The appellant Abdus Sattar was promoted to the post of Additional District Judge by Notification dated 24-5-1980. However, two batches of Senior Civil Judges one comprising respondents Nos. 4 to 7 and another comprising rest of the private respondents who were all junior to him were promoted before him in 1978 and 1979 respectively. On both the occasions the appellant claims to have made representations against his supersesion but with no result. As his seniority vis-a-vis that of the above respondents in the cadre of Additional District Judges has been adversely affected, he has come in. This appeal. The appellant has made the following prayer for: "(a) A declaration that the appellant is senior to respondents Nos.4 to 16.
(b) A direction to respondents Nos.1 to 3 that the appellant may be assigned his due seniority with retrospective effect.
(c) Cost of the case.
(d) Any other appropriate order."
2. After hearing the arguments of the learned counsel for the parties the appeal was dismissed by short order dated 24-7-1986 for reasons to be recorded later on. Following are the reasons in support of the said short order.
3. It may be stated at the outset that the appellant has neither filed seniority list of Civil Judges nor that of Additional District Judges to show that although, he was senior to respondents Nos.4 to 16 in the cadre of Senior Civil Judges, yet he has been placed below them in the seniority list of Additional District Judges. However, it has not been denied in the written statement that the above respondents were junior to the appellant in the cadre of Senior Civil Judges and that after their promotion as Additional District Judges they rank senior to the appellant in the higher cadre. As provided in rule 10 of Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 (hereinafter referred to as the Seniority Rules) seniority of a Civil Servant is reckoned from the date of his regular appointment. Since respondents Nos.4 to 6 were admittedly promoted as Additional District Judges earlier than the promotion of the appellant in the capacity, they would according to above rule rank senior to him in the cadre of Additional District Judges. However, rule 13 of Seniority Rules which is in the nature of exception to rule 10 referred to above reads as under:- "A civil servant, who is not promoted on his turn ont he ground that;
(i) his seniority is under dispute or is not determined; or
(ii) he is on deputation, training or leave; or (i.e) disciplinary proceedings are pending against him; or
(iv) he is not considered for promotion for any reason other than his unfitness for promotion; shall on subsequent promotion, subject to any order made by the competent authority in this behalf for the purpose of inter se seniority in the higher grade, be deemed to have been promoted in the same batch as his juniors.
4. It is clear from the above rule that if promotion is delayed or deferred on any ground other than the around of fitness for promotion the civil servant whose promotion is so, delayed or deferred would not suffer in seniority in the higher grade. On his promotion subsequent to the promotion of his juniors he would be deemed to have been promoted in a batch, with his juniors. That is to say in such a case, clause (b) of rule 11 of the Seniority Rules will come into play and the civil servant promoted subsequently to the promotion of his juniors would retain his inter se seniority of lower grade even in the higher grade. Therefore, the short question that arises for determination in this case is on what ground the promotion of the appellant was delayed. A careful perusal of the written statement filed on behalf of the official respondents reveals that on both the occasions when his junior colleagues were promoted he was not considered fit for the promotion. In para. 3 of the written statement, it is stated that as per decision of the Provincial Selection Board dated 3-3- 1978, the appellant was recommended for promotion as Additional District and Session Judge but subsequently the said recommendation of the Board was recalled and the Government was requested to delete his name from the list of recommendees for the promotion. Again in para. 7 of the written statement it is stated, "He was considered for promotion by the Provincial Selection Board in its meeting on 31-7-1979 but he was found not fit due to his service record".
5. It may be observed that the Provincial Selection Board in respect of the Judicial Officers consists of the Chief Justice and three senior Judges of the High Court. Obviously, the said Board did not find the appellant fit for promotion both times when his juniors were promoted to higher posts. This finds support even from the appellant's own memo. Of appeal. In para. 3 of the memo. He admits that his supersesion in 1978 was on the basis of ACR, although he was unaware as to why he was superseded. Even as regards 1979 his own admission is that he was not considered for unknown reasons. Thus, it is not the plea of the appellant that his promotion was deferred on account of any of the reasons given in clauses (i) to (iv) of Rules 13 referred to above. Consequently, the said rule is not attracted in his case. Since he was ignored for promotion to higher grade on account of his unfitness for the promotion, he cannot claim the benefit of above rule and be held as senior to the private respondents in the cadre of Additional District Judges. As pointed out earlier his seniority in that cadre will be reckoned from the date of his promotion to that cadre.
6. It was, however, contended by the learned counsel for the appellant that since the appellant was ultimately promoted in 1980 the presumption would be that whatever stood in his way to promotion was washed of and, therefore, he would retain the inter se seniority to lower grade even in the cadre of Additional District Judges. In support of his contention, he relied upon several authorities. The first case in this connection is of Rauf Ahmad v. Secretary to Government of Punjab, Communication and Works Department 1984 PLC (C.S.) 287 Punjab Service Tribunal. In this case it was held "It is well-settled principle of law that if a person is not considered fit for promotion because of certain eventualities like a criminal case or departmental enquiry or adverse remarks and if he is acquitted, exonerated and the adverse entries are expunged, he would be treated as if he has never been convicted or held guilty or recipient of such adverse entries and he would be considered to be a civil servant with unblemished record of service."
7. The above, case is not helpful to the appellant for the simple reason that there is no indication in the present case that at the time of promotion of appellants juniors, he was not considered for promotion because any criminal case or departmental inquiry was pending against him or any adverse report was given to him. Similarly, the cases reported as Nawazish Hussain v. Director- General, Pakistan P. W . D , Islamabad 1984 PLC (C.S.) 1610 Federal Service Tribunal and Inspector- General of Police v. Ashfaq Ahmad and another 1983 SCM R 34 on which the appellant's learned counsel has placed reliance are also not applicable as the facts of the instant case are different from those of the above reported cases.
8. It was further submitted by the learned counsel for the appellant that stand taken by the authorities in their written statement inasmuch as that the appellant was not fit for promotion is not borne out by any tangible material, as the appellant was never informed of any such material.
Despite this argument, the learned counsel for the appellant frankly conceded that the Tribunal has no power to call upon the relevant authorities to justify their plea that the appellant was not fit for promotion because to do so would amount to holding an inquiry as to fitness or otherwise of the appellant for the purpose of promotion. In this connection reference may be made to proviso
(b) to section 4 of the Sind Service Tribunals Act, 1973 which reads as under:- "no appeal shall lie to a Tribunal against an order or a 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 post or grade."
9. The above proviso leaves no doubt that Tribunal has no jurisdiction to go into fitness or otherwise of a civil servant for promotion.
10. As has been pointed out above, the appellant was found unfit for promotion by the Provincial Selection Board on both the occasions when his juniors were promoted. Even the relief sought by the appellant is assignment of proper seniority to him in the cadre of Additional District Judges. It is not the case of the appellant that any of the private respondents who were junior to him in the cadre of Senior Civil Judges has been promoted to the cadre of Additional District Judges after his promotion. Furthermore, his case is not covered by Rule 13 of the seniority rules.
11. For above reasons, the appeal is without any substance and, therefore, it was dismissed as stated above.
A.E.185/Lb/S