ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---Briefly the facts of this appeal are that the appellant, Mr. Zafar Hussain and Mr. Zaffar Ali Khan, earlier filed Appeals Nos. 284(R) of 1994 and 278(R) of 1994 respectively, against the order whereby they were superseded and respondent, Mr. Humayun Ahmed was promoted as Deputy Draftsman (B-19). The main point in these appeal were that since the post of Deputy Draftsman was a technical post falling in the Specialists Cadre whether the quantification formula was strictly applicable to the technical post or not. This position was visualized by the Tribunal in both appeals and the Law and Justice Division clearly admitted in their comments that the post of Deputy Draftsman was a technical post. Looking to this legal position and view of Ministry of Law and Justice, we remanded the case to the Secretary, Law and Justice Division by judgment dated 6-10-1994, to review the position for consideration of promotion of appellants. Respondent, Mr. Humayun Ahmad was not satisfied with this judgment and he filed Civil Appeals Nos. 542 and 543 of 1994 in the Supreme Court but leave to appeal was not granted and the petitio,is were dismissed vide judgment dated 12-2-1995. Finally, the Law and Justice Division made a reference to the Establishment Division to place the case of the appellant, Zafar Hussain, only before the CSB-II for reconsideration. Perhaps Mr. Zaffar Ali was promoted as he is not before us. The Board in its meeting held on 21-11-1995 considered the case and observed that minimum thresholds are one of the vital conditions for consideration of promotion cases and is consistently applied in all such cases and further observed that since the promotions of the officers already stood actualized with effect from 8-3-1994 and there being no other vacancy of Deputy Draftsman (B-19), there was no cogent reason to review the earlier decision which already stood implemented. The recommendations of the Board were accepted by the Establishment Division and the appellant was informed. The appellant filed departmental appeal which was not responded and ultimately he has once again filed this appeal before the Tribunal on 7-8-1996.
2. We have heard the appellant, who appeared in person. His case is that the Tribunal in its judgment in Appeal No, 284(R) of 1994, decided that the post of Deputy Draftsman was a technical post and the quantification formula was not strictly applicable in the case while considering the case for promotion. It is argued that the judgment of the Tribunal was maintained by the Supreme Court but in spite of that on the same formula, on the basis of which he was earlier superseded, has been again followed. Therefore, the recommendation of the C.S.B. is clear violation of the judgment of the Tribunal as well as the Supreme Court; because the case was remanded by the Tribunal holding that it was a technical post and it was incumbent upon the C.S.B. to have reconsidered the case in the light of judgment of the Tribunal which was maintained by the Supreme Court. It is submitted that injustice has been done to him as a far junior person who was a favourite/relative of someone, was illegally promoted, having hardly service of 5/6 years, to the post of Deputy Draftsman, in spite of the fact that the appellant had rich experience and being senior, having more than 20 years' service, had been ignored. It is submitted that he was granted move-over in B-19 and there is nothing adverse in his A.C.Rs,
3. The Section Officer, Law and Justice Division has placed real facts on the record and submitted that the case, in pursuance of the judgment of the Tribunal, was processed through the Establishment Division, therefore, compliance of the judgment has been made but the Board did not recommend the appellant for promotion. He stated that the Law and Justice Division have already stated in their comments that the post of Deputy Draftsman is a technical post. The departmental representative of the Establishment Division submitted that the case was placed before the C.S.B. and it was observed that since promotion of Mr. Humayun Ahmed had already been actualised, therefore, no action is required.
4. Mr. Humayun Ahmed, private respondent argued at length. He has challenged the jurisdiction of the Tribunal and submitted that the Tribunal cannot entertain this appeal. He argued that the appellant has made an application for contempt of Court proceedings in the Supreme Court which is pending and as such the Tribunal has no jurisdiction to hear the appeal. On merits, he argued that looking to the quantification formula the C.S.B. has rightly recommended that quantification formula is applicable in case of promotion of selection posts and after reconsideration of the case of the appellant, has rejected the stand of the appellant.
