' MUHAMMAD ISMAIL (MEMBER).---The appellant, Noor Muhammad Haleem, was serving as Meteorologist (BPS-18) in the Meteorological Department when a seniority list was circulated in April, 1973, placing him at Serial No, 34 and respondent No, 4, Abdul Majid, at Serial No, 35.
Subsequently a revised Seniority List of Deputy Director/Senior -Meteorologists was circulated in 1984, wherein too the appellant was shown senior to him as his name appears at Serial No, 6 while of respondent No, 4 at Serial No,
7. However, when the Central Selection Board-II, in its meeting held on 26-2-1995, considered the appellant along with respondent No, 4 for promotion to the post of Director (BPS-19), it did not clear him as his score was less than the requisite threshold of 60 marks.
The appellant was superseded several times but lastly when respondent No, 13, Shaukat Ali Arain, was promoted to BPS-19 on 23-4-1994, he submitted a departmental appeal on 12-6-1994, which remained responded to. He then approached the High Court for obtaining directions for the disposal of his departmental appeal. It was on the basis of the directions of the High Court, that the appellant's departmental appeal was disposed of on 23-1-1996 an4 the reply thereto was communicated to him on 29-6-1996. The appellant then filed the present appeal before this Tribunal on 25-2-1996 under section 4 of the Service Tribunals Act, 1973.
2. The appellant's case is that the quantification of the A.C.Rs, was taken into consideration without grant of two marks of teaching experience coupled with negative marking of 3 marks on account of punishment of "Censure" and it was for this reason, that the quantification of 62 marks was brought down the requisite threshold of 60 marks. According to the learned counsel, the appellant was entitled to two marks on account of teaching experience at the institute of Meteorology/Geophysics, Karachi, but they were not added to raise the quantification. He also alleged that the A.C.Rs, for the years 1969, 1978, 1979, 1980, and 1981 were got initiated from his colleagues of the same cadre and status, who were in competition with him for the next post and as such the reports were a nullity in the eye of law and can be treated as non-existent. The learned counsel stressed, that the quantifications for all these years had to be calculated keeping in view the. Appellants previous record and that he should not be deprived of promotion on the basis of the reports for the said years.
3. The learned counsel for the respondents admits, that the appellant was placed above the respondent No,4 in both the seniority lists but he argued that when his case was considered for promotion, his acore fell short of the requisite standard and as such the Central Selection Board-II did not clear him for BPS-19. The appellant was awarded a minor penalty of censure in 1979 but he did not challenge the same before any competent forum. Subsequently, when he addressed a representation to the Secretary in 1993, the said penalty was withdrawn. Since the appellant's record of service was indifferent and the quantified score was less than the minimum threshold of 60 marks, he was not cleared by the Central Selection Board-II more than once. He further argued, that the appellant's appeal is incompetent as no appeal lies against the supersession, unless mala tide is proved. In the instant case, no mala fide is proved and, therefore, the appellant cannot challenge his grievance by way of appeal before this Tribunal. Regarding the objection that A.C.Rs, for the years 1969, 1978, 1979, 1980 and 1981, were initiated by his colleagues and as such they were not of any importance, it was submitted that the reports were written by the Deputy Director and countersigned either by the Director or by the Director-General and, therefore, they were valid and did not lose their sanctity. It was also submitted, that although the adverse remarks were expunged and the penalty of "Censure" was withdrawn, never the less the overall "grading in the A.C.Rs, of the appellant for the years 1969, 1972 and 1989 were not upgraded and thus he could not achieve the minimum threshold of 60 marks. The learned counsel farther submitted, that the appellant was considered for promotion by the CSB-II in its meetings held on 20-2-1985, 27-6-1986, 11-2-1991, 13- 12-1992 and 20-2-1994, but he was superseded on each occasion, as he could not achieve the target of minimum threshold of 60 marks and indifferent record, as such the appellant's request for pro forma promotion with retrospective effect, does not merit consideration and, consequently, the appeal deserves dismissal.
