JUDGMENT NAZIM HUSSAIN SIDDIQUI, J.- This judgment will dispose of Civil Appeals Nos. 1599 to 1606 of 1999, in which common questions of facts and law are involved and the same are directed against the judgment dated 7.12.1998 of learned Federal Service Tribunal, Islamabad, whereby Appeal No. 124(L)/1980 filed by respondent No. 1, Hameed Akhtar Niazi, was allowed with the following observations: "After having considered all the material on record and the contentions of the learned counsel for the parties we accept the appeal filed by Hameed Akhtar Niazi with costs. He Was senior to Walayat Ahmed, respondent No. 2, who was promoted and given seniority in BPS-20 with effect from 4.8.1979. The appellant was eligible for promotion as he entered into Government service in Grade-I 7 on 1.4.1963 and promoted as Deputy Secretary on 9.4.1973. His name was required to be placed before the Central Selection Board, which was not done. He was subsequently promoted in BPS-20 on 17.8.1980. The appellant stated before us that he retired from service in BPS-21. His promotion in BPS-20 and BPS-21 indicate that there was nothing adverse against him, which could prevent him from 'promotion to higher grades, It is directed that the appellant shall be given ex - post facto proforma promotion in favours grades from the dates Walayat Ahmed, respondent No. 2, and other junior respondents were promoted. Due to revision of seniority, the pay and pension of the appellant shall be re-fixed and he would be entitled to pecuniary benefits. Necessary notification shall be issued within a reasonable time. Law has ben laid down in cases of the Province of the Punjab through the Secretary, Services and General Administration, Lahore v. Syed Muhammad Ashraf (1973 SCM R 304), Syed Sultan Shah v. Government of Baluchistan and another (1985 SCM R 1394), Mrs. Aqeela Asghur Ali and others v. Miss Khalida Khatoon Malik and others (PLD 1991 SC 1118), Abdul Jabbar Khan v. Government of Sindh through Chief Secretary, Karachi and five others (1996 SCM R 850) and Iftikharullah Malhi v. Chief Secretary and another (1998 SCM R 736) that a-civil servant who is entitled to be promoted from a particular date was, for no fault of his own, wrongly prevented from rendering service to the Federation in the higher post, such civil, servant shall be paid arrears of the pary and allowances of such higher post through proforma promotion or up-gradation arising from the ante-dated fixation of his seniority. Following the aforesaid decisions of the Honourable Supreme Court, we have given the above-mentioned direction for re- fixation of pay, pension etc. Of the appellant and his entitlement to pecuniary benefits."
2. Civil Appeal No. 1599 of 1999 has been filed by the Government of Pakistan through Establishment Division, while the remaining Appeals Nos. 1600 to 1606 have been preferred by appellants, Hamid Ahmed Qureshi, A.W. Kazi, Dr. Zafar Altaf, Javed Masood, Pervez Masood, Aminullah Chaudhry and Tariq Sultan respectively being aggrieved by the judgment delivered in Appeal preferred by respondent No. 1, Hameed Akhtar Niazi.
3. Vide order dated 13.12.1999, leave to appeal was granted in these matters. It is noted that on behalf o private appellants viz. In Civil Appeals Nos. 1600 to 1606 of 1999 it was urged that they were CSP Officers and when they were posted as Deputy Secretariats, they were already holding posts in BPS-18, therefore, their services in BPS-18 were to be counted, while fixing their seniority in the cadre of Deputy Secretary. It was also urged on their behalf that the post of Deputy Secretary was declared as cadre post and for promotion to this cadre post the requirement under Notification SRO No. 1238(I)/73, dated 21.8.1973 was that the person having 8 years' service, as Assistant Commissioner or SDO in the different CSP service, was eligible for appointment as Deputy Secretary. Also, it was urged that the rule, which was promulgated by the President of Pakistan- under Rule 3 of Civil Service of Pakistan (Composition and Cadre) Rules, 1954 Was altered through Office Memorandum dated 20.5.1974 issued by the Establishment Division. It was contended that statutory rule referred to above could not be changed through an Office Memorandum, It was further contended on their behalf that learned Tribunal had no justification to direct promotion of Hameed Akhtar Niazi in various grades from the date when Walayat Ahmed, who was respondent No. 2 in the appeal filed before the Tribunal, was promoted as it was beyond its jurisdiction.
