1. ' RAJA QURESHI, J.---Constitutional jurisdiction has been invoked by the petitioner under Article 199 of the Constitution seeking the following reliefs:-- "(a) The petitioner may be saved from injustices, humiliation and financial losses to the tune of Rs,5,60,000.
(b) The notification No,M-1 (49)/95 dated 14-7-1996 may be declared illegal, void and be ordered to be cancelled.
(c) The petitioner be restored forthwith to the post of Director-General on which he was working prior to 14-7-1996.
(d) The respondents Nos.1 and 2 may be directed to regularize the petitioner as Director-General, Pakistan Meteorological Department with effect from 14-1-1996."
2. ' In order to secure the aforementioned relief, it has been contended by the petitioner before us that he has been working in Pakistan Meteorological Department for the last 38 years, and during the course of his service no adverse remarks have been established against him. He is stated to have been promoted in BPS-18, Senior Meteorologist and BS-19 as Director. He had also been acting as Director-General, Meteorological Services with effect from. 14-1-1996 up to 14-7-1996. Such acting charge was acquired by the petitioner by virtue of him being the senior-most Director in the Department. Grievance of the petitioner before us is that instead of regularizing the petitioner as Director-General, the respondents Nos.1 and 2 have mala fidely promoted the respondent No,3, as Director-General vide Notification bearing No,M-1 (49) dated 14-7-1976. It has further been contended that the petitioner would stand retired upon attaining the age of superannuation on 7- 9-1998 which is likely to result into financial losses to the petitioner which have been computed as follows:-- "(1) In service losses during 1996 up to 1998 Rs,1,50,000. (2) Pension losses:
(a) monthly loss Rs,2,000 p.m.
(b) total loss over gratuity Rs,4,00,000. Total Rs, 5,50,000."
3. ' Series of mala fides at the hands of the respondents Nos.1 and 2 have been attributed by the petitioner to his disadvantage in service which would be dealt by us herein below.
4. ' That in order to demonstrate mala fides on part of the respondents Nos.1 and 2 favouring respondent No,3, the petitioner has drawn our attention to various aspects whereby rules and instructions of the Establishment Division have been violated while dealing with the case of the petitioner for promotion to the post of Director-General, Pakistan Meteorological Department.
5. ' Firstly A.C.Rs, of 1995 are stated to have not been included in the process of quantification, mala finely by the respondents Nos.1 and 2 who had abstained to follow the procedure contained in the "Guide to Performance Evaluation" at page 26, para. 2.39 (a) (i). Additionally non-inclusion of A.C.Rs, of 1995 in quantification has been canvassed before us to be volatile of the Establishment Division O.M. No,43/1/78-C.P., dated 21-12-1978, which provides that in the event of retirement of a Government officer, he should be asked to write/countersign report on the Officers and staff who have worked under them for more than three months before his retirement. On failure of preparation of such reports prior to retirement having been made by the Retiring Officer, an alternate procedure has been provided which could result into the formation of A.C.Rs, which was not done according to the petitioner for the year 1995.
6. ' Secondly, A.C.Rs, of 1993 are stated to have been scrapped and have not been included in the process of quantification, being volatile of the "Guide to Performance Evaluation". It has been contended that 1993 A.C.Rs, were raised by the then Director-General under whom the petitioner had worked but the same were subsequently scrapped at the level of the Ministry of Defense, without intimating the petitioner which has caused fewer A.C.Rs, in BS-19. This act on part of the respondents Nos.1 and 2 was canvassed before us to have been mala finely motivated, and was volatile of Establishment Division O.M. No,6/1/70-A-II, dated 2-3-1970 and O.M. No,6-5-72-A-H, dated 17-6-1972 which provides that in the event when no Officer is available to write or countersign the report, the Administrative Division has to make a reference to the Establishment Division seeking guidance to meet the situation. It is further required to be ensured that the report does not remain unwritten. However, in the instant case scrapping of A.C.Rs, of 1993 has resulted into fewer A.C.Rs, in BPS-19.
