' AFTAB AHMED, (MEMBER).---The facts giving rise to the present appeal by Mr. Hazoor-ul-Islam Abbasi, a retired employee of Habib Bank Limited, are that on a disciplinary action for negligence/fraud the appellant was charge-sheeted by the Zonal Chief, Abbottabad, on 27-9-1982.
This charge-sheet culminated in the issuance of order of dismissal from service dated 17-6-1984.
Later on the recommendations of Review Board constituted by Government in 1988 the dismissal order was withdrawn and the appellant was reinstated into service. After reinstatement the appellant approached the National Industrial Relations Commission (N.I.R.C.) for back benefits and consequential promotion. Single member of the N.I.R.C. Accepted the petition and the order was also confirmed by Full. Bench of the N.I.R.C. Vide order dated 8-5-1996. On a writ filed by the bank against Full Bench order High Court vide order dated 16-10-1997 declared the N.I.R.C. Order without lawful authority and of no legal affect. While accepting the writ the Court however, observed that the bank may consider the appellant for promotion in accordance with law. In compliance with the orders of the High Court, the appellant was considered for promotion by the bank but was found not fit for any promotion. Accordingly the request of the appellant for retirement under the Golden Handshake Scheme was accepted and the admissible dues were paid to them vides order dated 13-12-1997. The appellant filed appeal with the President, Habib Bank Limited against the said order/letter of 13-12-1997 which was replied to vide letter dated 24-3-1998 that non-promotion of an employee was not appealable. The appellant has now come up in appeal against the letter of H.B.L. Dated 13-12-1997 read with 14-3-1998 with the prayer that the respondent-bank be directed to consider the appellant for promotion as Senior Vice-President w,e,f, the date of his eligibility with all consequential benefits.
2. Arguing the case of the appellant Mr. S. Kazim Hussain Kazmi, Advocate submitted that the respondent-Bank had failed to consider the promotion of the appellant in accordance with the promotion policy of the bank. It was submitted that the appellant had good service record and had also been awarded commendation certificate of outstanding field performance during 1995 and as such deserved to be promoted to higher grade upto the rank of Senior Vice-President.
3. The bank was defended by Mr. Shahid Anwar Bajwa, Advocate. Mr. Bajwa made the following points for consideration:--
(i) The appeal was barred by limitation;
(ii) The appeal was not maintainable as no term and condition of appellant's service had been violated; and
(iii) That the Tribunal has no jurisdiction to judge the suitability of a person to hold a particular post and that this was exclusively within the competency of the authority to determine the suitability of an employee to be promoted to a particular grade/post.
4. Elaborating his contentions Mr. Bajwa submitted that on 13-12-1997 the appellant informed about his unfitness for promotion and there being no provision for any appeal against the decision of the authority to promote or not to promote, appeal to the Tribunal should have been filed within 30 days of the receipt of the said order. The service appeal having been filed on 25-4-1998 was absolutely barred by limitation. On the second point learned counsel relying on the Supreme Court's decision in 1998 PLC (C.S.) 674 submitted that terms and conditions relatable to the prospects of promotion, do not form part of the service condition of the post from which promotion is to take place but they form part of the term and condition of higher post and that mere eligibility for promotion is not a term and condition of service for seeking promotion. Mr. Bajwa on the last leg of his arguments pleaded that it was beyond the jurisdiction of the Tribunal to sit over the assessm ent of the competent Authority to judge the suitability of a person to be promoted to a particular post/grade.
5. Arguments heard and record perused.
6. Regulation 40 of H.B.L. Staff Service Regulations provides right of appeal to an employee on whom any of the penalties given in Regulation 37, is imposed. There is no provision of any appeal against denial of promotion. In such a situation the employee is required to approach a legal forum within the time prescribed by law. In this case the promotion was refused and intimation given to the appellant vide letter dated 13-12-1997. There being no provision for review against such order, the appellant was required to approach the Service Tribunal within 30 days of receipt of letter. The present appeal having been filed on 25-4-1998 is as such time-barred and is liable to be dismissed on this score alone. However, we have also examined merits of the case and would discuss them hereunder.
