1. JUSTICE (RETD.) MUNAWARALI KHAN (CHAIRMAN).---This appeal arose from the grievance of appellant, Mr. S. Ali Raza Zaidi, Electric Sub-Inspector against the promotion of two private respondents, Messrs Niaz Ali Shaikh, and Nasiruddin Siddiqui, as Assistant Electric Inspectors. The appellant's case, as disclosed in the memo of his appeal, is that he joined as Electric Sub-Inspector (BPS-9) on 1-11-1977, whereas the respondents Niaz Ali and Nasiruddin joined the same cadre of Electric Sub-Inspectors on 14-12--1977 and 5-1-1978 respectively. The Irrigation and Power Department vide its Letter No. A-1/10-16/70-V(B), dated 16-11-1991 addressed to the Chief Electric Inspector, Karachi issued a consolidated seniority list of Electric Sub-Inspectors wherein the appellants name appeared at S.No. 2 and the names of aforesaid two respondents were, mentioned at S. Nos. 3 and 4. Besides this, appellant's service record had been excellent throughout, as at no stage he was conveyed any adverse remarks of his superiors.
2. Two posts of Assistant Electric Inspectors (BPS-16) were created for Sukkur Region. Although the appellant was senior to the aforesaid respondents in lower cadre of Sub-Inspectors and had unblemished service record, yet he was ignored and the above respondents, his juniors were promoted to the said posts of Assistant Electric Inspectors, in utter violation of West Pakistan Electric Inspectors and Assistant Electric Inspectors Recruitment Rules, 1983. Accordingly he challenged their promotion order dated 20-7-1992 in departmental appeal dated 16-8-1992 preferred to the Chief Secretary. After waiting the statutory period for decision on the said appeal, the appellant has come up in the-present appeal.
3. We heard the arguments of Mr. Rashid Akhtar for the appellant and Mr. Abdul Latif Ansari, A.A.-G. On behalf of the Official respondents. The two private respondents who were unrepresentative, however, relied upon their respective written statements as containing their arguments. We also went through all the relevant documents.
4. In course of the arguments it was pointed out that Service Tribunal had no jurisdiction to interfere with the impugned order. In this connection reference was made to proviso (b) of section 4 of the Sindh Service Tribunals Act, 1973, which bars the jurisdiction of the Tribunal for determining fitness for appointment or promotion to any post. It was submitted that since appellant's prayer involved the determination of his fitness vis-a-vis the above two private respondents for promotion as Assistant Electric Inspector, this Tribunal lacked the necessary jurisdiction for taking such decision.
5. No doubt the notification sought to be set aside was the notification dated 20-7-1992 whereby both respondents Niaz Ali and Nasiruddin were promoted to the posts of Assistant Electric Inspectors.
6. The appellant's further prayer was that he being senior to the said respondents should be considered, manifestly, for promotion to the said post. In fact this very question of jurisdiction had come up for consideration at the initial stage of admission of the appeal for regular hearing. The order, dated 4-4-1993 whereby the appeal was admitted to regular hearing shows that the argument of appellant---s learned counsel at that time was that the appellant's case for promotion was never considered by the relevant DPC. Obviously on the basis of his said argument the appeal was admitted to regular hearing.
7. While it is true that in view of proviso (b) to section 4, hereinabove we cannot go into the question of fitness of the parties appellant as well as the two private respondents - for promotion to the post of Asstt: Electrical Inspector, we certainly have jurisdiction to investigate if the appellant was ever considered for such promotion and if not, we can direct for considering him for the promotion. We were however told by the learned AA. -G. That the appellant along with other candidates including the two private respondents was actually considered by the D.P.C. For promotion to the post of Assistant Electrical Inspector, but some how he was not cleared by the D.P.C. For the said promotion. In support of his arguments, he invited our reference to the plea taken on behalf of the official respondents in their written statement, under the caption "BRIEF FACTS". It may be reproduced as under: -- "Two posts of Assistant Electric Inspectors were lying vacant in the Department of Irrigation and Power vide Notification No. A-I/11--2/81, dated 6th August, 1983 the posts of Assistant Electric Inspectors can be filled in either by initial recruitment or by promotion or by transfer. It was decided to fill in these two posts by promotion amongst Electric Sub-Inspectors working in the said Department. The matter was placed before the Departments Promotion Committee (DPC) for the post in BPS-16 to BPS-18, in Irrigation and Power Department in its meeting held on 14th July, 1992.