4. The case of respondent No. t, Hameed Akhtar Niazi, before Tribunal was that he entered into the then Pakistan Military Land and Cantonments Service on the basis of the Competitive Examination held in June, 1960. He was transferred to the Central Government in President's Secretariat etc. And then to the Planning Division, on 14.1.1971. He was promoted as Deputy Secretary on regular basis on 9.4.1973 and posted in Establishment Division. The respondent No. 1 has stated that as a result of SRO No. 1237(I)/73, dated 21,8.1973, he became a Member of All Pakistan Unified Grades (A.P.U.G.).
Latter on Secretariat Group was constituted in APUG under O.M. No. 2/2/75- ARC, dated 12.4.1976.
Option was sought and he opted for the Secretariat Group.
5. According to the respondent No. 1, the Gradation List of Deputy Secretaries of the Secretariat Group was prepared in accordance with the provisions of Section 8(4) of the Civil Servants Act, 1973, hereinafter referred to as the "Act of 1973", and in the list circulated in June, 1976, his name appeared at SI. No. 69. The respondent No. 1 has alleged that in August, 1979 several persons belonging to the erstwhile Civil Service of Pakistan (C.S.P.) were promoted to the rank of ]oint Secretaries, but his name was not put up before the Central Selection Board (C.S.B.) for consideration and promotion, as such. Thereafter, number of officers, whose names either appeared below him in the 1976's Gradation List or did not appear therein at all, were promoted. He made representations to the Establishment Division and no reply was given to him. In June, 1980, he made another representation to the Establishment Division, requesting that his name be placed before Central Selection Board for consideration and promotion. The Establishment Division, however, through their letter No. 55/11/79/AV, dated 12.21.1980 had informed him that "no officer junior to Mr. H. Akhtar Niazi has so far been promoted".
6. The respondent No. 1 mentioned that besides Gradation List of 1976, the Establishment Division had also filed a Gradation List before this Court on 6.12.1979 in compliance of order of this Court for inspection of Mr. Israrul Haq, who was a respondent in Appeal No. 37/79. In that Gradation List, the respondent was placed at Si. No. 36.
7. He concluded that former CSP officers, who were ineligible or were union to him, were promoted earlier to him, depriving him from legitimate right of promotion. The date of birth of respondent No, 1 is 19.2.1935.
8. In Civil Appeal No. 1600 of 1999 preferred by Hameed Ahmed Qureshi 15 persons have been shown as respondents, he maintained that respondents Nos. 2 to 15 of said appeal were promoted as Joint Secretariats (BPS-20) between the period from 4.8.1979 to 30.5.1980, as shown in the Gradation List (C-6). He was promoted as joint Secretary in BPS-20 on 17.8.1980. According to him, the "next below rule" had opened the door to favouritism and nepotism and was not correctly interpreted and applied with reference to this case. He claimed that 3 civil servant entitled to the promotion but n6t promoted for no fault of his shall be paid arrears of pay and allowances of higher post through proforma promotion or up-gradation. On 4.12.1962 he joined Civil Service through Competitive Examination held in the year 1961 and in 1966 was promoted to Senior Scale.
On 1.7.1970 he took over as Deputy Secretary, Finance Department, Government of NWFP. In 1978, he was appointed as Secretary, Co-operatives Department, Punjab and was also promoted to BPS-20.
He maintained that Mr. Hameed Akhtar Niazi was inducted into cadre and service much later to him, as such, he could not claim seniority over him. He submitted that impugned judgment is liable to be set aside.
9. Appellant, A.W. Kazi (Civil Appeal No. 1601 of (1999) has cited I6 respondents in his memo, of appeal. He joined Civil Service of Pakistan on 18.12.1965. He was granted Senior scale of pay in September, 1970 and held various posts of Additional Deputy Commissioners, Deputy Secretary, Additional Secretary in Sindh Government, Commissioner Sukkur Division and Secretary of the Department of Communication and Works, Service and General Administration and Finance under the Sindh Government. In 1989, he was posted as Joint Secretary in the Cabinet Division. He was not a party in the appeal before " Federal Service Tribunal. He also prayed for setting aside impugned judgment on the grounds, which has been urged by the Federal Government and by other private appellants.
I0 . Appellant Di. Zafar Iltaf (Appeal No. 1602. 1999) has cited as many as 90 respondents in his appeal and prayed for setting aside the impugned judgment more oi less on the same grounds raised by Government of Pakistan and other private appellants. He joined Civil Service of Pakistan on " 18.12.1965. He was promoted to Senior Scale in February 1970 and held various posts. In April, 1991, he was promoted to Grade No. 21 and posted as Additional Secretary Incharge Agricultural Research Division, Government of Pakistan and Ex-officio Chairman Pakistan Agricultural Research Council Islamabad till first November, 1993.
