' ABDUL HAMEED KHAN KHATTAK (MEMBER).---This appeal is directed against various orders made by the respondents whereby many officers junior to the appellant were promoted to BPS.21 since 1984 and appellant was superseded.
2. Shortly stated facts to be culled from the memo. Of Appeal, parawise comments/objections placed on the record by the respondents and various other documents annexed thereto are that the appellant was appointed as Scientific Officer (BPS-17) in Pakistan Council for Scientific and Industrial Research Laboratory under the control of respondent No,2, in the prescribed manner on regular basis during the year 1962, she was promoted to BPS-18 subsequently and then to BPS-19 in 1978. It was during 1980 when her services were placed at the disposal of Pakistan Museum of Natural History as Curator in its Botanical Science Division for two years but on expiry of deputation period, she was formally appointed as Director (BPS-20) in Pakistan Museum of Natural History in the year 1982 after service of all the connections with her parent organization. Appellant claimed that she had become eligible for the post of Director-General (BPS-21) since 1984 being the senior most officer in the department but as a result of extraneous consideration she was superseded, again in the year 1990 she applied for a vacant post of BPS-21 but she was superseded and one officer junior to her was promoted. Respondent No,2 formulated the policy regarding grant of basic pay scales 21 and 22 to technical and professional officers and laid down the criteria for meritorious case as per Government policy but once again she was ignored as allegedly respondent No, 5 was nursing malice and illwill against her. In the year 1996, the Board of Pakistan Science Foundation decided to provide incentive to all officers of B17 and above to upgrade their posts who had completed 10 years service in the present scale but the appellant as usual was again denied this incentive and officers junior to her were placed in higher grade. She claimed that she was having numerous academic and professional achievements to her credit particularly the presentation of 40-original published research papers in national and international science journals with five books coupled with publication of many leaf-lets and brochures. In February, 1998 yet another group of six officers of BPS-20 working under respondent No,3 was granted B.P.S.21 ignoring the appellant against which she made representation but the same was rejected on 12-8- 1998, hence this appeal with the prayer that the promotion of various officers junior to her since 1984 to BPS-21 was illegal and the appellant prayed for being granted BPS-21 since 1984.
3. The above assertions were out-rightly opposed by the respondents who filed parawise comments. They raised legal objection of incompetency of appeal and the same being barred by time. With regard to merits it was maintained that her name for promotion to BPS-21 was being considered throughout but the Special Selection Committee did not recommend her due to non- fulfilment of the required thresh-hold i,e, 70 marks in A.C.R. Quantification for promotion to B.P.S.21 fixed by the Government. It was denied that any of the respondent was having' any malice or grudge against her or she was being discriminated being a female.
4. Arguments heard, record perused.
5. At the very out-set it may be pointed out that the appellant seems to have suppressed certain material facts from the tribunal i,e, she has not come to the tribunal with clean hands, in that, it is not for the first time that she has approached this Tribunal by means of the instant appeal rather the record is before us, the perusal of which reveals that she preferred First Appeal bearing No,428(R)of 1997 on 9-7-1997 which was dismissed in limine by this Tribunal on 1-8-1997 as being hopelessly time barred. Then she preferred Appeal No, 873 (R) of 1997 on 6-12-1997 which was got dismissed as withdrawn on 17-2-1998 and the present Appeal bearing No, 728(R) of 1998 was instituted on 9-9-1998, It is pertinent to note that in her above given first two appeals there were as many as six respondents including one Dr. S.R.H. Baqri, as Respondent No,6, but strangely enough said private officer was not impleaded at all as one of the respondents in the instant appeal although rest of five respondents were common in three appeals. Respondent No,6 was alleged to have been promoted sometime during the year 1996 although he was junior to her but for the reasons best known to her he was left out this time although he was also a necessary party. To crown this all, it is specifically given in para. No,9 of memo, of appeal that in February, 1998, six officers of BPS-20 working under respondent No,3 were granted BPS-21 ignoring the appellant against which she made representation which was turned down but one fails to understand as to how and why the said six officers although they were necessary parties, were skipped over and not impleaded as respondents, thus, this appeal can be A straight away dismissed on this legal score as suffering from non joinder of necessary parties, besides non-impleadment of Dr. S.R.H. Baqri.
