitution for an opinion of the competent authority is not possible by that of a Tribunal or a Court. It is in this background that the question of fitness or suitability for promotion has always been considered to be exclusively within the jurisdiction of the competent authority not shared by the Court or Tribunal exercising supervisory jurisdiction in respect of eligibility and qualification."
' In PLD 1990 SC 612 it was held:-- ... We may observe that the Tribunal cannot decide the question of fitness referred to in the above provision of the Service Tribunals Act, but it has jurisdiction, to examine the question, whether the Departmental Promotion Committee was constituted in accordance with the relevant rules and whether the cases of the civil servants concerned were properly considered in terms thereof."
11. In view of the above exposition of the legal position in the foregoing paragraphs and the authorities, cited above, our conclusion is that the appeal of appellant Muhammad Sarwar Shakir is not competent for want of jurisdiction.
12. The grievance of the appellant was that being senior to those, who have been granted Selection Grade, he was also entitled to it, but he was ignored and declared unfit for it without assigning any reason.
13. The question is whether in spite of bar of jurisdiction, the Service Tribunal is competent to examine the grievance of the appellant which necessitates the sitting over judgment of the competent authority having jurisdiction in the matter and calls for judicial scrutiny of the fitness or unfitness of a person, based on objective material before the concerned Department Promotion Committee. For scrutinizing his case, the appellant has cited two authorities viz. PLD 1990 SC 712 and 1999 PLC (C.S.) 1368.
14. The first authority mentioned above, relevant extract whereof has been reproduced in para.10 (supra), is not applicable to the case of the appellant for the reason that the case therein objection was taken against the composition of the Departmental Promotion Committee. No such objection is taken in the instant appeal. In the second authority, reiterating the following wordings of the authority reported in 1999 SCMR 1129:--- "On the other hand, fitness of a person to be appointed or promoted to a particular post or grade involves a degree of subjective evaluation on the basis of objective criteria and, as a rule, an opinion so formed, is not open to judicial, scrutiny."
' It was added as under:-- ' However, even in the matters involving fitness to be appointed or promoted to a particular post or grade there has to be necessary material on the basis of which an opinion, one way or the other, is formed. If, therefore, either all the necessary material is not put up before the Authority deliberating upon the matter of appointment or promotion on obviously misleading, material is pint up or manifest acts of commission or of commission of omission as regards vital date, are involved the subjective exercise may not irretrievably he conditioned by objective factors, wanting in due process. Such aspects, probably, would be more akin to considerations of eligibility than of fitness and all things being equal, be open for scrutiny before a legal forum..."
15. In view of the above authority, if the appellant's case is subjected to judicial scrutiny, it will be seen that his assertions do not hold water for the reasons mentioned below:--
16. First of all the appellant's assertion that he was ignored is not correct. His case was duly considered on the basis of his service record by a Departmental Promotion Committee duly constituted comprising senior and responsible officers of the department against whom the appellant had not alleged any mala fide or interest adverse to him. He has not challenged the composition of the Departmental Promotion Committee. On (sic) granted Selection Grade by the Departmental Promotion Committee but has not made them a party in the case. Except his claim of seniority, which does not provide him a vested interest, he has not pointed out any other discrepancy in the proceedings of the Departmental Promotion Committee calling for judicial scrutiny except that the reason for his unfitness was not communicated to him. Since the unfitness or fitness is on their opinion (although based on certain other material) it would not, we agree with the learned counsel for the respondents, call for communicating any reasons to the appellant. In our opinion if judicial scrutiny is allowed on petty, false and implausible objections/pleas then there will be no end to litigation and the very purpose of putting a bar to the jurisdiction of the Service Tribunal in connection with the question of fitness or unfitness, would be frustrated.
17. In the circumstance and for the reasons, mentioned above, we hold that the appeal is not competent and maintainable for bar of jurisdiction and otherwise. There is no merit in the appeal. It is dismissed accordingly with no order as to costs.
18. Parties be informed accordingly.