II. Appellant, Muhammad Javed Masood (Appeal No. 1603/1999) has cited I6 persons as respondents. He joined civil service In 1965 and held various posts. He was promoted to Senior Scale of CSP in 1966 and he completed 8 years services in CSP before the Civil Servants Act or Civil Service Reforms were introduced. He also claimed that respondent No. 1, Hameed Akhtar Niazi, was inducted in cadre and - service much later to him, therefore, he could not claim seniority over him.
His appeal is time-barred by 35 days, the delay, under the circumstances is condoned.
12. Appellant, Pervaiz Masood (Appeal No. 1604/1999) has cited as many as 16 respondents. He joined Civil Service on 15.10.1963 and was posted on various posts. Presently, he is serving in Grade
22. His appeal is time- barred by 41 days, the delay, under the circumstances, is condoned.
13. Appellant, Aminullah Chaudhary, (Appeal No. 1605/1999) has cited I6 as respondents. He joined Civil Service in October, 1967. He assailed the impugned judgment of the Tribunal on various grounds, including misreading, misinterpretation and not examining the facts in their true perspective.. His appeal is time-barred by 110 days, the delay, under the circumstances, is condoned.
14. Appellant, Tariq Sultan, (Appeal No. 1606 of 1999) has cited as many as I6 respondents. He joined Civil Service in October, 1967 and assailed the judgment of the Tribunal on the grounds raised by other appellants. His appeal is time-barred by 110 days, the delay, under the circumstances, is condoned.
15. The Appeals Nos. 116(R) of 1981 and 124(L) of 1980 being identical were disposed of by the Tribunal by a single judgment dated 11.12.1986, which was impugned before this Court.
16. It was contended before the Tribunal in aforesaid appeals that after the enforcement of the Act of 1973, the seniority had to be determined in terms of Section 8 of Act of 1973 and it was immaterial if a former CSP officer had or had not served as Deputy Secretary, that the cadre of Civil Service of Pakistan (CSP) having become defunct since 1973, no one could claim seniority on the basis of his employment in the former CSP cadre, that according to Para 8 of SI. No. 18 (pages 766-868 of ESTACODE, 1983 edition), the seniority of all the Deputy Secretaries had to be reckoned from the date of continuous regular officiation as Deputy Secretary or in a post in Grade 19, whichever is earlier, that according to Para 3(ii) of O.M. No. 2/2/275-ARC, dated 21.2.1975 the post of Deputy Secretary could be filled in by a person, who had rendered 12 years' service in grade-17 and above, that in view of said memorandum it was not possible or legal for the Government to promote the respondents Nos. 2 and 3 namely, Walayat Ahmed and Syed Sarfraz Ali Shah from the date when they had rendered only 8 years of service. On behalf of the government it was submitted before the Tribunal that prior to formation of Secretariat Group, Officers of CSP cadre were appointed as Deputy Secretariats irrespective of seniority on the basis of suitability and availability and that officers in senior scale (Grade 18) were eligible for appointment as Deputy Secretariats, if they had 8 years service, that the post of Deputy Secretaries for CSP Cadre was never a promotion post and all senior scale (CSP) Officers irrespective of their seniority could be appointed as Deputy Secretaries on completion of 8 years service in junior CSP and senior CSP scales, that the post of Deputy Secretary was a tenure post and the Deputy Secretary had to go back as Deputy Commissioner if the exigency of the service so required.
17. Above decision of Tribunal was challenged before this Court by respondent No. 1, Hameed Akhtar Niazi, and leave to appeal was granted. This Court remanded the matter to the Tribunal having observed that relevant provisions pertaining to the appointment to the post of Deputy Secretary and seniority were not taken into consideration, while deciding these appeals. The Tribunal in compliance of the judgment of this Court issued notices to the parties and heard the arguments.
After doing this exercise, the Tribunal held as follows:-- "It is evident from the various lists issued by the Establishment Division that the appellant was appointed as Deputy Secretary on regular basis with effect from 9.4.1973. This fact is not disputed by the respondent-Department. Walayat Ahmed, respondent No. 2, was the senior mot amongst the respondents. Provisional Gradation List dated 20.11.1973 shows that he was appointed as Deputy Secretary on 1.6.1973. His date of seniority in Grade-19 has been mentioned as 1.6.197,3. Gradation List of Deputy Secretaries of the Secretariat Group issued on 1.10.1975 indicates that the date of appointment of the appellant as Deputy Secretary and date of seniority has been recorded as 9.4.1973, while that of respondent No. 2 as 1.6.1973 (mentioned at Serials Nos. 91 and 99 respectively).