7. ' Thirdly the petitioner has contended that writing and countersigning of 1986 A.C.Rs, by unconcerned officer has resulted in degradation in the A.C.Rs, for the year 1986. He has canvassed before us that his A.C.Rs, of the year 1986 were raised by Mr. Arshad Noor Khan, Director for the whole year of 1986 whereas he had actually worked under Mr. S.A. Kazmi, the then Director-General who had to raise the 1986 A.C.Rs, only for the period of January up to June, 1986. Hence according to the petitioner the grade awarded to the petitioner by unconcerned officer was volatile of Establishment Division Order OM-6-1-69-A-II(BT), dated 1-7-1972 and O.M. No,6-3-87-BT-II, dated 8-11-1987, which provides that the question of recording of confidential report in respect of officers who may have worked with a Reporting Officer for a minimum period of three months during a year has been considered. The Establishment Division's order further provides that the Countersigning Officer is required to obtain separate report from each of the reporting Officer, with whom the officer concerned has worked during the year. Upon examining such reports, the Reporting Officer may exercise his discretion to decide which of those reports should be accepted.
8. Alternately, he is required to record his own report after examining the reports of the Reporting- Officer, with whom the officer has worked during each calendar year. This process is further clarified that if major period in a calendar year is spent by an officer under different Reporting Officers for less than three months on each occasion, then where a major period of the calendar year is covered by a regular report, the performance evaluation report for the period of less than three, months is not required to be initiated. Based on non-compliance of these instructions the petitions has contended to have been adversely affected.
9. ' Fourthly, non-communication of adverse A.C.Rs, of 1976 and 1979 had been canvassed before us to be an act tainted with malice. It is contended that no adverse remarks were communicated or established during the 38 years' service of the petitioner but two reports are being counted adversely against the petitioner. It seems that there are prescribed steps required in establishing an adverse remark including acknowledgment of adverse A.C.Rs, which were actually not signed by the petitioner or acknowledged. Moreover formal decision thereof by the competent Authority was neither made, nor communicated to the petitioner. Consequently, the said adverse remarks are canvassed before us to have become void in terms of instructions 3.1 (vii) which provides that a confidential report containing adverse remark should not be taken into consideration, until they have been communicated in writing to the officer concerned and a decision is taken on his representation, if any. Such steps having not been taken, the said adverse ,reports are not required to be taken into consideration the process of quantification for ascertaining the fitness of the petitioner for promotion to BS-20.
10. ' Fifthly the petitioner has contended that he was not recalled from his deputation at Saudi Arabia to consider his case for promotion to the post of Director of Pakistan Meteorological Department in 1988 mala fidely by the respondents Nos.1 and 2. He has further contended that in 1988 promotion to the post of Director of the Department was processed while the petitioner was stated to be on deputation abroad. He further submitted that he was neither given intimation notice, nor was he asked to return to Pakistan which is a requirement under the Establishment Division Order No,10(3)/81- CP1(PT), dated 31-10-1982. To substantiate his contention our attention has been invited to para. 7 envisaged in the Chapter of Promotion Policy in ESTACODE which requires that a civil servant on deputation to a foreign Government. International agency or a private organization abroad, will be considered for promotion only on his return to Pakistan. He will be given intimation and asked to return to Pakistan before his case comes up for consideration for promotion in accordance with the seniority position. If he fails to return, he will not be considered for promotion.
11. Such an officer will have to earn at least one Confidential Report after his return to Pakistan before he is considered for promotion. These rules and instructions framed by the Establishment Division were canvassed before us to have been mala finely violated which resulted into causing fewer A.C.Rs, in BS-19. Additionally, such acts helped in accommodating the respondent No,3 in the then available vacancy of Director for promotion. Similarly, in 1991 same lapses were canvassed to have been repeated by the respondents Nos.1 and 2 causing fewer A.C.Rs, in BS-19.
12. ' Sixthly, the promotion of the respondent No,3 was contended to have been made mala finely by the respondent No,1 without the respondent No,3 having N.I.P.A. Training. It was contended that the respondent No,1 was selected in the first instance, and only thereafter was sent on N.I.P.A. Training, which negates the mandatory instructions and rules issued by the Establishment Secretary D.O.
13. Letter No .10(10)/85-CP., dated 15-5-1981. Para. 1(c)(v) providing that N.I.P.A. Training is a prerequisite for Officers below the age of 56 for promotion to BPS-20.