7. The order of N.I.R.C. Directing payment of back benefit and consideration for promotion was set aside by the High Court in writ jurisdiction. However, the bank still in compliance with the observations of the Hon'ble High Court, considered the appellant for promotion. Minutes of consideration have been provided by the respondent-Bank. The competent Authority after examining the record did not consider the appeal fit for promotion and we do not find any reason to disagree with the competent Authority.
8. The net result of the above discussion is that the appeal fails both on merits and limitation and is hereby dismissed with no order as to costs. Parties be informed.
Appeal dismissed.
2062 PLC (C.S.) 1468 [Sindh Service Tribunal] Before Justice (Retd.) Abdul Ghani Shaikh, Chairman and Ghulam Sarwar Khero, Member-I SHAH MUHAMMAD ABBASI and others versus CHANCELLOR, SHAH ABDUL LATIF UNIVERSITY, KARACHI and others Appeal Nos. 87, 91 and 92,of 1998, decided on 13th December, 2001.
(a) Sindh Service Tribunals Act (XV of 1973)- ----S. 4---Shah Abdul Latif University Act (XI of 1986), First Statute, S.6---Promotion--- Appellants/civil servants had challenged promotion of respondents/opposing civil servants on the ground that Selection - Board before whom cases of respondents for promotion were placed, was not competent as per S.6 of Shah Abdul Latif University Act, 1986--Selection Board in respect of respondent must have consisted of five members according to S.6(3)(b) of Shah Abdul Latif University Act, 1986, but meeting of Selection Board in which case for promotion of respondents was placed, was attended by only three members---Very Selection Board being not competent under law, its recommendations with regard to promotion of respondents, were illegal, and coram non judice---Orders of promotion of respondents, were set aside, in circumstances. [pp. 1470, 1471] A & C
(b) Administration of justice--- ----If law had provided that a particular thing was to be done in a particular manner/way, it was to be done in that manner or not at all. [p. 1471] B Sajjad Hussain Kolachi for Appellants.
S. Zaheer Hassan for Respondents.
Private Respondents in three appeals are present in person. Date of hearing; 26th October, 2001.
' JUSTICE (RETD.) ABDUL GHANI SHAIKH, (CHAIRMAN)---We have heard the arguments of learned counsel for the parties in all the three appeals on 17-8-2001 at Sukkur, as per diary in Appeal No,87 of 1998 but as the private respondents were not heard the matter was fixed for rehearing on 26-10- 2001. The appellant in Appeals Nos.87 and 92 of 1998 stated that they adopt the same arguments advanced by their counsel earlier. In Appeal No,91 of 1998 the appellant requested for time to bring his Advocate at Karachi which request was allowed and he was given time of 10 days to bring his advocate to argue out the matter if so desired but none appeared within 10 days nor any request was made for extension of time. However, Advocate for official respondents made statement that he adopts the same arguments advanced by him earlier, resultantly we decided to dispose of all three appeals with common judgment as facts and law involved in these appeals are common, therefore, the same are disposed of through this common judgment.
' The appellants are employees of Shah Abdul Latif University, Khairpur Mir's where they are working in different grades, appellant Shah Muhammad Abbasi is working in BPS-18, while appellant Jan Muhammad Bhutto and Mir Muhammad Chouhan are working as Lecturers in BPS-17. They have challenged the promotions of M/s Noor Muhammad Memon (respondent No,4 in Appeal No,87 of 1998) and Barkatullah Qureshi (respondent No,5 in Appeals Nos.91, 92 of 1998) in BPS-19 and BPS-18 respectively.
' The learned counsel for the appellants has contended that the Selection. Board before whom the cases of the private respondents were placed for promotion was not completed as per section 6 of the First Statute of Shah Abdul Latif University Act, 1986 and that since the very constitution of Selection Board was not in accordance with law, the promotions Of the private respondents are also illegal, void and nullity in the eye of law as such the same are liable to be quashed.
' In rebuttal, learned counsel for the official respondents has argued that out of 5 members of the Selection Board, 3 members were very much present and so for remaining 2 members are concerned they by that time were not appointed and that since no quorum is required for the meeting of Selection Board their recommendations are neither illegal nor invalid. He added that Syndicate of the University is the appointing authority of the members of the Selection Board and that the Syndicate itself approved the recommendations of the Selection Board, therefore, the cases of the promotions of private respondents attained finality and cannot be called in question before this Tribunal.