Same was the position of the appellant and respondent No. 2 in the final Gradation List issued on 14-6.1976 where the names of the appellant and respondent No. 2 appear at Serial Nos. 69 and 74 respectively, leaving no room of doubt that the appellant was senior to respondent No. 2. This final Gradation List dated 14.6.1976 was acted upon by the respondent Department. The position did not change even upto 6.12.1979, when Gradation List was produced before the Supreme Court under the orders of the Honourable judges in another Appeal No. 37/1979. In that list, the names of the appellant and respondent No. 2 appear at Serial Nos. 36 and 41 respectively. The position, however, changed when another Gradation List of Secretariat -Group (Grade-19) was issued but not circulated, which, according to the appellant, was issued surreptitiously. This list did not see the light of the day as seniority of officers of defunct CSP was changed on the basis of "next below rule" and all the respondents alongwith some others were shown as senior to the appellant. This aspect has already been discussed in the earlier paras and we need not repeat it."
18. It appears that after the remand the Tribunal issued public notice in the leading newspapers for the country inviting applications for impleadment in the remand case No. 124-K/80. Accordingly, thereafter, many C.S.P. Officers were impleaded as respondents and a consolidated list was prepared, which showed 15 as appellants and 72 as respondents in the remand proceedings, including 22 officers of the defunct C.S.P. The C.S.P. Officers did not appear before the Tribunal despite individual notices were sent to them.
19. It is evident from record that almost all the appellants, except Tariq Sultan and Aminullah Chaudhry, have now retired. Now stress is only on the point that benefits extended to respondent No. 1 be also extended to about 40 non-Civil Servants pursuance to the impugned judgment of the Tribunal.
20. The respondent No. 1, and others who were opposing the claim of respondent No. t, have already retired and availed the benefits arose therefrom. It would be an exercise in futility to examine the issue of seniority inter se of the retired officers.
21. Promotion to Selection post is always to be processed through the Central Selection Board. In the Esta Code, 2001 at pages 284 to 287, the requirements for promotion to grades 19, 20 and 21 respectively are as follows FOR GRADE 19:
(a) Qualifying Service: possess l2 years service as an officer subject to the provisions contained in Establishment Davision's 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 CRs 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.
FOR GRADE 20:
(a) Qualifying Service: possess 17 years service as an officer subject to the provisions contained in Establishment Davision's O.M. No. I/9/80-R-Il(A), dated 2.6.1983;
(b) Eligibility threshold, attain a minimum score of 70 marks in the CRS in accordance with the formula given in the Addendum;
(c) Qualification: as prescribed by 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 a crucial factor in determining the comparative merit of an officer;
(f) Variety of experience: the Selection Board should give due consideration to the nature of duties, duration and location of posts previously held by the officer depending on the post to be filled, an officer possessing well-rounded experience should normally be preferred particularly if he has sei\ed with distinction in un-attractive areas. While some exposure to a corporation, autonomous body or an ex-cadre assignment may be considered a positive feature this would not be so where an officer has stayed way from his parent cadre for too long; g) Training: should have successfully completed a regular course at NIPA or an equivalent course in another institution. This requirement will be waived for officers who:
(i) have served as head of a training institution for at least one year; or (ii) have served on the directing staff of a training institutions for at least two years; or (i.e) have attended a regular course at the Staff College/NDC; or
(iv) have exceeded the age of 56 years.
FOR GRADE 21:
(a) Qualifying Service: possess 22 years service as an officer subject to the provisions contained in Establishment Davison's O.M. No. 1/9/80-R- 11(A), dated 2.6.1983;
(b) Eligibility threshold: attain a minimum score of 70 marks in CRS in accordance with the formula given in the Addendum;
(c) Qualifications: as are prescribed by relevant recruitment rules;
(d) Relevant of Experience: possess experience relevant to the functions of the post being filled by promotion;
(e) Quality and Output of Work"; and "Integrity:; marks calculated in accordance with the formula in the Addendum shall be a crucial factor in determining the comparative merit of an officer;
(f) Variety of Experience: the Selection Board should give careful consideration to the nature of duties, duration and location of posts previously held by the officer. At this level, a proper assessm ent under the criterion may require some distinction between hard or taxing assignments (on account of work load or its complexity) viz-a-viz relatively routine duties particularly in the secretariat. Depending on the posts to . Be filled, an officer possessing well- rounded experience with adequate exposure to difficult assignments should normally be preferred;
(a) Training: should have successfully completed a regular course at the Pakistan Administrative Staff College/National Defence College. This requirement will be waived for officers who:-
(i) have served as head of a 'training institution for at least one year; or (i.e) have served on the directing staff of training institution for at lest two years; or
(iv) have exceeded the age of 56 years.
