ROSHAN ALI MANGI (MEMBER).---Appellant Dr. Ali Akbar Dhakan has challenged, by way of this appeal, the Notification, dated 21-6-1997 issued separately whereby his junior colleagues M/s Rasheed Akhtar Chughtai and Mukhtar Nabi Qureshi, have been promoted to the post of Deputy Governor, State Bank of Pakistan, and he was ignored. Having been aggrieved by the said order, he preferred the departmental representation on 8-7-1997. To which a response was made vide letter, dated 17-7-1997, whereby he was advised to submit his appeal to respondent No,1. Accordingly he submitted his departmental appeal to respondent No,1 on 9-8-1997. Failing invoking any response even after the passage of two months, he has filed present appeal before the Tribunal.
2. The background of this appeal is that, the appellant was initially appointed as a Assistant Director, in the State Bank of Pakistan as on 16-4-1975, thereafter, he was promoted as Deputy Director on 23-7-1977, Senior Deputy Director on 1-7-1984 and Director on 1-7-1989.
3. The appellant was ignored, while the respondent No,3 was promoted as Executive Director in 1992, although he was senior to him.
4. This was probably due to the fact, that the appellant was deputed to the Federal Government on 30-9-1990 and repatriated in March, 1992. During this period of his tenure with the Federal Government some allegations were levelled against him when the meeting of the Central Board of Directors was held on 23-1-1993, the respondents Nos.4 and 5 who were junior to appellant were also promoted to the post of Executive Director. This time also the appellant was not considered for promotion due to the pendency of the enquiry.
5. Aggrieved by the promotion of his juniors he agitated by way of departmental appeals, dated 30-6-1992, 26-10-1993 and 21-2-1994 respectively. Ultimately the appellant was also promoted to the post of Executive Director on 17-5-1994. This was obviously due to the fact, and also admitted in the minutes of the meeting held on 1-5-1994, that said allegations did not have much force.
6. When, the cases of promotion for filling the 3 vacant posts of Deputy Governors were submitted to the Ministry of Finance Le. respondent No,1, the appellant was shown at Serial No,3, although he was the senior most M/s. Mukhtar "Nabi Qureshi and Rashid Akhtar Chughtai respondents No,3 and 4 respectively were shows senior to the appellant. And against the name of the appellant the words" enquiry against him" were written in addition to some other adverse remarks, which had never been communicated to the appellant ever.
7. The result was, that Respondents Nos.3 and 4 were promoted to the post of Deputy Governor and the appellant was ignored, probably on the basis of previous allegations although, the said allegation did not have any force, and despite them he was promoted to the post of Executive Director.
8. Although, no notification of the promotion of respondents Nos.3 and 4 as Deputy Governor was issued by the Ministry of Finance, yet the Governor State Bank issued a premature office order of their promotion with his own signature on 20-6-1997. The actual notification by the Ministry of the Finance was issued on 21-6-1997. This was clear indication to which side, the Governor of the State Bank was inclined to.
9. The appellant has taken following grounds:--
(i) that impugned notification is illegal, unlawful and based on ulterior motives;
(ii) that the recommendations made by the respondent No,2 are based on mala fide, to benefit the respondents Nos.3 and No,4. As such the appellant has-been discriminated against;
(iii) that the appellant has in, fact been victimized as his experience and qualification should have been considered, as it is a technical job, A.C.Rs, should not have been the sole criterion;
(iv) that appellant was the senior most. This has been admitted even the learned members of the Board, therefore, his case should have been considered sympathetically;
(v) that there are three posts of Deputy Governor in the State. Bank of. Pakistan, whereas only two posts have been filled up. Against that post, the appellant could be considered.
10. With these submissions, it has been prayed that the impugned notification be set aside, the appellant be restored to his original seniority and direct the State Bank to consider his case for promotion with effect from the date his juniors were promoted to the post of Deputy Governor with all consequential benefits.
11. The comments have also been filed on behalf of the respondent No,1 . It has been stated that appeal is not competent, valid and maintainable, and therefore, be dismissed in limine summarily on the grounds:-- (i)that the disputes raised in the appeal are outside the scope and jurisdiction of the Federal Service Tribunal mainly as it relates to the past and closed transaction and are hit by laches and limitation; (ii)that the language used is intemperate and impolite against the superior officers; (iii)that appeal relates to promotion to a selection post and that no appeal lies if the incumbent has not been found fit for promotion;
12. On the merit, it has been stated that the appellant was not considered in the Central Board meeting held in Islamabad on 4-5-1992, while he was serving on deputation as Managing Director, Small Business Finance Corporation, Islamabad as some serious allegation were leveled against him.
13. It has been alleged that the appellant slept over:--
(a) Since 30-6-1992 in respect of promotion of respondent No,3.
(b) Since 26-10-1993 in respect of promotion of respondent No,4
(c) Since 21-2-1994 in respect of the promotion of respondent No,5.
14. The seniority of the respondents Nos.3 to 5, therefore, cannot be agitated in this appeal which it is barred by limitation and cannot be the subject-matter of agitation in this appeal.
