MR. JUSTICE (RTD) MUNAWARALI KHAN (CHAIRMAN).-Aggrieved by the S & GAD's advice contained in its memo dated 16.7.1991 whereby instead of allowing the appellant, Ghulam Rasool Mahar presently holding the post of Superintending Engineer, the benefit of rule 13 of Sind Civil Servants (Probation, Confirmation and Seniority) Rules 1975, (hereinafter referred as the Seniority Rules), he was advised to approach the Sind Service Tribunal, the said appellant has come in this appeal praying for setting aside of the aforementioned order and giving him the desired relief with all consequential benefits.
2. The appellant's case as stated in his memo of appeal is as follows: In the Seniority list of Executive Engineers (Civil) Irrigation Dept, as it stood on 15.1.1986, the appellant was shown senior to all the private respondents, as his name appeared at S. No: 9, whereas the names of the private respondents were mentioned below his name. However in 196 four of the private respondents namely Messrs Shamsuddin Memon,. Abdul Rahim Sidiqui, Ghulam Hussain Shaikh, Jan Mohammad Kazi and Muhammad Punhal Soomro were promoted to the posts of Superintending Engineers, and the appellant's promotion was deferred, due to non-availability of his ACR for 1986.
In the following year of 1987 he. Was once again ignored for promotion, unjustifiably on the ground of uncommunicated adverse remarks. In the said year, his juniors namely the private respondents Messrs Durga Shanker, Ghulam Mustafa Baloch, Thakurdas and Ali Muhammad Baloch were promoted as Superintending Engineers. It was in 1988 that the appellant was ultimately promoted to the said higher post vide order dated 26.5.1988 following the recommendations of the Selection Board No: II. Subsequent to his promotion, he made representation to the Chief Minister/Chief Secretary requesting therein that his seniority be protected in the SEs' cadre under the seniority rules by allowing him promotion from the back date i.e. 1.10.1986 on which his promotion was deferred for the first the. He was intimated vide memo dated 22.11.1990 of the Irrigation and Power Department that his representation was considered and rejected by the Chief Secretary. Appeal was preferred to the Chief Minister from the said rejection order of the Chief Secretary. The appellant was however informed vide S&GAD's letter dated 20.1.1991 that as the appeal Rules 1980 do not provide for making any Review Petition against the Chief Secretary's order the only remedy available to him was to approach the Sind Service Tribunal. Not impressed by the said advice, the appellant repeated the review petition, this the directly addressing it to the Chief Minister. On the basis of the Chief Minister's order i.e. "the matter may please be reviewed and hardship/grievance redressed", the Addl. Chief Secretary, Irrigation Department, conveyed to the appellant the order dated 16.7.1991 which has been called in question in this appeal.
3. We heard Mr. Manzoor Ali Khan for the appellant and Messrs Naimatullah Qureshi and Jhamat Jethan and on behalf of the private respondents excepting respondent Mr. Ghulam Mustafa Baloch who was ex parte. Mr. Habib Rashid appearing for the official respondents adopted the arguments of both the learned counsel for the private respondents. With assistance of the gleamed counsel for the parties, we went through all the relevant record available in the case file as well as brought by the Departmental representative.
4. The relief sought by the appellant through this appeal is that he may be given the benefit of rule 13 of the seniority rules and the impugned order dated 16.7.1991 denying him the said benefit may be set aside. In order to know the circumstances in which the said rule is attracted, it would be convenient to reproduce it as under: "13. A civil servant, who is not promoted on his turn on the ground that-
(i) his seniority is under dispute or is not determined; or
(ii) he is on deputation, training or leave; or
(iii) 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 behavior the purpose Of inter se seniority in the higher grade, be deemed to have been promoted in the same batch as his juniors".
5. As stated in the above rule, the appellant was, of course, not promoted on his turn both in 1986 and 1987. If his promotion was avoided for any of the four reasons listed in the said rule, then on his subsequent promotion the appellant would certainly be entitled to the benefit of the rule and thereby would be deemed to have been promoted in the same batch as his juniors. The appellant's case was obviously covered by clause (iv) hereinabove. Keeping the requirements of this clause in view, it was to be determined if the appellant was not considered for promotion for the reason of unfitness or for any other reason.