14. ' Seventhly two marks have not been included mala finely by the respondents Nos.1 and 2 in favor of the petitioner for having served a training institute which is required to be done. According to the petitioner he has served at the P.A.F. Academy, Risalpur for three years and three months which would entitle him for addition of two marks in qualification for serving at such a training Institute as is envisaged in the Establishment Division O.M. No,10(10)/85-CP-1, dated 4-2-1986 requiring addition of 2 marks to officers who have served specialized training in any particular cadre for a period of two years or more.
15. ' Lastly, the petitioner has canvassed before us that a wrong formula for quantification of eligibility threshold has been adopted by the respondents Nos.1 and 2 mala fidely being violate of Establishment Secretary DO Letter No,10(10)/85-CP-1, dated 15-5-1985 corrected vide Establishment Division OM.10(10)/85-CP-1, dated 11-8-1985, as amended vide Establishment Division O.M.
16. No,10(10)/85-CP-1, dated 4-2-1986. It has been contended before us that application of wrong formula on the basis of fewer A.C.Rs, void A.C.Rs, and ignoring the petitioner posting at P.A.F.
17. Academy, Risalpur, has been made by the respondent despite the fact that the petitioner was a senior-most Director in the department and had been given current charge of Director-General, Meteorological Service. The A.C.Rs, grading awarded to the petitioner, during the petitioner service in BPS-17 and above are as follows:-- "(a) B-17 5 Average 6 Good (Good + average)
(b) BS-18 5 Good 2 Very Good,
(c) BS-19 (1993) written by then D.G. But scrapped by Aviation Division."
18. ' According to the petitioner the formula applied for calculation of eligibility threshold viz. (6 x B) + (4 x A) is wrong and not justified and the formula applicable to the petitioner would be (5 x c) + (3 x b) + (2 x a) where A.B.C. Have the usual meaning as defined in the addendum of promotion policy.
19. Hence on the bais of correct formula viz. (5 x c) + (3 x b) + (2 x a) coupled with disregarding void A.C.Rs, of the petitioner in the process of quantification, the same works out to be as follows:-- 5/8.0 (+) 3 x + 2 x 6.1 = 74.1.
20. ' For serving P.A.F. Academy, Risalpur 2.0 total 76.1."
21. ' Keeping in view the eligibility threshold of 70 required for a promotion to BS-20, the petitioner submits to have exceeded the same.
22. ' On the other hand, the learned Standing Counsel representing the respondents Nos.1 and 2 has raised a preliminary objection to the exercise of jurisdiction by this Court under Article 199 of the Constitution. Such objection is based on Article 212 of the Constitution rendering such-like matters to be adjudicated by the Federal Services Tribunal. On the factual plain it has been contended by the learned Standing Counsel, that the petitioner has been superseded on account of his quantification score being less than the requisite threshold. The petitioner was canvassed before us to have earned adverse remarks twice in has entire service. Mala fides have been denied by the respondents Nos.1 and 2. According to the respondents Nos.1 and 2, the proportion to the post of Director-General, Meteorological Service has been made in accordance with the promotion policy of the Government on .The basis of seniority-cum-fitness. The promotion is stated to have been made strictly in accordance with law. In so far as grading of A.C.Rs, of 1986 and Director's promotion of 1988, the contention has been resisted by the respondents Nos.1 and 2 by only submitting the same to be incorrect. In respect of A.C.Rs, of 1993, the respondents Nos.1 and 2 have taken a position that A.C.Rs, of 1993 of all the Directors was not raised on account of death of the then Director-General Meteorological Services, whereas A.C.Rs, of 1995 was stated by them to be not quantified as it was not received by them in due time and the case had already been sent to the Establishment Division. As per the counter-affidavit sworn on behalf of the respondents Nos.1 and 2, A.C.Rs, of the petitioner relating to 1976 and 1979 have been shown to be adverse A.C.Rs,.