15. It has been admitted that appellant was promoted i to the post of Executive Director on 17-5- 1994. However, it has been contended that he was already superseded.
16. Any mala fide, has been denied. It has also been denied if any undeserved recommendations or remarks of adverse nature were written against him as alleged by the appellant.
17. It has been admitted that in the list of candidates for promotion to the post of Deputy Governor the appellant was shown junior to the two other hid Akhtar Chughtai respondents Nos. 3 and 4.
18.With these submissions, it has been prayed to dismiss the appeal.
19.We have heard the parties and examined their arguments and also perused the record, before us. We give below a comparable position in respect of the appointments and promotions earned by the appellant and the Respondents Nos.3, 4 and 5:-- Appellant Respondent No.3 Respondent No.4 Respondent No.5 Appointment as Assistant Director16-4-1975 3-2-1981 4-3-1982 4-3-1982 Promotion as Dy.
Director23-7-1977 3-2-1984 22-10-1984 12-10-1984 Promotion Sr. Dy.
Director1-7-1987 1-7-1988 1-7-1988 1-7-1988 Promotion as Director1-7-1989 1-7-1991 1-7-1991 1-7-1991 Promotion as Executive Director17-5-1995 6-5-1992 24-1-1993 24-1-1993 Promotion as Deputy Governor-- -- 21-6-1997 21-6-1997
21. From the above statement it is obvious that the appellant was appointed as an Assistant Director earlier than the three respondents. He was promoted to successive grade earlier than the respondent. This clearly shows that, the appellant's performance must have been up to the mark i,e, why he earned the promotion in successive higher grades. It was the promotion to the post of Executive Director, that his three respondents got promotion, whereas the appellant was not considered, pending the enquiry into the allegations leveled against him during period he was on deputation as Managing Director. This has been admitted by the respondent department vide their comments, that his case of promotion was not considered due to the pending enquiry against the appellant, when case of promotion of his junior colleagues i,e, respondents was considered in a meeting held on 4-5-1992, and he was not promoted. Although, the contention of the respondents was that the appellant did not agitate against the promotion of his junior colleague i.e Respondent No,3, however, the record shows, that the appellant made a representation against the promotion of respondent No,3, on 30-6-1992. As such the objection of the respondents stands rebutted. The record further reveals, that the appellant also agitated by way of representation made on 26-1- 1993 and 21-2-1994 respectively when the respondents Nos.4 and 5 were promoted to the post of Executive Directors on 24-1-1993. The appellant's efforts bore fruit, when a meeting was held on 23- 1-1993 at Lahore (the copy of relevant extract of the minutes of the meeting is placed on the record), the appellant was promoted.
22.A copy of an extract from minutes of the meeting of the Central board held on 23-1-1993 at Lahore (copy placed on the file) reveals that, a principle was decided, which reads as:-- "Board observed that consideration should not be given to any enquiries which may be pending against an officer until the charges were established and proved after due enquiry.
23.In this meeting M/s. Muhammad Mustafa Khan Khaishgi and Rashid Akhtar Chughtai were recommended for promotion and there is no mention of the appellant, whether or not, his case was considered for promotion. In terms of above decision the case of the appellant should have been considered, pending the result of his enquiry. However, the said two respondents were promoted on 24-1-1993. The appellant also agitated against the promotion of the two above mentioned respondents by way of filing appeals on 26-10-1993 and 21-2-1994 respectively.
24.The later earnest show that the appellant's case of promotion was discussed in Board meeting held on 17-5-1994 at 5 a.m. The relevant extract is reproduced below:-- "That, Dr, Ali Akbar, M. Dhakan was the senior most among the officers indicated in the list, but he had been superseded, in the past by his juniors. He also brought to the attention of the Board certain accusations against him by the Government during the period of his deputation as Managing Director, Small Business Finance Corporation. The Chairman explained that Bank enquiry about these charges had not been completed and that considerable time has passed since his repatriation to the State Bank. The only charges that had been proven so far were those investigated by the Government. In this connection Director Qazi M. Alimullah stated that he had examined the charges in the Ministry against Dr. Ali Akbar M. Dhakan and had not found them to be too forceful. The Board after due consideration of all the relevant facts decided to include Dr. Ali Akbar M. Dhakan among the candidates eligible for promotion."
25.From the above extract, it comes out clearly that the charges levelled against the appellant did not have much force, as brought out by Qazi Alimullah, who was the then Secretary Finance, and superior of the appellant, while he was on deputation to that Ministry. And the Board after finding him eligible for promotion recommendation his promotion. Ultimately he was promoted to the post of Executive Director on 17-5-1995.
26.In its earlier meeting, the Board of Directors, considered the case of appellant's promotion, but due to pending enquiry his case was not considered. This was the clear case of deferment. It is a settled law, that when an enquiry is pending against a civil servant, his case of promotion is deferred, till its findings. In case, the civil servant is absolved from the allegation, he gets promotion, and seniority with effect from the date his juniors are promoted.
27.From the statement of Qazi Alimullah who examined the charges levelled against the appellant, it appears, that there was no force behind those allegations. And it was due to reason, that after finding him eligible for promotion, he was recommended and promoted to the post of Executive Director.