6. The learned counsel for the appellant vehemently argued that at no stage the appellant was declared unfit for promotion. According to him the deferment of the appellant's promotion in 1986 was due to un-availability of his ACR for the said year and in the following year his promotion was unjustifiably postponed on the ground of the adverse remarks which were never communicated to him. He further submitted that the appellant had the required quantification to his credit for purpose of promotion, in terms of the promotion policy laid down in the Federal Government's Memo dated 30th April, 1984, which had been subsequently adopted by the Govt, of Sind. His contention however was that the Selection Board concerned was misguided as regards his quantification. The learned counsel for the respondents have rejected the above arguments as being misleading.
7. In course of the arguments made at the bar, it was not disputed that the promotions to the posts in BPS-19 are made on the recommendations of the Selection Board II. It would therefore be necessary to look into the minutes of the relevant meetings of the Board for ascertaining the precise reasons for ignoring the appellant for promotion twice, first in 1986 and second the in 1987.
In this connection our attention was invited to the minutes of the Selection Board's meetings held on 10.10.1986 and 31.8.1987. These minutes were produced as annexures 'A' and 'B' of the written statement filed on behalf of the official respondents. In the annexure 'A' which relates to the meeting of Selection Board, held on 1.10.1986, the Board's decision about the appellant's promotion appears at S. No: (vi) on page 12 of the minutes. It may be reproduced as under: "(iv) Mr. Ghulam Rasool Mahar: It was noted that this officer does not have an entirely satisfactory service record. While he was not considered fit for promotion in his 1983 ACR, his ACR. For 1982 is rather controversial. The Board accordingly decided to defer his case for promotion till after his ACR for 1986 becomes available".
8. The Board's above decision should leave us in no doubt that the appellant was not found fit for promotion at least on the date of the meeting i.e. 1.10.1986. On that date of the meeting the Board had obviously scrutinized his service record including the two ACRs of 1982 and 1983 which both were rather un-favourable to the appellant. In these circumstances, the word "defer" used by the Board in para 2 of their decision indicated that the appellant's fitness for promotion would be reviewed after the ACR for 1986 became available. It did not mean that due scrutiny of his case was postponed until availability of the said ACR, as the learned appellant's counsel wanted us to believe. Such meaning of the word "defer" in the context of the circumstances would be wholly fallacious. In fact by the above date of the meeting the said ACR was not in existence as it had not yet become due. It was to be written after the year 1986 had ended. Since the appellant's service record upto the above date was un-satisfactory Board seemed to think that it might improve with coming up of the ACR for 1986 and thereby brighten the prospects of the appellant's promotion. But if the ACR for any back year, say for example the ACR for the year 1985, or any year thereafter, was required by the Board to be examined for the purpose of deciding about the appellant's promotion, and such ACR was not immediately available to them, in that case the meaning given to the word 'defer' would have been totally different. Because in absence of the ACR for any back year the Board could not be in a position to take definite decision one way or the other and therefore they would have no other course but to defer the consideration of the appellant's case for promotion until the missing ACR became available to them.
9. In the context of the Board's above decision we have also meticulously gone through the details of the promotion policy enunciated by the Federal Government (Establishment Division) in its D.O.
No: 10 (3)/84-CP-I, dated 30th April, 1984. While devising the complex mechanism for calculation of the quantification for the purpose of promotion to posts in BPS-19 and above which are treated as Selection Posts, the said letter of instructions required minimum of 60 marks to be earned for promotion to the said posts. According to the formula of calculation, all ACRs recorded during the service of the civil servant concerned as an officer have to be quantified. This clearly shows that quantification was not confined to any specified number of ACRs for the back years. It appears that when the appellant's case for promotion came up for consideration by the Selection Board in 1986, besides other ACRs, two unfavourable ACRs for the years 1982, and 1983 came to their notice. Since the appellant was not cleared for promotion, the presumption would be that he did not earn the required marks as per quantification carried out by the Selection Board. On the basis of the material before the Board it was for the Board to assess the suitability/fitness of the candidates for promotion. Even if they are mislead to erroneous assessment, the Service Tribunal has no jurisdiction to undertake the detailed scrutiny of the case and record its findings about fitness of the candidates for promotion.