23. Stand of the petitioner to have earned two points has also been denied by the respondents Nos.' and 2 that the petitioner having remained in P.A.F. For about three years, yet, did not qualify for having these two makes as the petitioner had never informed the Department of the certificate possessed by him. Finally the respondents Nos.1 and 2 have stated that the confidential reports have been quantified in accordance to the addendum for quantifying the Confidential Reports, and keeping in view the guidelines for Departmental Promotion Policy of the Government as per the Establishment Division D.O. Letter No,10(3)/81-CP1/3, dated 31-10-1982. Consequently, according to the respondents Nos.1 and 2 the quantification of the petitioner was less than the requisite threshold and it was in these circumstances that he stood superseded and was not recommended by the Central Selection Board-II. It has, however, been contended by the learned Standing Counsel that the A.C.Rs, of the year 1995 of the petitioner as well as of his other colleagues could have been taken into consideration, but after expiry of the prescribed date i,e, 28-2-1996. It seems that the Selection Board had met and considered the promotion on 30-1-1996, being one month earlier and, therefore, C.R. Of the year 1995 in respect of all the five officers of BS-19 were not taken into consideration. According to the respondents Nos. 1 and 2, the then Director-General Mr. M. Qasim Malik had expired on 20th September, 1993 resulting into the current charge having been gone to the senior-most Director Mr. Ghulam Farid, as per Government policy and therefore, Mr. Ghulam Farid holding the current charge could not have written A.C.Rs, of officers being of similar status.
24. The Secretary Defence was stated to have expressed his inability to make an objective assessment of the officer, and accordingly a certificate was stated to have been recorded in the A.C.Rs, of all the Directors. Two adverse reports for the years 1976 and 1979 are canvassed against the petitioner resulting into deduction of 2 marks from his total overall quantification as per the quantifying policy. In so far as the petitioner contention to be recalled from deputation, it has been contended that the petitioner was aware of the fact that the case of his promotion was pending in the Ministry of Defence, and yet he did not revert back to Pakistan. It has surely been conceded that the petitioner was neither intimated nor recalled back from his deputation. Consequently, respondent No,3 was upon consideration recommended for promotion to the post of Director-General, but subject to successful completion of N.I.P.A. Training course. Respondent No,3 was stated to have only been notified after he has successfully completed the N.I.P.A. Training course. In so far as serving a training Institute is concerned, respondents Nos.1 and 2 have taken the position that the petitioner's serving at the P.A.F. Academy, Risalpur was never informed by the petitioner to the Department and further there was nothing to indicate that the petitioner w is engaged in teaching at the P.A.F. Academy, Risalpur.
25. ' The learned counsel for the respondent No,3 has primarily raised objection to the maintainability of the present petition in the light of the dictum laid down by Supreme Court of Pakistan in 1985 SCMR 774 (Aish Muhammad v. Government of Pakistan), 1990 SCMR 790 (Accountant-General, Balochistan v. Abdul Majeed), 1990 SCMR 1321 (Government N.-W.F.P, Health Social Welfare v. Dr. Sh.
26. Muzaffar lqbal), 1991 SCMR 1129 (Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui) 1998 SCMR 103 (S.T.
27. Rehman v. Government of Pakistan) 1998 PLC (C.S.) 36 (M. Ilyas v. Secretary to Government of Punjab), 1998 PLC (C.S.) 42 (Javid Iqbal v. Secretary, (Establishment Division), 1998 PLC (C.S.) 70 (Shaheen Akhtar v. Government of Punjab), PLD 1983 SC 100 (paras. 17 and 18) Islamic Republic of Pakistan v. Dr. Safder Mahmood) and PLD 1994 SC 539 (M. Anis v. Abdul Haseeb).
28. ' In addition to the aforementioned reported judgments the learned counsel has further contended that the relief sought by the petitioner relates to his terms and conditions of the petitioner service, jurisdiction for which is exclusively vested with the Federal Service Tribunal and the same could not be granted by this Court in exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan.
29. ' We have considered the submissions made before us by the parties to the aforementioned proceedings, and have examined the record and the case-law placed before us along with the relevant rules and instructions.
30. ' The petitioner and the respondent No,3 were eligible to be considered for promotion and such exercise was undertaken by the respondents Nos.1 and 2. As such the case in hand is not one of those where eligibility which directly relates to the terms and conditions of service is involved.
31. ' Having dilated upon the factual ,controversy raised by the parties before us, we would, in the first instance, like to deal with the preliminary objection as to the maintainability of the present petition on the ground that the same is barred under Article 212 of the Constitution, and is consequently not maintainable. In order to examine the question of maintainability in the instant case provisions of Article 212 of the Constitution and section 4 of the Service Tribunals Act, 1973 hereinafter referred to as the "Act" needs to be examined. Section 4(1)(b) of the Act reads as follows;-- "4(b) Appeal to Tribunals.---(1) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within 30 days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal: ' Provided that (a). ...............................................