(g) Top Management Potential: since officers promoted to this level may be called upon to hold independent charge of a Ministry/Divisions or to head a major corporation, the Board should satisfy itself about the officer's maturity, balance and ability to assume such top management positions even at short notice."
22. Section 9 of the Act of 1973 deals with "Promotion", It may be regarding "selection post" or "non- selection post", In case of selection post, as involved in these matters, the criterion for promotion is merit, while in case of non-selection post it is done on the basis of seniority-cam- fitness. No civil servant can ask for the-promotion as a right, and the giving or refusal of promotion is a matter; which is within the exclusive domain of the govemment/executive authority. If a promotion is denied to a civil servant it could not be termed as denial of any fundamental right.
23. Perusal of Section 9 of the Act of 1973 unequivocally postulates that criterion for selection for promotion to the. Higher-grade rests upon decision of the competent authority. No other forum/authority can assume the duties, which specifically have been assigned to the competent authority.
24. The seniority is one of the factor, which is considered promotion, but seniority alone is not enough. Promotion is not automatic, but it depends upon so many other factors, such as, competence, availability of post and antecedent etc. None of these factors is less important than seniority. For promotion ail these factors, on case-to-case basis, are to be determined.
25. On the basis of improved seniority, the benefit of promotion, as a matter of right in selection grade, could not be claimed nor the Tribunal was competent to grant it from back date, as it was explicitly, beyond its jurisdiction. The requirements for promotion mentioned earlier were not examined by the competent authority at the relevant time, as such, the same could not be granted by the Tribunal.
26. It has been submitted on behalf of the respondents, who are likely to be benefited by the judgment of the Tribunal, that antedation of promotion is just a consequential relief and if this Court feels that the Tribunal could not do so, complete justice be done by exercising power under Article 187 of the Constitution and those benefit be extended to others also. Virtually, it is not a case of antedation, but of granting promotion from back date to the retired officers, which could n6t be done under the rules.
27. The contention of learned counsel for the appellant (In Civil Appeal No. 1599/99) is correct and the Tribunal could not antedate the promotion of Mr. Niazi. Besides, the judgment in Niazi's case was in personam and not in rem. It is noted that in respect of seniority of Deputy Secretaries, SRO No. 1238(l)/73, dated 22.8.1973 and Office Memorandum No. 2/2/75-ARC, dated 21.2.1975 were issued. The former lays down that the appointment of cadre post of the rank of Deputy Secretary could be made after 8 years service as Assistant Commissioner or SDO or in an equivalent post, while in latter, it was modified as follows:- "3. Deputy Secretary.- Appointment to the post of Deputy Secretary which shall be deemed to be a post in Grade 19, will be made in accordance with the following methods:-
(i) By selection on the basis of examination and interview etc. Held periodically for lateral entry to senior posts in the Federal Secretariat.
(ii) By horizontal movement from other occupational groups of Grade 19 officers or Grade 18 officers having l2 years service in Grade 17 and above, who have been recommended by the Ministries/Division, Departments or Provincial Governments and have been found fit by the Central Section Board."
28. We agree with the findings of the Tribunal to the effect that prescribed length of service for promotion to B-19 is 12 years in B-17 and above.
29. On the subject of promotion,. We refer to the following cases in support of our above conclusion, In the case reported a$ Muhammad Umar Malik v. Federal Service Tribunal and others (PLD 1987 SC 172), which was heard by a Bench of five judges including the then Chief justice, the following was held:- "Mr. Abid Hasan Minto, Advocate, when called upon to address arguments on merits, urged that the rules of promotion should not have been changed so as to affect adversely those already on the eligibilities list i.e. The combined list of the U.D.G. And S.G.G. In other words he was claiming a vested right in promotion for all the U.D.G. Borne on the joint cadre on the date of its separation. The position of law on the subject is clear in view of numerous decisions of this Court, e.g. Government of West Pakistan v. Fidda Muhammad Khan (1), Central Board of Revenue, Government of Pakistan v. Asad Ahmed Khan (2) Province of West Pakistan v. Muhammad Akhtar (3), Manzur Ahmad v.
