MINHAJUL HASSAN SYED Versus WAPDA
CH. HASAN NAWAZ (MEMBER) .‑‑‑After having joined the Water and Power Development Authority as Junior Engineer (now BPS‑17) in the year 1962, the appellant was promoted as Executive Engineer (BPS‑18) with effect' from July, 1968, and then as Superintending Engineer (BPS‑19) in the year 1977. He is now working as Director Technical, Area Electricity Board,
2. Respondents Nos. 2 to 10 were also appointed as Junior Engineers after the appellant's appointment and they were promoted as Executive Engineers and then as Superintending Engineers after his promotion. They are admittedly junior to him as Superintending Engineers.
3. The present dispute between the parties came about with the passage of order dated 27‑1‑1992 (Annexure‑B) whereby respondents Nos. 4 to 6 were respectively appointed as Acting Chief Engineer (GSO), North, Lahore, Acting Chief Engineer, Distribution Planning, Lahore and Acting Chairman, Area Electricity Board, Gujranwala. It might as well be mentioned that order dated 28‑1‑1992 (Annexure `C') regarding respondents Nos. 2 and 3's promotion and respective postings as Director‑General, (MP&C), Lahore, and Chief Engineer, Material Inspection, Lahore, is also in contention.
4. About respondents Nos. 7 to 10 it has been pleaded that although they have not been regularly promoted to the post of Chief Engineer (BPS‑20), they were granted "Acting Charge Promotions" from different dates (during the last three years) and are still continuing in that capacity without regularization of their promotions as Chief Engineers. It is alleged that it was done so regardless of the fact that several other Superintending Engineers, including the appellant, were "fully qualified for promotion to the post of Chief Engineer".
5. On 13‑2‑1992, a review petition was addressed by the appellant to the Chairman, WAPDA, Lahore, where it was averred that he was senior to the contesting respondents. The request was that his case for promotion may be reviewed in the light of his submissions.
6. On having been informed by letter dated 22‑3‑1992 that his representation had not found favour with the Chairman and that his case for promotion as Chief Engineer will be put up again in the next Selection Board's meeting, he came to the Tribunal on 19‑4‑1992 with the present appeal under section 4 of the Service Tribunals Act, 1973, where it has been prayed that (a) the Tribunal may examine "if the matter of his promotion" was correctly and honestly placed before the Selection/Promotion Board and (b) after such examination, it "may direct the departmental authority to promote the appellant on regular basis with effect from the date his junior was promoted".
7. Another prayer was than "the Tribunal may also direct that the persons illegally appointed by promotion on Acting Charge Basis be replaced by duly qualified persons who are fit for promotion".
8. Merits apart, the appeal has mainly been opposed by the respondents on the ground that it is not maintainable under section 4(1)(b) of the Service Tribunals Act, 1973. Although it has not been specifically said so, the basis for this objection is that the appellant's case was considered by the Selection Board concerned in its meetings held on 18th and 21st of January, 1992, and that he was not found fit for promotion.
9. However, before an address is made to the aforementioned legal objection raised by the respondents, two other important circumstances may be pointed out. First is in respect of respondents Nos. 7 to 10 who are alleged to have been promoted on Acting Charge Basis on different dates during three years preceding the institution of the appeal. Pertinent aspect of the appellant's case about them is that the dates of orders of their promotions have not been mentioned. In fact, there is no reference to any specific order of promotion, which could be made the subject of challenge. This feature of the appellant's pleadings becomes all the more prominent when considered in the light of the fact that his case against respondents Nos. 2 to 6 is in the context of specific orders of their promotion dated 27‑1‑1992 and 28‑1‑1992. Be that as it may, it is quite clear that the appeal is time‑barred in so far as they are concerned, evidently because of the reason that the orders of their promotion have not been challenged within time.
10. The question of limitation apart, the appeal against them is not competent under section 4(1)(a) of the Act which provides that "where an appeal, review or representation to a departmental authority is provided under the Civil Servants Act, 1973, or any rules, against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred". It may be stated that it has not even been alleged by the appellant that he preferred any departmental appeal or representation against the orders of their promotion. This being so, there was hardly any justification for impleading them as respondents alongwith respondents Nos. 2 to 6 in whose case specific orders of promotion are the subject of challenge.