(b) no appeal shall lie to a Tribunal against its order or decision of a departmental authority determining 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; and (c)
32. ' It would, thus, be seen that the question for consideration is as to in which matter and to what extent the scope of interference under Article 199 of the Constitution is available. Indeed subsection
(1) of section 4 of the Act provides a mechanism of an appeal to the Tribunal against a final order of a departmental authority, be such authority be original authority, or the appellate authority in respect of any of the terms and conditions of service. This provision is, however, subjected to numerous provisos. The first proviso creates a bar against an appeal before_ the Tribunal without the departmental remedy by way of an appeal or review ,or representation having been availed.
33. The second proviso creates a bar against an appeal in regard to an order relating to fitness or otherwise of a person to be appointed to, or to hold a particular post, or to be promoted to higher post or grade. If the grievance of the Government servant is in relation to such matter an appeal does not lie to the Tribunal. The third proviso creates a bar against an appeal if the decision of Departmental Authority was made before 1st of July, 1969. These provisos came to be dealt by a Full Bench of Baluchistan High Court reported in PLD 1980 Quetta p.68 (Mujibullah Aijaz v. Director- General, Telephones and Telegraphs). Their Lordships while analyzing the relevant provisions arrived at a finding that an appeal shall not lie to the Tribunal in the following cases:-- "(1) When the impugned order was passed before 1-7-1969,
(2) When the civil servant punished is not a "civil servant" for the reason of his exclusion from the definition of "civil servants" in section 2(1)(b) of Civil Servants Act.
(3) When the order is not a final order.
(4) When the punishment imposed is other than the punishment of dismissal, removal, compulsory retirement or reduction to a lower post or time scale.
(5) When the impugned order relates to a person's fitness to hold a post or to be appointed to such post, or to be promoted to a higher post or grade: and
(6) When the order is not passed by a competent Departmental Authority, and is for such reason void."
34. ' In the above-referred matter two questions were referred for decision to the Full Bench which were to the following effect:-- "(1) Whether Article 212 of the Constitution of Pakistan is a complete bar in respect of cases in which a Government servant seeks relief under Article 199 of the Constitution in relation to his terms and conditions of service?
(2) If the first question is answered in negative, what are the governing principles of scope of relief in such cases?"
35. ' Upon hearing the matter, the Full Bench answered the first-referred question in the negative and it had further answered the second question which was dependent on the first question dealing with as to what are the governing principles and scope of relief in such cases, such governing principles were answered and are contained in the concluding paragraph of the judgment.
36. We are mindful of the fact that under Article 212 of the Constitution and section 4 of the Service Tribunals Act, it is manifestly evident that the jurisdiction of the Court is excluded, but only in respect of the cases in which Service Tribunal under subsection (1) of section 4 has the jurisdiction.
37. It would therefore, follow that in the event Service Tribunal does not have jurisdiction to adjudicate upon a particular type of grievance, the jurisdiction of this Court would remain intact. While making these observations we would respectfully place our reliance on the reported judgment 1991 SCMR p.1041 (I.A. Sherwani v. Government of Pakistan). Hence, it is no doubt correct that want of jurisdiction in any Tribunal would attract the jurisdiction of the High Courts under Article 199 of the Constitution. Keeping in view the provisions of section 4(1)(b) of the service Tribunals Act, we feel that there can be no other interpretation, but to allow exercise of jurisdiction by this Court under Article 199 in respect of matters in which no appeal lies to a Tribunal against an order or decision of a departmental authority determining 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. In the event, we were to hold that the instant petition is barred and not maintainable, the same would violate legislative intent as is envisaged in section 4(1)(b) of the Service Tribunals Act. As such we hold that the present petition is maintainable despite bar of Article 212 which is not absolute and the provisions of section 4(1) (b) of the service Tribunals Act are attracted in the instant case.
