' SYED ALLY MADAD SHAH (CHAIRMAN).--Appellant Dr. (Miss) Kamar Ansari, Head of Research Group in the Defence Science and Technology Organisation, Karachi Laboratories, has preferred this appeal for her promotion as the Director of Laboratories (BPS-20), DESTO Labs.
2. The case of the appellant, briefly stated, is that she had put in twenty years meritorious service in BPS-19 in the DESTO Labs and she had remained Head of Research Group (BPS-19) at Karachi Laboratories for nearly two years and she occupied fourth position in the seniority list amongst BPS-19 officers serving with the DESTO Labs. According to her, the senior most amongst them namely Dr. Muhammad Tahir had proceeded on long leave, and No,2 officer Dr. A.H. Bhatti had already been promoted as Director of Laboratories, Karachi, and the officer at third position Dr. A.M.
Afaf.Had retired from service and, therefore, she had become the senior most officer in BPS-19 officers in the DESTO. She claims that on retirement of Dr. A.M. Afaf, she should have been promoted to that selection post but instead Dr. M.Z. Sheikh, who is the respondent No,5, although junior to her, was promoted as a Director of Laboratories, DESTO, Chaklala Laboratories, vide impugned Order No,1067/1/A/DESTO/Adm-I, dated 2nd January, 1986. She made departmental appeal on 13-1-1986 against her supersession. Awaiting decision on her departmental appeal for 90 days and failing to get orders, she preferred this appeal on 7-5-1986 with the following prayer:-- "In view of the submissions made hereinabove, it is respectfully prayed that the record and proceedings promoting Dr. M.Z. Shaikh as Director of Laboratories, Chaklala be called for and also all the Annual Confidential Reports (for the entire service period) of the appellant and upon considering the merits of the case, set aside the order dated 2-1-86 promoting the said Dr. M.Z.Shaikh and be pleased to declare that the appellant be treated as having been promoted and/or appointed as Director of Laboratories, with effect from 22-12-1985 and that the appellant be ordered to be given all benefits of service such as emoluments, seniority etc. Of the post in question. Further in the event of retirement the appellant be held to have retired from the said post of Director of Laboratories, B-20, with full back benefits of service."
3. The respondents have resisted the appeal. Written objections have been filed by the respondents 1 to 4, who are the Prime Minister of Pakistan; the Secretary, Establishment Division; the Secretary, Defence Production Division and the Chief Scientist and Scientific Adviser, Defence Science and Technology Organisation, Ministry of Defence; while the respondent No,5, namely Dr. M.Z. Shaikh, has filed written objections separately. On behalf of the Federal Government, three preliminary objections have been advanced that the appeal is not maintainable in law and on facts and the appellant has no locus standi to have filed the appeal and also the appeal is hit by proviso (b) to subsection (1) of section 4 of the Service Tribunals Act, 1973. On facts, it has been stated that the appellant and some of her juniors, including the respondent No,5 were considered for promotion to the post of Director Explosives, a selection post, but she was not approved for promotion, as her record was not up to the requisite standard, and the respondent No,5, Dr. M.Z.
Shaikh, was found superior to her in merit and was approved for promotion and was accordingly promoted. The respondent No, 5 also has taken preliminary objection to the maintainability of the appeal in the light of the provisions of proviso to section 22 of the Civil Servants Act, 1973 and proviso (b) to section 4(1) of the Service Tribunals Act, 1973 to the effect that no representation appeal lies on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to higher post or grade. On facts, he has stated that the post of the Director of Explosives he was promoted to, was specially created under Government of Pakistan letter No, 3/13/80/DP-7, dated 19-4-1984 and he was the pioneer of research in the field of DESTO and had rendered meritorious service and he was promoted to BPS-20 on considering his comparative merit at higher degree.
4. The main grounds in the memo. Of appeal and reiterated at the hearing by the learned counsel for the appellant, are that the appellant was undisputedly senior to the respondent No,5 in the seniority list and she possessed all the requisite qualifications for promotion to the post of Director (BPS-20) and there was no ground for superseding her except certain adverse remarks recorded in her ACR for the year 1984 which she had impugned before this Tribunal in Appeal No,151 (K)/85 and she could not be denied promotion. It was also alleged that the appellant was not considered for promotion at all. Reliance was placed on a decision of the High Court of Sindh in Constitutional Petition No,693 of 1978.