11. Even the case of respondents Nos. 2 and 3 is distinguishable from that of respondents Nos. 4 to 6 whose Acting Charge Appointment was ordered on 27‑1‑1992. It is alleged in para. 7 of the appeal that the appellant filed a review petition on 13‑2‑1992 when "respondents Nos. 2 and 3 were promoted on regular basis and respondents Nos. 4 to 6 on Acting Charge Basis". I am afraid this is factually incorrect, in that review petition dated 13‑2‑1992 bears out that it had been directed only against order dated 27‑1‑1992. There is absolutely nothing whatever to indicate that the promotion of respondents Nos. 2 and 3 was also departmentally challenged by the appellant. This being the established position, we feel no hesitation in holding that appeal against respondents Nos.2 and 3 is also incompetent on account of the appellant's failure to fulfill the jurisdictional requirement of section 4(1)(a) of the Act.
12. The aforementioned analysis leaves us only with respondents Nos. 4 to 6 who were appointed only as Acting Chief Engineers and Chairman, Area Electricity Board, by order dated 27‑1‑1992. Therefore, if seen in the light of these considerations, the respondents' objection regarding maintainability of the appeal addresses itself only to these respondents. Section 4(1)(b) provides that "no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a 'particular post or to be promoted to a higher grade". It is contended on the strength of these provisions, that the appeal is not maintainable because the appellant .was considered alongwith the respondents and was found unfit for promotion.
13. There is no denial of the fact on behalf of the appellant that his case was considered for promotion by the Selection Board. A reference to his pleadings on this point seems to be unnecessary in view of candid concession by his counsel during the course of arguments that it was so considered. In view of the situation emerging from this concession, the only point for consideration is whether the circumstances of the case provide us with any ground or justification to disregard the hurdle created by the provision of section 4(1)(b) of the Act.
14. The appellant's contention is that "the orders declining promotion to him to BPS‑20 and giving promotion on Regular and Acting Charge Basis to respondents Nos. 2 to 10 are illegal and mala fide:" As I, see, only two reasons have been mentioned in support of this contention. First, his service record is "very good" and that the quantification of his Annual Confidential Reports made by the Selection Board is incorrect. The second is that the Promotion Policy "is illegal and amounts to usurpation of the powers of the Promotion Board which is expected to act and judge fitness for promotion on subjective basis and not on mathematical calculations".
15. In so far as the first reason goes, there is nothing much to be discussed. We examined the appellant's Annual Confidential Reports with the help of his learned counsel and it was found that he has scored about 69 marks, which is admittedly below the threshold of minimum 70 marks. There is no doubt about the fact that his overall service record was rather good and he would have ordinarily crossed the thresh hold, if average reports had not been given to him by the Chairman of the Authority for four or five years. The quantification went below the threshold evidently because of average rating given by the Chairman. It was explained by the Authority's Departmental Representative, during the course of arguments, that the Chairman gives his own assessment as a matter of rule. I am of the view that we cannot go into the question whether the Chairman is authorised to assess the performance of Superintending Engineers in accordance with the rules and whether that assessment is uniform in its application to all the concerned officers. What is material for the present discussion is only the fact that the appellant's quantification was lesser than the prescribed standard in accordance with the calculations made by the Selection Board. Even his learned counsel conceded that this was not upto the required level.
16. As already mentioned, the appellant's second ground for disregarding the provision of section 4(1)(b) of the Act becomes available from the contention that the Promotion Policy "is illegal and violative of the rules of natural justice". The subject of challenge in this appeal is the Acting Charge Appointment of respondents Nos. 4 to 6 as Chief Engineers and Chairman, Area Electricity Board. Since this order clearly amounts to a decision of the departmental authority determining the‑fitness or otherwise of the respondents to be appointed to or hold a particular post, we are confronted with the legal objection that the appeal is not competent, The question, therefore, for determination is in respect of the very basis of the appeal. I am of the considered view that the legality or otherwise of the Promotion Policy is totally irrelevant for the determination of the question of its competency. Therefore, we cannot examine and go into the merits of the Promotion Policy to decide whether the appeal is competent. I hold that the rationality or otherwise of this Policy does not, by any means, have any bearing on the point, much less when it is uniform in its application to all the concerned officers. It is undoubtedly the Department's prerogative to frame a Promotion Policy and we have no jurisdiction to examine its merits or demertis.
