1. MUNAWAR KHAN (CHAIRMAN): --The appellant, Ali Sher is a constable in Excise and Taxation Department having been appointed in that capacity on 22nd February, 1973. He claims to be senior to private respondent, Ghulam Shabbir Kalo, who, according to the appellants' case, was appointed constable in the said Department in 1982. In spite of appellant's claim of seniority, the private respondent was promoted to the post of Excise Dafedar vide order dated 6th January, 1992, of the Director, Excise and Taxation, Sukkur. In this appeal the appellant has assailed the said order of the private respondent's promotion, praying that he be declared as senior to the private respondent and consequently entitled to the promotion in his place.
2. We heard the arguments of the learned counsel for the parties and also went through all the relevant documents.
3. The appellant's prayer as given in his memo of appeal reads as under:-- "In view of the above it is most respectfully prayed that R & P as well as minutes of Departmental Promotion Committee may kindly be called for from the office of the respondent No. 2 and after consideration to declare that the appellant is senior to respondent No.3 and is therefore entitled for promotion in his place.
4. It appears that the appellant's prayer is in two parts: one that he declared as senior to the private respondent and two, that he be promoted in his place. So far his seniority vis-a-vis the private respondent is concerned, it is not disputed that the appellant is senior to the private respondent. In para. 6 of the written statement filed on behalf of the official respondents, it is admitted that the appellant is senior in service to the private respondent. In view of this admission further decision was not needed on the question of seniority. But the appellant's seniority would not automatically entitle him to promotion. The competent authority had to determine the fitness and suitability for promotion. As is clear from proviso (b) to section 4 of the Sindh Service Tribunals Act, 1973, this Tribunal has no jurisdiction to determine 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. Consequently the Tribunal cannot grant him the relief he has prayed for.
5. Confronted with the above situation, the appellant's learned counsel gave a twist to his arguments, submitting that actually the appellant's prayer was that his case was not placed before the Departmental Promotion Committee and was therefore not considered by the said committee.
6. Obviously this was afterthought. No such thing finds mention in the appellant's prayer reproduced hereinabove. We were shown a certificate signed by all the three members of the Departmental Promotion Committee including its Chairman indicating that the appellant's case was duly considered by the said Committee. The certificate is to the following effect: "Certified that the name of the Excise and Taxation constable Ali Sher Qureshi was considered alongwith others at the time of Departmental Promotion Committee held on 5-1-1992 under the Chairmanship of Director, Excise and Taxation, Sukkur Division, Sukkur."
7. We see no justification to declare the above certificate as false. Besides the Director, two Excise and Taxation Officers were the members of the Departmental Promotion Committee. Such responsible officers were not expected to sign a false certificate. If they had not considered the name of the appellant, they had no need to issue false certificate. What animus such high officers bore against the appellant, a poor constable, was not clear from the record. It was true that the appellant's name did not appear in the minutes of the meeting of the Departmental Promotion Committee.
8. May be the names of only those officials were mentioned in the minutes whose performance report and other record were satisfactory. In any case the absence of the appellant's name from the minutes could not by itself be accepted as the argument that his name was not considered by Departmental Promotion Committee. There would be variety of reasons for omission of his name from the minutes. Since all the members of the Committee unanimously certified that the Committee did consider the appellant's name; there was no apparent reason to doubt their such statement.
9. Apart from above, the written statement filed on behalf of the official respondents in para. 6 has given the details of the grounds on which the appellant was ignored for promotion. They are reproduced as under: "(i) He was dismissed from service on the following grounds:
(a) He had proved unworthy of his job as much as he has been found indulging in objectionable activities which tend to create bad name to administration, his causing harassment to the passengers and is also knocking money and household material without any legal cause from them. In spite of instructions he has turned careless and proved a liability.
(b) His general reputation is bad and is in habit of extortion and making searches of buses unauthorisedly and for his personal benefits. He was subsequently reinstated in service by the Secretary to Government of Sindh, Excise and Taxation Department vide No. SO (ADMN) (E & T)/76- Estt. Dated 4-4-1979 (Copies of dismissal order and reinstatement letters are enclosed at Annexure (C and D).
(ii) Appellant was also suspended by the then Director, Excise and Taxation, Sukkur vide his. Order No. Estt./(1791), dated 22-5-1989 (Copy enclosed at Annexure E) on the complaint application and he was reinstated with a `Censure' in his record (Copy enclosed Annexure F).
10. (iii)Again Excise and Taxation Officer, Khairpur under his letter dated 4-1-1990 (copy enclosed at Annexure G) reported misconduct of the appellant and requested for severe disciplinary action.
11. Thus the appellant is a liability on the department rather than an asset (Annexure H).
12. From the above appraisal of the material available on record, we are convinced, that the Departmental Promotion Committee in its meeting held on 5-1-1992 considered the appellant alongwith the others including the private respondent for promotion but did not give their approval for the appellant's promotion due to his unsatisfactory service record. Thus the appellant stood superseded by those who were not only cleared by the Departmental Promotion Committee but were actually promoted. In these circumstances, the appeal is dismissed with no order as to costs.