5. On the other hand, the learned counsel for the Federal Government contended that the appellant was considered alongwith the respondent No,5 for promotion to the post of Director (B- 20) but her quantification evaluation was lower than that of the respondent No,5 and she had also adverse report to her discredit and the nature of the post also was taken into consideration. He also reiterated the legal objections that no representation/appeal lay for claiming promotion in view of the provisions contained in section 22 of the Civil Servants Act, 1973, and subsection (2) of section 4 of the Service Tribunals Act, 1973 and also rule 4 of the Civil Servants (Appeal) Rules, 1977.
He placed reliance on the decision of the Supreme Court reported in 1986 SCMR at page 64.
6. There is no dispute that the appellant was senior to the respondent No,5 in the seniority list of BPS-19 officers. The question of their promotion to the post of Director (BPS-20) was considered on comparative merit as it is a selection post. The Selection Board made the evaluation of their merit and found the respondent No,5 above the appellant on merit. The department has placed on record extract of the minutes of the meeting of the Central Selection Board-II held on 10-9-1985.
The extract reads as under:- "Item No, VI: PROMOTION TO THE POST OF DIRECTOR (EXPLOSIVE) IN PAY SCALE-20 IN DESTO LABORATORIES: ' The Board considered the names of the officers on the panel submitted by the Department in order of seniority.
(1) Dr. Muhammad Tahir: The Board was informed that this officer would superannuate on 3-10- 1985. His case was therefore not considered.
(2) Dr. (Miss) Kamar Ansari: Her score in Overall Assessment (67 marks) and Quality & Output of Work (65 marks) fell short of the requisite standard (70 marks). Since 1965 the officer had been graded as Very Good in 4, Good in 13 and Average in 3 reports including her latest report for the year 1984 wherein she had been considered as 'not yet fit for promotion'. She had earned average entries in Part II of her otherwise Very Good/Good reports for the following years:- {{TABLE}} Year No, of average entries.
1967 2 including Cooperation & Tact.
1970 2 -do- 1972 4 -do- 1973 1 Cooperation & Tact.
1975 6 including Integrity (Intellectual).
1978 3 including Initiative & Drive. {{TABLE}} Year No, of average entries.
1979 8 including initiative & Drive, Quality & Output of Work and Cooperation & Tact.
1980 4 including Initiative & Drive.
1982 9 including Emotional Stability and integrity (General).
1983 11 including Emotional Stability and Initiative & Drive.
' In view of her mixed record and her latest average report, the Board did not clear the officer for promotion.
(3) Dr. M.Z. Sheikh: His score in Overall Assessment (89 marks) and Quality & Output of Work (76 marks) was above the requisite standard. Since 1967 the officer had been graded as Very Good in 14 and Good in 5 reports. The entries in Part II of these reports were generally consistent with the Overall Assessm ent. The Departmental Representative spoke highly of the officer. In view of his very good record, the Board cleared the officer for promotion.
' The Board also examined the record of the remaining officers on the panel but it did not come up to the standard of the senior officer.
It would appear that the quantification evaluation of the calibre of the respondent No,5 was much above that of the appellant. The only ground worth consideration in favour of the appellant is that one of the grounds taken into consideration for her supersession was an adverse entry in her ACR for the year 1984, which she had impugned in an appeal before this Tribunal but that appeal was still pending. It would appear from the over-all evaluation reflected in the minutes of the meeting of the Central Selection Board-II that even if that stigma in her career were excluded, even then she could not match the respondent No,5 in the comparative merit. Thus, the appellant has hardly any case on merit.
7. The appellant cannot maintain the appeal even on legal platform. It is laid down in proviso to subsection (2) of section 22 of the Civil Servants Act, 1973 that no representation 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. It is also laid down in second proviso to sub-rule (1) of Rule 4 of the Civil Servants (Appeal) Rules, 1977 that 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 higher post or grade. There is also bar under proviso (b) to subsection (1) of section 4 of the Service Tribunals Act, 1973 to an appeal before the Tribunal against an order or decision of a departmental authority determining fitness or otherwise of a person to be appointed to or to hold a particular post or to be promoted to a higher grade. The decision of the High Court of Sindh in Constitutional Petition No, 693/1978 was on the basis of a statement before the Court that the petitioner therein Syed Afzal Ahmad Hydri employed in the Defence Science & Technology Organisation, Ministry of Defence, was entitled to be considered for promotion on 1st June, 1977, irrespective of the consideration of the related discipline, is not relevant to the facts of this case. Accordingly, the appeal is not maintainable under law.
8. As discussed above, the appeal is not only without merit but is also not maintainable under law, and it is dismissed as such, with no order as to costs.