What we gather is that the said promoted officers were deliberately ignored and not impleaded in the appeal for the obvious reason that present appeal against them was awfully time barred but in our considered view this was not the solution of the matter as the appellant could not legally be allowed to be exonerated of her failure to implead them as respondents and this was an insurmountable hurdle in her way which could not be easily ignored rather to be most apt it was one of the legal infirmity from which the appeal was suffering.
6. To us the next legal objection connected therewith which also knocks at the very basis of the present appeal is the objection of limitation raised by the respondents. As a resume of the above facts reveals that the appellant has assailed the promotion of all these officers to BPS-21 since 1984 and she has prayed for striking down by one stroke of pen all such promotions but it is not that easy matter as nobody could be legally allowed to challenge such orders of promotions after a lapse of about 14-15 years. Law supports the vigilant and not indolent. Limitation if allowed to commence, cannot be stopped. Her present appeal is hopelessly time barred to the extent of all those promotions which were done between the period from 1984 to 1997.
7. Yet another stumbling block in the way of the appellant seems to be the judgment dated 1-8- 1997 passed by this Tribunal thereby dismissing her appeal in limine as being time barred.
Admittedly she did not assail those findings of the Tribunal in the Hon'ble Supreme Court, thus, the order dated 1-8-1997 has attained finality and she cannot be allowed to reopen or reagitate that legal matter/ issue and the judgment dated. 1-8-1997 is binding on the parties, thus on this legal score as well, the present appeal must fail as being barred by the principle of res judicata as it transpired that Dr. Baquri was deliberately left out and not impleaded as one of the respondents in the present appeal simply to ward off the application of doctrine of res judicata but he being a necessary party, must have been arrayed as one of the respondents thus the present appeal shall be deemed as being hit by the principle of res judicata.
8. The present appeal also suffers from another legal short coming, i,e, it is incompetent in view of the provisions of section 4(1)(b) of Service Tribunal Act, 1973 as well as section 22 of Civil Servants Act, 1973 wherein it is specifically given that no appeal shall lie on matters relating to determination of fitness of a person to hold a particular post or to be promoted to higher post or grade.. We are not oblivious of the legal proposition that eligibility is a question with regard to which jurisdiction of the Tribunal has not been barred. The question of eligibility is relevant primarily to the terms and conditions of service and their applicability to the civil servant concerned whereas this Tribunal lacks jurisdiction to go into question of fitness of a civil servant for promotion as fitness introduces an element of subjective evaluation on the basis of objective criteria where substitution for an opinion of the competent authority is not possible for that of a Tribunal or a Court. It is in this background that the question of fitness or suitability for promotion has always been considered to be exclusively falling within the jurisdiction of the competent Authority not shared by the Court or the Tribunal exercising supervisory jurisdiction in respect of eligibility and qualification. On the question of eligibility and qualification, no such bar exists either in express words of section 4 of the Service Tribunal Act or even by implication.
9. In the light of above legal infirmities, although we are not called upon to further dilate upon the merits of the appeal, nevertheless, this time we would like also to advert to even merits of the appeal lest appellant feels dissatisfied for throwing out her appeal on mere technicalities.
10. In view of various orders available on the record made by the respondents thereby turning down the representations made by the appellant against promotion of junior officers to BPS-21, it stands manifestly established that even the case of the appellant for promotion was very much considered by the Special Selection Committee i,e, her eligibility was considered by the competent Authority but for various reasons she was not held suitable/fit to be promoted to BPS-21. The stress laid by the learned counsel for the appellant that she ought to have been preferred over junior officers at the time of promotion to BPS-21, cannot itself be considered as to be a lawful and valid reason in this regard as mere seniority does not count in this regard rather many other relevant factors are to be taken into consideration by the Selection Committee and it was the cumulative result of all such factors being considered by the Selection Committee that the appellant was not found fit for promotion.