38. ' We now proceed to examine the factual controversy and we find that the A.C.Rs, of the petitioner for the period 1987 to 1991 were not raised on the premise that the petitioner was on deputation abroad, whereas A.C.Rs, of the respondent No,3 were raised for the period 1989 to 1992 being the period on which respondent No,3 was on deputation. We further find that quantification formula applied to calculate the threshold of the petitioner was (6 x b) + (4 x a), whereas in the case of the respondent No,3 formula applied for quantification was (5 x c) + (6 x b) + (2 x a). We further find that the Board had on 30-1-1996 not considered the petitioner fit for promotion on the ground that he had not acquired the threshold marks in the process of quantification but if A.C.Rs, of 1993 and 1995 were to be included, then he could have achieved much more marks than what are required for fitness in order to be promoted to BS-20. On the other hand, we find that on the very day i,e, 30- 1-1996, the respondent No,3 was considered along with the petitioner and was declared fit for promotion although he was lacking training of N.I. P.A. Which is a mandatory requirement under the Rules for the age group to which the respondent belongs being below the age of 56. We further find that in the light of section 22(2) of the Civil Servants Act, the petitioner could not be directed to approach the Service Tribunal, though very reluctantly, we have exercised our jurisdiction for the reason that in the instant case both the petitioner and respondent were found to be eligible, hence it is not a case of eligibility. In so far as the question of adequate remedy being available, the same we find to be unavailable in the instant case, and therefore, this Court could exercise jurisdiction.
39. We therefore find that respondent No,3 was declared fit for promotion though lacking his N.I.P.A.
40. Training on the date when a decision for such promotion was taken by the competent Authority.
41. We further find that two marks of the petitioners quantification for adverse A.C.Rs, 1976 and 1979 had become void yet the same were deducted and A.C.Rs, 1989 and 1992 were not required to be included in the quantification of the respondent No,3 who was at the relevant point of time on deputation. In order to secure the ends of justice, suppress the mischief, and advance the remedy, we feel that the respondents were required by law to include A.C.Rs, of 1993 and 1995 in quantification in respect of the petitioner. They were further required to add two marks for serving P.A.F. Academy, Risalpur, and were required to apply the same formula for quantification to calculate the threshold and not to apply different formulas in respect of the petitioner and the respondent No,3.
42. ' Our attention has also been invited to a reported judgment PLD 1994 SC page 539 (Muhammand Anees and others v. Abdul Haseeb and others) wherein distinction between eligibility and fitness has been pointed out in terms like question of eligibility relates primarily to the terms and conditions of service and their applicability to the civil servants concerned and therefore, the Tribunal would have jurisdiction, and whereas the question of fitness has been laid down by the Supreme Court of Pakistan to be a subjective evaluation on the basis of objective criterion where substitution for an opinion of the competent Authority is not possible by that of a Tribunal or of a Court and, therefore, the Tribunal has no jurisdiction on the question of fitness as such, it is the Tribunal who has jurisdiction to go into the question of eligibility being a term of service, but on the.
43. Question of fitness it has no jurisdiction as it is a matter of subjective evaluation on the basis of objective criterion which cannot be substituted by the Tribunal or the Court. We are also mindful of the fact that the right to be considered for promotion where person is eligible for promotion, is a vested right but if the eligible person is not considered for promotion, one person not otherwise qualified under the rules is .Promoted illegally or against their rules then the aggrieved person can enforce his right to be considered for promotion or object to the person not qualified for promotion being promoted by invoking the Constitutional jurisdiction. Since such an issue would not fall within the purview of the Service Tribunal. Mala fides are apparent and it is in these circumstances that jurisdiction is being exercised by us.
44. ' Keeping in view PLD 1978 Karachi page 703 (Muttaqi Hussain Rizvi v. Province of Sindh) duly approved by a Full Bench of this Court PLD 1981 Karachi page 290 (Abdul Bari v. Government of Pakistan) at page 297 and also being mindful of the aspect that it is only the competent Authority who could form an opinion in relation to the fitness of a person to be promoted and we cannot substitute our opinion to the opinion of the competent Authority, nor can any Tribunal substitute its opinion in relation to the fitness of a person. We would, therefore, declare the impugned notification of promotion of the respondent No,3 to be illegal, unlawful and of no legal consequence, and direct the respondent to reconsider the question of fitness of the petitioner and the respondent No,3 within a period of one month from the date of receipt of this order.