1. MUNAWAR ALI KHAN (CHAIRMAN).--This is an appeal filed by Dr.Syed Inam-ur-Rehman's, calling in question the promotions of Private respondents mentioned at S.No.4 to S.No.13 in the memo of appeal, by Notification No.SOI(H)2-679/81(Part.II) dated 7th October, 1985.
2. The case of the appellant is that he has 28 years of service in the Health Department and he is presently holding the post of B-18 to which he was promoted in 1966. His grievance is that although he is senior to all the aforementioned respondents he has been deliberately superseded in violation of terms and conditions of service. He has stated that the record of his A . C . Rs has not been maintained in accordance with Government's instructions. According to him, he was intimated by memo. Dated 22-3-1983 that his A.C.Rs. For the years 1971, 1974, 1975 and 1977 were not available in the Directorate of Health and by another letter dated 13-9-1984 he came to know that his ACRs for years 1982 and 1983 were also missing. He goes further to state that even the adverse remarks for the years 1978, 1979 and 1980 were conveyed to him by a letter dated 22nd November, 1981 and adverse remarks for the years 1973 and 1976 were communicated to him by letter dated 5th March, 1983, though they were to be communicated within one month of their counter-signing.
3. The appellant's further complaint is that he was not considered for promotion as per promotion policy contained in the D.0.10(3)/84-CP-1, dated 30-4-1984 issued by the Cabinate Secretariat (Establishment Division), Government of Pakistan, and adopted by the Government of Sind.
4. Elaborating his complaint he has stated that his appeal in respect of the adverse remarks for the years 1973 and 1976 was still pending and therefore the Departmental Promotion Committee could not judge his service on the basis of ACRs. His further objection is that unless the Departmental Promotion Committee had before them the full data about the officers under consideration for promotion, it was not competent to hold deliberation about their promotions. The appellant has therefore prayed that on the grounds stated in the memo of appeal, the Notification dated 7th October, 1985 relating to promotions of the private respondents be set aside and appropriate direction be issued to respondents No.1 to 3 that the appellant be considered for promotion to higher post.
5. We heard the arguments of the learned counsel for the appellant and the reply given by the learned A.A.-G. To the said arguments. We also glanced through the relevant documents available on record.
6. It appears from the Proviso (b) to Section 4 of the Sind Service Tribunals Act, 1973 that the jurisdiction of this Tribunal is barred in respect of an order or decision of the Departmental Authority determining the fitness or other were of a person, to be promoted to higher post or grade.
7. In other words this Tribunal is not competent to take a decision if the civil servant was fit for promotion. Nevertheless this Tribunal has power to intervene if a civil servant was not considered for promotion even though he was eligible for the same.
8. We have carefully perused the memo of appeal filed by the appellant. No where throughout the said memo, the appellant has mentioned that he was not considered for promotion when the case of promotions of private respondents was being processed. In the opening para of the appeal it is stated that the appellant has been supersedes: by the aforesaid respondents who were junior to him. By this, the appellant means to say that he was not given promotion, although his juniors were promoted. In absence of any authentic evidence to the effect that the appellant was not considered for promotion to a higher post at the relevant time, the promotion of his juniors would raise a presumption that he was denied promotion because he was not found fit for the same. The appellant has not produced any such evidence to rebut the above presumption.
9. As pointed out earlier, the appellant has not taken a definite plea in the memo of appeal that he was not considered for promotion when his juniors were promoted. On the contrary a close reading of the memo of appeal would reveal that the appellant was also considered for promotion which was however withheld on account of adverse ACRs against him. This is precisely the stand taken by the official respondents in their written statement (vide para 5 of the written statement). The respondents' further plea is that the appellant was ignored for promotion only temporarily on account of the adverse ACRs. The appellant's own admission as given in pare-2 of the memo of appeal is that adverse remarks for the years 1973, 1976, 1978, 1979 and 1980 were communicated to him by two letters. The contention of the learned counsel for the appellant however was that as mentioned in the "Instructions Regarding Confidential Remarks", a confidential report containing adverse remarks could not be taken into consideration until the said remarks had been communicated to the officer concerned and decision was taken on his representation, if any. The learned counsel expressed the view that in case of the appellant, the above instructions have been violated.
