ROSHAN ALI MANGI (MEMBER). ---Brief facts of the case are that in its meeting held on 5th August, 1989, the Departmental Selection Committee selected officials of different categories for posting abroad in the Office of Community Welfare attaches in Pakistan Missions abroad. The appellant who is a Stenographer, his name was, to, included in that list. His immediate senior, Mrs. Najma, Stenographer, had been Posted abroad and proceeded on 31-3-1996. The appellant therefore, was hoping that it would be the next turn of his posting abroad. However, a fresh Departmental Selection Committee was constituted on 21-5-1996 who selected the officials of various categories including the Stenographers for posting abroad but that list did not include the name of the appellant.
2. Being aggrieved by this selection list, the appellant submitted a departmental appeal on 10-6- 1996 which was rejected by the Ministry vide O.M. Dated 8th July, 1996. Hence this appeal with the prayer to set aside the impugned order dated 21-5-1996.
3. The learned counsel for the appellant pleaded that there is a practice in the Ministry that once an official is posted abroad, he is not sent again o the foreign posting. On the contrary, the respondent No. 2 who has been selected in the abovementioned Meeting has already been abroad. Hence according to the practice he should not have been selected since he has already been abroad once. This is violation of the practice, besides the action on the part of the respondent department, is discriminatory. In this regard the appellant submitted the precedent of one Mr. Manzoor Hussain, Stenographer of Bureau of Emigration, who on promotion as Stenographer on 28-6-1986 was selected by the Departmental Selection Committee for posting abroad. However, one Mr. Yousuf Bhatti, who was senior to Mr. Manzoor, but since Mr. Manzoor had already enjoyed the foreign posting, therefore, on representation against him, Mr. M. Yousuf Bhatti, was selected for posting abroad. On the basis of above precedent, it was pleaded that the respondent No. 2, who has been selected by the Selection Committee in its meeting held on 21-5-1996 and has already been abroad on posting, has no right again to be posted abroad.
4. Besides this it has been argued that the appellant was selected for posting abroad in the meeting held on 21-11-1991. His immediate senior has already been proceeded on foreign posting. It was his turn as such he should have been posted abroad especially when that list had not yet been fully exhausted. It was also argued that the practice invoked has already been applied in the selection and posting of other categories of the officials. However, the same has been violated in his case i.e. In the case of Stenographers. He has, therefore, prayed that selection list be set aside and the appellant be sent abroad on posting.
5. The respondent's side has filed their objections. At the very beginning they have raised vital question of law. The learned counsel for the respondents has invited our attention to section 22(2) of the Civil Servants Act, 1973 which provides 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 higher post or grade". Again rule 4(1) of, the Civil Servants (Appeals) Rules, 1977 was cited which provides 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 the higher post or grade".
6. Further he also referred to the judgment of the Supreme Court, dated 30-10-1990 in Civil Appeal No. 60 of 1987 (Federation of Pakistan through Secretary, Ministry of Labour (Manpower Division and Overseas Pakistanis) v. Mr. Asmatullah Khattak, Stenographer, Bureau of Emigration and Overseas Employment and another), in which, it has been held:-- "7.The power to transfer or make a posting within the framework of the Rules is essentially an administrative power not affecting any of the vested rights of the civil servants. For that reason none can come before the Tribunal so that he should be posted at a particular station or a particular post unless he can show a rule mandating so what he wants."
7. It has further been pointed out that as held by the Supreme Court, suitability for promotion to a particular post, is a matter to be dealt with by the Government on its administrative side and is not justice able in the Courts of law. (PLD 1988 Lahore 553, PLD 1960 SC 164).
8. In the written objections of the respondents, it has been submitted that the petitioner Was appointed as a Stenographer in the Manpower Division with effect from 22-3-1990, whereas the respondent No. 2 Mr. Riazul Haq was promoted to the post of Stenographer with effect from 9-6- 1982 and actually joined against the post with effect from 17-2-1985. It is obvious from this that the appellant is not senior in service to respondent No. 2.
9. It is also clear from the seniority list of Stenographers of the Manpower Division that respondent No. 2 is placed at S.No.9 whereas the appellant is shown at S. No. 16. Therefore, respondent No. 2, being senior to the appellant, has been selected for posting abroad. Even otherwise the selection is done on the basis of seniority-cum-fitness basis. The Committee therefore, selected respondent No. 2 on the above principle in its meeting held on 21-5-1996. As regards the appellant's contention that the selection made by the department was in violation of the previous practice, it is not tenable under the rules. It is further stated that it is no denying the fact that practice' cannot override the 'Rules', which are framed in consultation with the Establishment Division and F.P.S.C.
With these submissions, it is prayed that the appeal as well as stay application be rejected.
10.We have heard the parties at length and perused the record. We find no doubt in the list of candidates selected by the Departmental Selection Committee in 1991, the appellant was selected for the posting abroad, his immediate senior was already sent abroad and then it was his turn. This list should have been implemented fully and thereafter the new selection should have been undertaken. However, the respondents have quoted section 22(2) of the Civil Servants Act, 1973 and also rule 4(t) of the Civil Servants (Appeals) Rules, 1977 in support of their-stand and besides this the judgment of the Supreme Court referred above, also.
11. In view of the position as laid down in the said Acts and judgment of the Supreme Court, we are handicapped to do anything. Since our jurisdiction in the matter of posting and promotion as per above Acts and Supreme Court's judgment, is restricted. In these circumstances, we are unable to interfere into the decision already made by the department.
12. For the reasons recorded above, the appeal having no substance is dismissed and the stay application is also rejected.
13. No order as to costs. Parties be informed.