1. MUNAWAR ALI KHAN (CHAIRMAN).--In this appeal the appellant, Muhammad Aqeel has impugned the order of Member, Board of Revenue, Sind, dated 27th May, 1980 whereby he was declared surplus from the Settlement Cell of the Board of Revenue, Sind with effect from 1-6-1980.
2. In the same order, the appellant was further advised that after handing over the charge he should report to the S&GAD.
3. After hearing the learned counsel for the appellant, the Government's counsel and the counsel for respondent Chuttan Khan (No.1), the appeal was dismissed with no order as to costs by short order dated 25-2-1987 for reasons to be recorded separately. Following are the reasons in support of the short order.
4. It appears that by order dated 11th March, 1961 issued by Collector and Officer on Special Duty, Central Record Office, Lahore appellant was appointed as Patwari with effect from 1st March, 1961.
5. However, the respondent No.1, Chuttan Khan's appointment as Patwari was made about two months later i.e. On 12-5-1961. Thus the appellant claimed to be senior to the aforesaid respondent in the cadre of Patwari. In 1964 the above two Patwaris alongwith a number of other Patwaris were transferred to the Districts mentioned against their names vide order No.7560-64/5548-E-IV, dated 3rd October, 1964 issued by Member, Board of Revenue, West Pakistan. According to this order the appellant was posted in Hyderabad District whereas respondent Chuttan Khan was sent to Mirpur Khas District. However, by the impugned order which was passed in 1980 the appellant was declared as surplus Patwari. The respondent Chuttan Khan had, by then, been promoted as Supervising Tapedar and therefore continued in service. The record shows that after his being declared as Surplus from the Settlement Cell of the Board of Revenue Sind, the appellant was absorbed as Tapedar in the office of Revenue Officer, Kotri Barrage, Hyderabad, as per order of the Chief Secretary Government of Sind, dated G5-9-1980. Somehow he did not join the said post, within the time specified in the said order and therefore his service stood terminated. Subsequently he made representation for alternate job offered to him as Tapedar, in the office of the Revenue Officer, Kotri Barrage but the same was rejected as he had failed to avail it within the specified period. He then filed departmental appeal. It is in this factual background that the present appeal was filed.
6. We have given our best thought to the contentions raised on behalf of the appellant and have also perused the, relevant record carefully. First of all it would be pertinent to refer to the order by which the appellant was appointed as Patwari. It reads as under:- "Office Order Mr. Muhammad Aqil S/o Muhammad Khalil is hereby appointed as Patwari, in the grade of Rs.35-1-95/2-55 Plus usual allowances admissible under the rules with effect from Ist March, 1961 (FN).
(2) His services are purely temporary and liable to be terminated with or without notice, without assigning any reason. In case he wishes to resign, he should give one month's notice in advance-- -------(illegible) ------------...In lieu thereof.
7. Dated Lahore the, 11th March, 1961.Sd/- Aslam Hyat COLLECTOR & OFFICER ON SPECIAL DUTY, CENTRAL RECORD OFFICE, LAHORE."
8. It is clear from the above order that appointment of the appellant was purely temporary and was liable to be terminated even without notice and without assigning any reason. We have not been shown any document by which his appointment was made permanent or that he was confirmed in the post. We are of the view that in absence of such material the Competent authority possessed absolute discretion to dispense with the services of the appellant without giving him any notice and without assigning any reason. Therefore, if his services had been terminated in terms of his appointment order, no fault could be found with the action of the Competent authority.
9. As for respondent Chuttan Khan's, continuation in service in preference to appellant it may be pointed out that even if we accept the argument advanced on behalf of the appellant that the appellant was senior to respondent Chuttan Khan in the cadre of Patwaris as the latter was appointed more than two month's after his appointment. Yet if cannot be overlooked that when the impugned order was passed declaring the appellant as surplus Patwari, the respondent Chuttan Khan was holding the higher post of Supervising Tapedar. In other words the said Chuttan Khan had already been promoted as Supervising Tapedar and consequently had left cadre of Patwaris.
10. Therefore his case was not comparable with that of the appellant for the purpose of declaring surplus Patwaris. Although Chuttan Khan was junior to the appellant in the cadre of Tapedar, yet their inter se seniority in that cadre was rendered meaningless subsequent to Chuttan Khan's. Promotion to higher post of Supervising Tapedar. By the time the impugned order was passed both the appellant and Chuttan Khan belonged to different cadres the former was only Tapedar whereas the latter was Supervising Tapedar.
11. It was further argued on behalf of the appellant that Chuttan Khan was promoted as Supervising Tapedar on account of political considerations. It may or may not be so. However, it is within the discretion of the Competent authority to determine the fitness of al civil servant for promotion. The Service Tribunal does not possess any power to go into the question of the fitness. Accordingly it does lie within the jurisdiction of the Tribunal to decide if Chuttan Khan, was fit for promotion as Supervising Tapedar. In this connection if any legal support is needed, reference may be made to clause (b) of Proviso to section 4 of the Sind Service Tribunal Act 1973.
12. From above discussion it is clear that when the impugned order was passed declaring the appellant as surplus Patwari, the fact remained the respondent Chuttan Khan was working in a higher post of Supervising Tapedar. Therefore, the contention raised by the learned counsel for the appellant that Chuttan Khan being junior, to appellant as Patwari should have been declared surplus in place of the appellant, is devoid of any force. Accordingly the appeal filed by the appellant was without any justification and as such as stated above it was dismissed with no order as to costs.
13. A.E./119/Sr.S Appeal dismissed.