5. This is a second round of litigation of Mr. Zafar Hussain who is working as Assistant Draftsman in the Law and Justice Division. In the earlier appeal, he alongwith another colleague, Mr. Zafar Ali Khan, had challenged the order of his supersession due to less threshold while his junior Mr. Humayun Ahmad had been promoted as Deputy Draftsman (B-19) by the C.S.B. on the basis of quantification formula, although it was a technical post falling under the Specialist Cadre. The Tribunal by its judgment, dated 6-10-1994 remanded the case to the Law and Justice Division to place the case of the appellant before the C.S.B. for reconsideration in terms of judgment of the Tribunal that quantification formula was not strictly applicable to the technical posts. Respondent No, 4, Mr. Humayun Ahmad challenged the judgment of the Tribunal in Supreme Court by filing Civil Appeals Nos. 542 and 543 of 1994 but the petitions were dismissed and the concluding paragraph of the judgment reads as under: "5. It may be observed that the Service Tribunal in its impugned judgment has not disturbed the promotion of petitioner Mr. Humayun Ahmad or Muhammad Azam Warraich. The Tribunal observed that there being controversy as to the applicability of quantification formula in Zafar Ali Khan. Zaffar Hussain and petitioner Humayun Ahmad and Muhammad Azam Warraich, it was in the interest to remand the case to the Secretary, Law and Justice Division to review their cases. We feel that the above observations passed by the Service Tribunal are not improper. Besides, the Service Tribunal has not altered the promotion of the petitioner, Humayun Ahmad. We, therefore, see no reason to interfere with the impugned judgment. Leave to appeal in both the petitions is refused and the same are dismissed accordingly."
Thus the judgment of the Tribunal was maintained, and on remand, the Ministry of Law and Justice referred the case to Establishment Division for placing before C.S.B. The case had to be reconsidered by the C.S.B. in the light of the judgment of the Supreme Court and Tribunal, but the Board reiterated its earlier view and did not adhere to the verdict pronounced in this case.
Therefore, we have to examine the case in its entirety. No doubt, the posts in B-19 are selection posts, and under the Promotion Policy, following are the instructions for considering such cases for promotion: "III. Promotion to Selection Posts.
(1) Posts in basic pay scale 19 or higher are selection posts. Promotions to these posts are to be processed through the Central Selection Boards.
(2) In order to ensure that selection by these Boards does not amount to a mere elimination of the unfit the Establishment Division shall place a larger panel of eligible officers before the Boards.
Depending on the availability of eligible officers in a cadre, the number of officers to be included in the panel shall be as follows:
(a) For promotion to supervisory postsA minimum of 2 officers for every vacancy.
(b)For promotion to middle and senior management posts.A minimum of 3 officers for every vacancy.
(3) For selection posts, entries under "quality and output of work" and "integrity" in all the A.C.Rs, recorded on the civil servant during his service as an officer will also be quantified in accordance with formula given in the Addendum. These marks shall be a crucial factor in determining comparative merit of officers for promotion to selection posts.
(4) Posts carrying basic pay scale 19 are generally supervisory posts. Supervision can be effective only if the supervisor has the relevant experience. These officers are also required to make contribution to policy-making at the lowest rung of the policy-making hierarchy. For promotion to these posts, therefore, a civil servant must fulfil the following requirements:
(a) Qualifying service: possess 12 years' service as an officer subject to the provisions contained in Establishment Division O.M. No .1/9/80-R-II(A), dated 2-6-1983.
(b) Eligibility threshold: attain a minimum score of 60 marks in the C.Rs, in accordance with the formula given in the addendum.
(c) Qualifications: as prescribed by the relevant recruitment rules.
(d) Relevance of experience: possess, experience relevant to the functions of the post to which promotion is being made.
(e) "Quality and output of work" and "integrity" marks calculated in accordance with the formula in the addendum shall be important factors in determining the comparative merit of an officer."
Following the above quoted formula, the case of the appellant was examined and considered for promotion to the post of Deputy Draftsman (B-19) and on the basis of threshold, he was superseded. On the other hand, the contention of the appellant is that since it was a technical post, as conceded by the Law and Justice Division, these conditions/criteria was not to be applied in his case and his case fell under the 'Specialist Cadre'. The provisions laid down for Specialists Cadre are reproduced hereinbelow: "IV. Specialist cadres.---Parts II and III of the guidelines will not be strictly applicable to civil servants who are in specialist cadres such as doctors, teachers and professors, research scientists and incumbents of purely technical posts for promotion within their own line of specialism. The criteria for promotion in their case would continue to be the technical qualifications, experience and accomplishments (research, publications etc.), relevant to their specialism."