Muhammad Ishaq (4) No Such vested right in promotion or rules determining eligibility for promotion exists." (Underlining is for emphasis).
In another case reported as Muhammad Saleem Bhatti v. Secretary to Government of the Punjab, Agriculture Department, Lahore and 2r others (KLR 1985 Tribunal and Services Cases 21), the following was observed:-- "6. We have no dispute with the proposition so propounded before us on behalf of the respondent Departments through the learned District Attorney and have no hesitation to hold that proforma promotion cannot be claimed as a right and it is absolutely for the department to see that in the circumstances, the civil servant can be granted proforma promotion or not. In this case so before us, we are in accord with the Department, when we find that at this belated stage, if proforma promotion is granted to the appellant from 1968, it will definitely change the entire structure of the cadre and will open floodgate of litigation amongst its strength."
(Underlining is for emphasis)
In a case from Indian Jurisdiction reported as R. Sampath v. The State of Madras and another (AIR 1962 Madras 485), the following was held:- "No civil servant has a claim to ask for promotion as of right and the giving or refusal promotion is a matter within exclusive discretionary domain of the executive authorities concerned in the matter."
Another case from Indian jurisdiction reported as M.A. Moqeem v. The State of Mysore and others (AIR 1963 Mysore 219), the following was observed while dealing with the issue of promotion:- "It is, we think, clear that a variety of considerations govern the promotion of an employee, none of which alone could render an employee suitable for promotion. Ordinarily, it would be for the State or the promoting authority to determine such suitability after an assessment of all relevant considerations, stich as seniority, competence, rectitude, and antecedent official records, none of which is less important than the other, for the preservation of purity and efficiency in public service."
30. In the impugned judgment learned Tribunal, while directing to grant proforma promotion to the respondent No.1 in various grades from the date Walayat Ahmed, respondent No. 2 and other junior respondents were promoted, noted that such relief could be given in view of the case-law reported in the case referred to in para 1, page 4 above.
In the case at SI. No. 1 (1973 SCM R 304), it was held that in the case of Civil Servant, who for no fault of his own was Wrongly prevented from rendering service to the State in the higher post to which he was admittedly entitled, he should be given salary for the higher post. The matter related to arrears of salary. Reliance is misplaced. In the instant case, it was never admitted by the Government that respondent No.1 was entitled to promotion from the date the Tribunal had granted.
In the case at SI. No. 2 (1985 SCM R 1394), the appellant was awarded proforma promotion and on that basis claimed arrears of pay. This case is also not attracted to the circumstances of these matters.
In the case at SI. No. 3 (PLD 1991 SC 1118), it was held that the question of proforma promotion necessarily involves the question of fitness of a civil servant and that three things are to be seen, while considering a case of promotion viz. Firstly, the rule of promotion i.e. Is of selection or of seniority-cum-fitness or of a seniority alone; secondly, where the promotion is to take place by seniority-cum-fitness; and thirdly, the question will be of fitness for promotion. Suffice it to say that in case of question of fitness, the jurisdiction of the Tribunal stands excluded. This case also does not support the contention of respondent No. 1.
In the Case at SI. No. 4 (1996 SCM R 850), inter alia, the point under consideration was whether adverse remarks of ACR, which were not intimated to the civil servant could be made basis for order of reduction of civil servant claim for seniority/promotion by the authority. Above point has no nexus with the points involved in these appeals. Facts are distinguishable.
In the case at SI. No. 5 (1988 SCMR 736), leave to appeal was granted, to consider whether the appellant was entitled to any financial benefits flowing from the notification assigning him seniority in the absence of. Retrospective promotion, In this case, the respondent department was directed to place the appellant's case before the Departmental Promotion Committee with all the relevant ACRs to consider his case for promotion as Superintending Engineering. It is significant to note that the Court itself had not granted promotion, but referred the case to Departmental Promotion Committee., On the contrary, the observations made in this case support the view taken by us in these appeals.
31. In view of above, Civil Appeal No. 1599 of 1999 (The Government of Pakistan through Establishment Division, Islamabad v. Hameed Akhtar Niazi) is allowed and the impugned judgment of the tribunal is set aside, In the light of above findings the Appeals Nos. 1600 to 1606 of 1999 also stand disposed of.