10. Despite the above, we have ourselves checked the appellant's ACRs for 1982 and 1983. In his ACR for 1982, both the reporting authority and the countersigning authority have severely criticised the appellant's behaviour. The reporting authority has noted in the pen picture: "He has become sadist and keeps his subordinates under duress. He may not be entrusted with executive jobs". While agreeing with the above observations, the countersigning authority has gone a step further to say: "It is understood that he has been the guest of mental hospital for quite some the". No doubt the second countersigning authority same to the rescue of the appellant by noting that the remarks attributed to him by First two authority were biased. According to the said authority, there had been some mis-understanding between the appellant and his subordinates as well as his superiors. In any case such favourable comments of the second countersigning authority could not be held to have the effect of totally washing of the reports given to the appellant by the first two authorities who happened to be his immediate bosses, rendering him fit for promotion. On perusal of his ACR for 1983, it would appear that besides having good reports in many respects he has earned average reports particularly in respect of "Emotional stability" and "Adaptability". Moreover, the countersigning authority while disagreeing with the reporting authority has declared him "not fit for promotion". In any case as has been pointed out above the Selection Board alone was competent to take all these factors into consideration and finally decide about appellant's fitness for promotion. The fact that the Board did not clear the appellant for promotion showed that he was not considered fit for promotion. Since his juniors were cleared for promotion during the very same sitting of the Board, they would be held have to superseded the appellant. Accordingly the appellant had no case for claiming benefit of rule 13 of the seniority rules in respect of his juniors who were promoted in consequence of their clearance during the Board's sitting held on 1.10.1986.
11. Coming to the Selection Board's meeting held on 31.8.1987, we have gone through the minutes of the meeting carefully. At S. No: iv, as on page 5 of the minutes, appears the decision of the Selection Board as regards the appellant's prospects for promotion. It reads as under: "(iv) Mr. Ghulam Rasool Mahar He was superseded for promotion to BS-19 due to unsatisfactory quantification of 59.08 in 'over all grading' against the minimum requirement of 60."
12. Presumably the above decision was based on the quantification made by the Selection Board on the material available before them. The appellant's learned counsel challenged the said quantification on the ground that it was based on the un-communicated ACR. In support of his contention he referred us to paras 2 and 3 of 'Brief Facts' of the written statement filed by the AAG.
As stated in paras 3, the foot note given in the working paper submitted to the Selection Board, indicated that the appellant had earned adverse ACR for 1962, though the record was silent as to whether the said ACR was communicated to him or not. It further went on to show that if benefit of doubt was given to the appellant, his quantification would come to 60.38, but if no such benefit was given, then it would be 59.38. Obviously the Board did not show any such leniency to the appellant, by giving him the benefit of doubt and hence as per Board's decision the appellant's juniors superseded him as they were promoted in preference of him. As has been held earlier, the Service Tribunal has no jurisdiction to interfere with the Board's above decision about the appellant's fitness for promotion. Even otherwise it was neither proper nor just for the Tribunal to substitute itself in place of the Board and then take a decision if the benefit of doubt referred to above should or should not be given. It appeared to us that by and large the Board had taken the correct view of the matter, particularly when it was not denied that the appellant had earned adverse ACR fr 1962 and further there was no indication on record that it was not conveyed to him.
Accordingly we hold that even in 1987 the appellant was superseded by his juniors and as such he was not entitled to the benefit of rule 13 of the Seniority Rules.
12. As regards the contention of the respondent's learned counsel that the appeal was the-barred, we regret out inability to subscribe to such contention. We have carefully examined the question of limitation and have come to the conclusion that the appeal was in the., We need not plunge into detailed discussion on this point because the appellant having no case on merits, the appeal has to be dismissed. Accordingly the appeal is dismissed with no order as to costs.
13. Given under our hands and the Seal of this Tribunal on this 10th day of August, 1992 at Karachi.