' We have considered the above legal submissions and have gone through the material placed before us so also the first statute of Shah Abdul Latif University. In order to arrive at a judicious decision it is advantageous to produce section 6 of the Statute, which reads as under:-- SELECTION BOARD
6. (1) The Selection Board shall consist of;
(i) the Vice Chancellor (Chairman),
(ii) the Chairman or a Member Sindh Public Service Commission to be nominated by the Chairman.
(iii) the Dean of the faculty concerned,
(iv) the Chairman of the Teaching Department concerned; and
(v) one Member of the Syndicate and two other men of eminence, to be appointed by the Syndicate, provided that neither of the three are employees of the University.
(2) The Members mentioned in sub-clause (v) of clause (1) shall hold office for two years.
(3) (a) Four Members shall form the quorum for selection of a Professor or an Associate Professor and three members for the selection of other Teachers.
(b) In case of Officers other than teachers the Selection Board shall consist only of Members at sub-clauses (i), (ii) and (v) of clause (1).
(4) No Member who is candidate for the post of which appointment is to be made shall take part in the proceedings of the Board.
(5) In selecting candidates for the posts of Professors and Associate Professors, the Selection Board shall co-opt or consult three experts in the subject and in selecting candidates foi other teaching posts, two experts in the subject concerned, to be nominated by the Vice-Chancellor from a standing list of experts for each subject approved by the Syndicate on the recommendations of the Selection Board and revised from time to time."
In the instant appeals M/s Noor Muhammad Memon and. Barkatullah Qureshi were promoted as officers i,e, Inspector of Colleges (BPS-19) and Secrecy Officer (BPS-18) respectively, therefore, Selection Board must be in accordance with section 6(3)(b) of the Statute. The Selection Board shall be consisted of 5 Members as under:--
(i) The Vice Chancellor (Chairman)
(ii) The Chairman or a Member of Sindh Public Service Commission to be nominated by the Chairman,
(iii) One Member of the Syndicate, and
(iv) Two other men of eminence, to be appointed by the Syndicate, provided that neither of the three are employees of the University.
' Admittedly, the meeting of Selection Board of the University held pn 2-11-1997 was attended by only three Members i,e,:--
(1) Prof. Dr. Bashir A. Shaikh In Chair
(2) Prof. Dr. Noor Muhammad Memon, Member Sindh Public Service Commission. Member
(3) Maula Bux Soomro, Retd. Divisional Superintendent of Railways. Member ' It is thus clear that 3 out of 5 Members had attended the meeting of the Selection Board held on 2-11-1997, the Selection Board was, therefore, not complete as per section 6(3)(b) of the Statute referred to above.
' The contention of learned counsel for the official respondents that by the time the meeting of Selection Board was convened, the remaining two Members were not appointed and that no quorum is required under the law, has no force. The fact that 2 Members were not appointed by that time does not mean that remaining 3 Members have full authority and power to recommend the promotion(s) of an employee of the University. As stated above, section 6(3)(b) of the Statute clearly provides that Selection Board in cases of Officers other than teachers shall consist of 5 Members, there is thus no question of quorum. The quorum requires for the purpose of selection of a Professor or an Associate Professor as per section 6(3)(a) and not for section 6(3)(b). It is a well- settled principle that if law provides that a particular thing is to be done in a particular manner/way, it is be done either in the same manner/or not at all.. The fact that Syndicate had approved recommendations of the Selection Board does not mean that the illegality made by the Selection Board has been legalised.
' In view of the above discussion, since the very Selection Board was not complete as required by law its recommendations are illegal, ab initio null and void, nullity in the eyes of law and corum non judice. Accordingly we allow these appeals and set aside the two notifications/orders dated 15-12- 1997 in respect of Promotion of M/s Noor Muhammad Memon (respondent No,4 in Appeal Nos.87 of 1998) and Barkatullah Qureshi (respondent No,5 in Appeals Nos.91 of 1998 and 192 of 1998). We also direct the official respondents to convene the meeting of Selection Board afresh as required by law.
If for any reason the remaining 2 Members are not yet appointed, the University is directed to appoint the same as early as possible and then to convene the meeting of Selection Board afresh for the purpose of consideration of promotions of the deserved employees/candidates, as per law.
' Announced in open Court Camp at Sukkur.
' Given under our hands and seal of the Tribunal this 13th day of December, 2001.