10. As for communication of the ACRs, it is the appellant's own admission that the adverse remarks for the above years were communicated to him by two letters. Reference to para (a) of the "Grounds" in the memo of appeal would however show that the appellant had made representation only against the ACRs for years 1973 and 1976 and the decision thereon was still pending. Assuming that his appeal was still pending in respect of the said ACRs, he is conspicuously silent as regards the adverse remarks for other three years. He has not stated anywhere in the memo of appeal that he had filed representation for expunction of the adverse remarks for years 1978, 1979 and 1980. No doubt they were communicated to him late. Had he filed representation against the said remarks he could have advanced the late communication of the remarks as one of the grounds for their expunction and may be that he even had succeeded in getting the said adverse remarks expunged on that ground. Therefore we see no force in the contention that any violation of Government's instructions about ACR had taken place. However, the fact remained that there were adverse entries against the appellant for a number of years. Consequently he could not expect the competent Authority to completely ignore the cumulative effect produced by such entries only on the ground of technicalities. In these circumstances the appellant cannot claim his record to be clean. It was to his good luck that ACRs for several other years were missing. Keeping the overall position of his service record in view, we may not be surprised that even missing ACRs may turn out to be adverse to the appellant. It was however for the concerned authorities to order thorough probe finding out as to how the said entries had disappeared and who had hand in causing their disappearance.
11. It was further submitted by the learned counsel for the appellant that the appellant's case for promotion was not considered in accordance with Promotion Policy issued by the Federal Government and adopted by Provincial Government of Sind. In this connection he invited our attention to para-3 of Part-III relating to promotion to selection posts, appearing at page-4 of the "Guidelines for Departmental Promotion Committees/ Central Selection Board". The said para reads as under:- "3. For selection posts entries under 'quality and output of work' and 'Integrity' in all the ACRs recorded on the civil servant during his service as an officer will also be quantified in accordance with formula given in the Addendum. These marks shall be a crucial factor in determining comparative merit of officers for promotion to selection posts."
12. It appears from the above para that for selection posts which include, the posts in B-19, the entries in the ACRs of the civil servant concerned are to be quantified in accordance with the formula given in the addendum. Unfortunately the appellant has not provided a copy of the Addendum and as such it is difficult to appreciate the argument of the learned counsel for the appellant. Even otherwise the aforesaid guidelines are for guidance of the competent authorities concerned. This Tribunal is not supposed to undertake a detailed scrutiny in order to find out if the said guidelines were strictly followed by the said authorities. The maximum that the Tribunal has to ensure was that the appellant was considered for promotion to higher posts. We could not go any further to give a verdict if the competent authority while considering the appellant for promotion had exercised the discretion vested in it correctly. Our such decision would tantamount to declaring the Appellant fit or not for the promotion. As stated at the outset, this Tribunal did not possess such jurisdiction.
13. Before coming into force of the present Service Law/Rules, members of civil service enjoyed certain constitutional protections. Even during that period it was repeatedly held by superior courts that the promotion cannot be claimed as a matter of right. In other words it was absolutely within the discretion of the Competent Authority. For the purpose of promotion, posts are classified as selection posts and non-selection posts vide subsection (2) of section 9 of the Sind Civil Servants Act 1973. It would appear from the said subsection that selection post is to be filled purely on the basis of merits. That is to say that seniority would count only when the comparative merit of the candidates under consideration was equal. In the instant case even according to appellant's own admission he was given adverse ACRs for several years. Therefore, it cannot be held that meritwise he was preferable to his juniors. Possibility cannot be altogether ruled out that the appellant was found unfit for promotion not only due to adverse ACR but also for other reasons. Since it was within the discretion of the Competent Authority to determine the suitability and fitness of the appellant for promotion, this Tribunal has no power to interfere with the exercise of such discretion. The only point to be determined by the Tribunal is whether the appellant was considered alongwith the private respondents at serial No.4 to 13 at the time of making the impugned promotions. In view of above discussion the answer to this point is in the affirmative.
14. Having arrived at the above. Conclusion, we find no substance in the appeal which is accordingly dismissed with no order as too costs.
15. A. A./123/Sr.S.