17. It has already been held that the appeal is incompetent and barred by limitation in so far as respondents Nos. 2, 3 and 7 to 10 are concerned. We have now been left only with respondents Nos. 4 to 6 who, according to the appellant's own version, are only on Acting Charge Appointments. Since the appellant's case was considered and he was found unfit for promotion, I hold the view that the provisions of section 4(1)(b) of the Act squarely stand in the way of the maintainability of this appeal. Nothing convincing was said by the appellant's learned counsel to warrant a conclusion that we are within jurisdiction to question the findings of the Selection Board irrespective of those provisions.
18. The bar imposed by this section is equally applicable to that part of the appellant's prayer where he has sought a direction that "the persons illegally appointed by promotion on Acting Charge Basis be replaced by duly qualified persons fit for promotion".
19. Reliance in support of the contention that the Tribunal is within its jurisdiction to examine the fitness or otherwise of a person for promotion, was placed on the judgment of this Tribunal in the cases of Pir Muhammad Qureshi v. Chairman, POF, Wah and others (Appeal No. 224(R) of 1989) and Amir Yousuf Ali Khan v. Secretary, Establishment Division and others (Appeal No. 67(R) of 1989). In the case of Pir Muhammad Qureshi it was held that "the jurisdiction of the judicial forum does not stand ousted" in cases "where there has been flagrant violation of rules"' in the matter of promotion. It will be enough to say that the facts of the case, which caused the aforementioned authorities of the Tribunal are distinguishable, in that there has been no such violation of the rules in the present case.
20. While underscoring the conclusion regarding maintainability of the appeal, I feel like making a few observations before leave of the matter is taken, with a view to give a fair deal to the appellant's case. During the course of arguments we have had the opportunity of examining his annual performance evaluation reports. It was noticed that the Chairman appeared to have taken up five years reports, immediately preceding the Board's meeting, and rated him as `average', all in one go on the same date. I say it without hesitation that this method by no means reflected an objective assessment of the appellant's performance during those years. Proper course was to put up each year's report on completion before the Chairman for his remarks and then in case of `average' rating, conveyed it to him to give him, an opportunity of improving his performance. The method of evaluation adopted in this case certainly prejudiced his case because, as already pointed out, it was only on account of this average rating by the Chairman that his quantification was relegated to a lower position; to say nothing of the fact that at least in one case of a promoted officer, the Chairman's remarks were not there at all, for whatever reason.
21. This was one aspect of the matter. The other, as we see from the minutes of the Board, is that the appellant was declared as `unfit' for promotion. No reasons have been given. We understand that the only reason, which appears to have weighed with the members of the Selection Board was that his quantification remained below the requisite standard. This circumstance is not material, if taken in isolation. However, we find that in the case of Mr. Ghulam Sarwar, S.E., he was promoted despite the fact that he too did not cross the threshold of seventy marks, and reasons have been given for exceptional treatment to him. The appellant's contention was that he also deserved promotion by the same token because of his good service record and certificates of commendation, whether he deserved promotion was under law within the Board's domain. But what I do say is that reasons should at least have been given for declaring him as unfit, to advance the interests of justice.
22. Anyway, in spite of these aberrations, I still hold the view that the' appeal is not maintainable, and this for the simple reason that they do not amount to such gross violation of the rules, as to warrant a finding that the decision of the Selection Board suffers from rank illegality and stands reduced to that of a layman, which eventuality could have enabled us to assume jurisdiction, irrespective of the bar imposed by section 4(1)(b) of the Act.
23. For these reasons, the appeal is dismissed. No order as to costs.
ABDUR RAZZAQ A. THAHIM (CHAIRMAN): ‑‑ I agree.
A.A./782/Sr. F Appeal dismissed.