These provisions of law clearly indicate that in case of technical posts the quantification formula will not be strictly applicable and the criteria in these cases would be the technical qualifications, experience and accomplishments relevant to their specialism, meaning thereby that quantification of A.C.Rs, does not play a major role in consideration of promotion cases for the technical posts but the experience and specialism in the relevant field has got the edge. Admittedly, the appellant is working as Assistant Draftsman (B-18) since 1976 while respondent Mr. Humayun Ahmed had put in about 7 years' service in B-18, and it is clear that the appellant was senior having much long experience as compared to respondent Mr. Humayun Ahmed. We have also gone through the A.C.R. dossier of the appellant produced by the Law and Justice Division. The analysis of A.C.Rs, for the years 1990 to 1994 shows that the appellant has been graded as 'Good' in Overall grading of each part of each A.C.R. Part V (Pen picture) has also reported the officer to be "friendly", "good human" and "fine gentleman" with "pleasant" personality. In Part VI, it has been unanimous observation that the officer was "fit for promotion in his turn". So there was no adverse remarks nor was he found unfit for promotion. The grading in certain columns is "average" but, as finally laid down by the Supreme Court, the average report cannot be treated as adverse, whereas in the instant case the officer has been graded as good and fit for promotion, but he has been condemned. So the "good" grading has become worse than "adverse". The reflection of evaluation and assessm ent of the abovementioned reports clearly speak of the fact that the appellant has been found ' fit for promotion' by all the reporting and the countersigning officers and has been recommended for encouragement due to his long service and rich experience in the field.
Therefore, it was not fair on the part of the Central Seledtion Board to have reiterated its earlier view when the Tribunal as well as the Ministry of Law and Justice, in clear terms, had held that the post of Deputy Draftsman being a technical post, the normal quantification formula was not applicable and his case was to be considered in the light of the provisions relating to ' Specialist Cadre'. While considering the case of the appellant, the Board observed as under: "5. The Board discussed the issue at length and observed that the laid down minimum thresholds are one of the vital conditions for consideration of promotion cases and is consistently applied in all such cases. The Board further observed that promotions of the recommended officers already stood actualized with effect from 8-3-1994 and there is no other vacancy of Deputy Draftsman (B- 19) available in that Division.
6. In view of the above, the Board opined that there was no cogent reason to review the earlier decision which already stands implemented. "
The ground which prevailed with the Board was that the minimum threshold was a vital condition for consideration for promotion in such cases; and that since the promotion of respondent Mr. Humayun Ahmed had been actualized with effect from 8-3-1994 and there being no other vacancy, there was no cogent reason to review its earlier decision. We respectfully do not subscribe to such kind of argument as a wrong done can always be undone, and it is a settled law that the Tribunal can set aside any order of promotion or A supersession made contrary to the provisions of law. The Board is a 0 recommendatory body and its recommendations are not binding as the discretion lay with the competent Authority to accept or reject the same. After the judgment of the Supreme Court, on remand of the case to the Central Selection Board, there was limited scope for them to have examined the case in terms of judgment of the Tribunal and the Supreme Court, which the Board failed to observe. It is also regretted that the Establishment Division did not take note of the judgment of the Supreme Court and agreed to the recommendations of the Board. In these circumstances, we are not satisfied that case on remand has been processed in accordance with law and the appellant could not be deprived of his legitimate right of promotion against a technical post of Deputy Draftsman by applying a wrong criteria C and by misconstruing the provisions of rules, when the appellant was fit for promotion and had longer service and experience in the relevant field as compared to respondent Mr. Humayun Ahmed.
6. Respondent No, 4 Mr. Humayun Ahmed raised legal objection that the Tribunal has no jurisdiction to go into the question of fitness for promotion. This objection was also raised in earlier round of litigation in Appeals Nos. 278 and 284(R) of 1994 and was dealt exhaustively on the strength of Supreme Court judgments, and we reiterate our earlier view, and repel the objection.
7. For the foregoing reasons, we allow this appeal, set aside the impugned order dated 5-3-1996 and the findings of the Central Selection Board dated 21-11-1995 and direct the respondent No,1 to place the case of the appellant before the Central Selection Board for consideration otherwise than the quantification formula, in the light of the above observations. Compliance be reported within two months.