4. We have heard both the parties and have also perused the record made available to us. Neither, the appellant nor the respondent-department has produced the minutes of the meeting and, therefore, without going through them, it is difficult for us to come to a correct conclusion. We are, however, constrained to observe that, on the one hand, the appellant is contesting that the A.C.Rs, for the years 1979, 1980 and 1981 were written by the incompetent officers, while on the other hand, he stresses that, had two marks been added to his score, he would have achieved more than the requisite threshold of 60 marks and would have become eligible for the post of Director in 1985.
Besides this, the appellant's submission that, after expunction of the adverse remarks and the withdrawal of the penalty imposed upon him, he was entitled to the promotion, is also of no avail to him, as admittedly no one becomes automatically entitled to higher post after expunction of the adverse remarks. In the case reported as 1985 SCMR 1410, it has been laid down by the Humble Supreme Court, that a person not found fit for promotion on account of adverse remarks, cannot on account of expunction of those remarks, get the order of supersession set aside. The appellant was superseded on account of indifferent record and it is not the appellant's case that, after the expunction of the adverse remarks, his overall grading was raised, therefore, the contention of the appellant, that he was entitled to promotion in higher grade is misconceived and merits no consideration. The alternative submission, that after the expunction of the adverse remarks, the respondents should have raised his grading is also of no avail to him, as in our view, mere expunction of the adverse remarks, does not ipso facto entitle a civil servant for higher grading, unless and until the A.C.R. Is upgraded.
5. The other plea of the learned counsel, that the appellant's A.C.Rs, for the years 1969, 1978, 1979, 1980, and 1981, were written by his colleagues and as such they are of little significance. We have seen the relevant A.C.Rs, and find substance in the contention of the appellant that they were written by the persons, who were holding similar post and status as that of the appellant and as such they were invalid as it has been laid down in para. 2:33 of "A guide to Performance Evaluation" as under:- "that the report should be initiated by the next higher officer and countersigned by an officer higher than reporting officer."
' The reports were admittedly written by the officers who were the counterparts of the appellant and as such they ought to have been got rewritten by an officer, who was higher in rank and well- conversant with the work of the appellant but it is too late now and the appellant's grievance cannot be redressed at this stage.
6. Coming to the next objection, we find that if the appellant's contention regarding his seniority over respondent No, 4 is accepted, then his prayer for pro forma promotion with effect from the date he (Abdul Majid) was promoted i. e. 20-2-1985, becomes a past closed chapter, as he failed to seek remedy within the period prescribed by law in such matters and claim of the appellant is not entertain able. The appellant's grievance occurred on every supersession, therefore, in our view, his claim with effect from the date the said respondent No, 13 was promoted, cannot be rejected altogether. However, it has laid down in the case reported as 1986 PLC (C.S.) 174, that the pro forma promotion cannot be challenged retrospectively and the act of Government in not giving promotion to a civil servant, does not result in any infringement of his fundamental rights under the Constitution. Again in the case reported as 1985 PLC (C.S.) 28, it was laid down that pro forma promotion cannot be claimed as of right and it is absolutely for the department to see whether a civil servant can be granted pro forma promotion or not. Therefore, ordinarily, this Tribunal does not interfere with the discretionary powers of the concerned departmental hierarchy, as irrespective of the above judgments, it has also been barred by section 4 of the Service Tribunals Act. 1973, read with section 22 of the Civil Servants Act, 1973, but. At the same time, there is no dearth of authorities, wherein it has been held that this Tribunal can go into the question of promotion only if any injustice had been done to a civil servant. If any authority is needed we would quote PLD 1980 SC 22.
1991 SCMR 1129 and PLD 1994 SC 539. In this case we find that the respondents have failed to establish that 2 marks of teaching experience had been added to the appellant's score when he was considered for promotion. We, therefore, remand the case to the Respondent Department, to look into the matter as it appears from the letter dated 24-8-1991, that the appellant had remained posted in the Institute of Meteorology and , Geophysics as Senior Instructor from 26-10-1977 to 26- 6-1982. The Respondent Department is at liberty to judge the appellant's suitability in BPS-19 only with effect from the date Mr. Shaukat Ali respondent No, 13, was promoted and not prior to that as he had remained indolent in seeking remedy at the relevant time.
7. In the result the appeal is disposed of in the manner and to the extent indicated above with no order .As to costs.