28.We have waded through the record before us, but we failed to find out any document, to the effect that the appellant was ever superseded, as was claimed by the learned counsel for the respondent. We asked him to produce any document to support his stand. But he could not produce any document before the Bench. Even otherwise, there is nothing adverse on the record to become the cause of his supersession.
29. In view of the promotion to the post of Executive Director, he should have been given seniority from the date of the promotion of his immediate junior. But this was not done by the department.
Now they come and say, that he did not agitate against that and slept over the matter thereby caused his right to get seniority time-barred. True, he slept over the matter. But, is it not the responsibility of the department to give the right to its employee, when it accrues to him ? Should the civil servant every time come with beggars bowl, before the authority and beg for every right? If he does not come, then his right be killed on the altar of technical ground of limitation. The superior Courts have held in so many cases, that if thete is some material point the appeals should, not be killed on the technical grounds. This is an Islamic country where Islam is professed. And Islam pleads to give the right to the individual automatically without being begged be one. We, however, condone such a delay if any.
30.It is our apprehension, that appellant was not given the seniority c wilfully, so that he should remain junior to the respondents who are made ' senior to him, so that they could be promoted to next higher posts. This gets the support from the statement given above in some para. which shows, that appellant was appointed much earlier than the respondents but his, promotion was made slower than that of his respondents. The successive promotion of the appellant shows, that his record must have been upto the mark i,e, why he got successive promotion and that at no stage, he was superseded. Of course due to the pending enquiry he was not considered for promotion. However, when Qazi Alimullah pointed out, that allegations made against him did not have much force, then he was recommended and promoted. On his promotion he should have been allowed the pro forma promotion and seniority w,e,f, date his juniors were promoted as his case was that of deferment rather than of supersession.
31.The comments given in Paragraph 8 reads as:-- "the position shown in the list of the candidates for promotion to the post of Deputy Governor that appellant had to be shown junior to the two other. Executive Directors i,e, Mr. Mukhtar Nabi Qureshi and Mr. Rashid Akhtar Chughtai respondents Nos. 3 and 4, since this was the factual position."
32.It was not the factual position, as given in the above extract, we get, the impression that, the case only of two candidates were to be presented before the Board, hence position of the appellant was shown juniorAnd to achieve this objective, the appellant was denied his due seniority and pro forma promotion after his promotion to the post of Executive Director, so that, he should remain junior, to justify the promotion of the two said respondents. There appears mala fide intention on the part of the respondent as such.
33.The learned counsel for the respondent brought out before the Bench that, the post of the Deputy Governor is a selection post, and is to be filled up by direct recruit. On the contrary, the same respondent as well as the Board, has used the word 'promotion'. Even otherwise the appointments are also made through promotion. Above all, although the learned counsel stressed, that even the person from the street can be appointed as Deputy Governor as according to him it was a direct selection post, nevertheless he did not produce before the Bench, any such precedent.
34.We are of the view, that such an appointment can be made through promotion and the two said respondents were appointed through promotion. The learned counsel of the respondent gave, the impression that the two respondents were promoted on the basis of merit, of which, the main ground was the A.C.R. What in fact, he has referred to, was that the A.C.R. of the appellant were not as good as that of the respondents. We have given the matter our serious thought, we come to the conclusion that the job of the Deputy Governor was of technical nature. In such a situation only A.C.R. are not the sole criterion under the law, the civil servant's experience and other things are also to be considered.
35.The learned counsel for the appellant produced the letter, dated 19-11-1997 of the Ministry of Finance in response to his departmental appeal which reads as:-- Subject REPRESENTATION AGAINST THE PROMOTION OF DEPUTY GOVERNORS.
Dear Sir, Please refer to your Letter No,PD (HRD-3)/PF-842/6571 of 1997, dated the 8th November, 1997 on the above subject.
(2) The case of Dr. Ali Akbar M. Dhakan's seniority of Executive Director is to be decided by State Bank of Pakistan/its Central Board of Directors, State Bank of Pakistan is, therefore, advised to first settle his seniority case. As far as his appointment as Deputy Governor is concerned, it is prerogative of the Government to appoint any suitable person under State Bank of Pakistan Act, 1956. Appointment of Dr. Dhakan as Deputy Governor (Policy) can also be considered after settlement of his seniority case and on the recommendations of Governor, State Bank of Pakistan, as was done in the cases of present two Deputy Governors."
36.It is clear from the above letter, that Ministry of Finance has advised the State Bank to settle his issue of seniority and thereafter, consider his promotion to the post of Deputy Governor as it is prerogative of the Governors, as was done in two other cases.
37.In the light of above discussion and the abovementioned Finance Division letter, we accept the appeal and direct the respondents to allow the appellant his seniority and pro forma promotion w,e,f, the date of promotion of the junior with all consequential benefit and place his case of promotion H for consideration of the competent Authority. According to the appellant, there is still one post of Deputy Governor, vacant. He could be considered against it if it is vacant.
38.There is no order as to costs. Parties be informed.