8. The relevant record including ACRs of 4 Electric Sub-Inspectors including appellant was considered by the D.P.C. But due to unsatisfactory record of the appellant D.P.C. Did not clear him for the post of Assistant Electric Inspector, hence he was not promoted. His juniors M/s. Niaz Ali Shaikh and Naseeruddin Siddiqui, Electric Sub---Inspectors were cleared by the D.P.C. In the same meeting and with the approval of the competent authority they were promoted against the posts of Assistant Electric Inspectors in BPS-16."
9. Apart from above, we have also perused the minutes of the meeting of the DPC held on 14th July, 1992. It would appear that the question of promotion to the post of Assistant Electric Inspector was taken up as item No.2 in the meeting and in all four candidates including the appellant and the above two private respondents were considered for the promotion. The observations of the DPC with regard to the appellant were noted in the minutes as under:-- "(ii) Mr. Ali Raza Zaidi.---His A.C.Rs. For the year 1990 contains adverse remarks as such he was not cleared for promotion to the post of Assistant Electrical Inspector BS-16."
10. The appellant's learned counsel, however, vehemently denied the truth of the above observations avering that any adverse A.C.R. Including that of 1990 was never conveyed to the appellant. The learned counsel referred us to grounds Nos. 4 and 5 of the memo of appeal, submitting that it was clear from the said grounds that the appellant had taken the stand that since he was never communicated any adverse remarks, the authorities were bound to consider his case for the promotion. He further submitted that in the corresponding paras of the written statement the reply given was obviously evasive. The effect of such reply, according to him, was that the appellant's plea was admitted in as much as that adverse A.C.R. Was never communicated to him. The learned counsel also showed us the S&GAD's circular dated 9th December, 1985 in which in para. 3 it was stated:---.... Uncommunicated adverse entries in the confidential reports cannot be taken into consideration to their disadvantage at the time they are considered for promotion to higher posts---..--- Basing his arguments on the above circular the appellant's learned counsel contended that since the appellant was not cleared for the reason that his A.C.R. For 1990 contained adverse remarks, which were never communicated to him, he could not be held to have been considered for promotion.
11. In reply to the above argument of the appellant's learned counsel, the learned AA.-G. Invited our attention to the Electrical Inspector Karachi's communication dated 30-4-1992 addressed to the appellant which reads as under:-- " This is to inform you that your performance of duty during the year 1990 as Electric Sub-Inspector (Karachi East) under the Assistant Electric Inspector, (Karachi East) assessed below average in (i) preservation and devotion to duty, (ii) capacity to guide and train subordinates, and (iii) punctuality. You were also marked as habitual late commer and such remarks of the immediate officer were also endorsed by the Countersigning Authority.
(2) As such you are advised to explain your position in writing and you are required to be punctual in the duty and to improve your work and conduct in your own interest."
12. It could appear from the above communication that the appellant was apprised about the adverse A.C.R. Of 1990 though a bit late, but certainly much before he was considered for promotion to the post of Asstt: Electric Inspector. If he did not accept the truth of the said A.C.R. He was free to apply for its expunction. There is nothing on record to show that he made any such more. Accordingly the adverse A-C.R. Of 1990 were left un-expugned on the record when the appellant was considered for promotion. It has been held by this Tribunal in several cases that the delay in communicating the A.C.R. Did not have the effect of washing off of the said A.C.R. Whatever value such delayed A.C.R. May have, it would remain as a part of the A.C.Rs. File. Accordingly the D.P.C. Could not overlook or ignore the adverse A.C.R. Of 1990. We are, therefore, convinced that the D.P.C. Did consider the appellant for promotion to the post of Assistant Electric Inspector, alongwith above two private respondents but due to adverse A.C.R. Of 1990, he was not approved for the said promotion.
13. For above reasons we see no justification to interfere with the impugned order. Accordingly the appeal is dismissed with no order as to costs.