11. Learned counsel for the appellant strenuously argued that the respondents miserably failed to consider the case of the appellant for promotion in its true legal perspective inasmuch as, according to him, promotion from BPS-20 to BPS-21 of technical and professional officers was not to be considered as ordinary promotion matter nor the formula of thresh hold of 70 marks quantification etc., was to be pressed into service in such like matters rather, according to him, such promotions were to be made in the light of the formula and the rules as engrained in Finance Division's O.M. Dated 7-4-1987, the relevant sub-clauses of which are reproduced as under: "2. The matter has, therefore, been reviewed in consultation with Establishment Division and with the approval of the Prime Minister the following principles and guidelines are laid down, in supersession of all instructions issued from time to time for processing the cases for the grant of scale 21 or 22 to professional and technical officers:--
(i) In specially meritorious cases, BPS-21 or 22, along with allowances and fringe benefits may be allowed with the approval of the Prime Minister, to technical and professional officers without requiring them to move from their technical posts where their expertise is particularly needed.
(iv) In specially meritorious cases, the officers of BPS-20 shall be considered only for the grant of scale 21. Scale-22 may be granted in meritorious cases to those officers who have served for at least 2 years in BPS-21.
(v)-- The grant of scale 21 or 22, as the case may be, shall be admissible to officers only once in his career.
(vi) Grant of scale 21 or 22 to the officer will be personal to him. There would be no need to upgrade the posts. He would, however, carry this higher scale in the event of his transfer to another post.
12. We have considered this aspect of the matter but here again we can say without any fear of hesitation that this O.M. Of Finance Division also cannot be said to be advancing the case of the appellant even an inch further for the simple reason that it is given in clear cut words in clause (viii)
(iii) of the same that: "(iii) His confidential reports should be good/very good with no adverse entry."
13. The above condition shall have to be fulfilled by the officer asking for promotion to BPS-21 but we are at pains to point out that here again the case of the appellant represents a bleak/poor state of affairs as a cursory glance over her A.C.Rs, ranging over last 22 years reveal without any scintilla of contradiction that she secured 15 average reports and only 7 good reports meaning thereby her failure to earn good/very good reports as laid down in the above condition has rendered her case for promotion to be unsuitable. The word 'average' does not figure in the above condition rather an officer who is being considered for promotion to BPS-21 must have earned good/very good reports and there is no room for average report to be countenanced in any of such report. In the case in hand as all the confidential reports of the appellant were falling short of the required standard i,e, good/very good hence she was rightly ignored and superseded. Even the above O.M. For all intents and purposes, does not altogether exclude the consideration of A.C.Rs, of the officers for the purpose of promotion to BPS-21 meaning thereby the above O.M. Has not given a good-bye to the consideration of A.C.Rs, of the officers at the relevant time, thus, when the appellant is at the verge of her retirement, there is even no remote chance being in a position to earn good/very good A.C.Rs, in near future but even if she happens to earn the same, it will not bring about any material change viza-viz consideration of her case for promotion as her past A.C.Rs, are hopelessly discouraging and consideration of the same cannot be skipped over.
14. The emphasis placed by her learned counsel on publication of certain books by the appellant, does not seem to hold any field/weight as she does not seem to be the sole author of the Books: {{URDU TEXT}} "Cultivated Trees, Shurbs and Climbers of Gardens of Pakistan Taxonomic Studies."
' As the former two books are also co-authored by Mr. Shahid Farooq and the latter two volumes by Toshiyuki Nakaike, meaning thereby Mr. Shahid Farooq, and Toshiyuki Nakaike were also co-authors alongwith the appellant of the above books. She also produced certain leaf-lets and research reports during the course of arguments but in our view these are not of enough value and expertise which are needed in the technical post held by her nor publication of the same can by itself provide a jump to her from BPS-20 as many other factors enunciated in the above O.M. Are to be considered by the Selection Committee.
15. For all the aforesaid reasons, the appeal fails on legal as well as factual plane and the same as such is hereby dismissed by leaving the parties to bear their own costs.
16. Copies of the judgment be sent to all concerned through registered post.