ZAKIR MAHMOOD ABBASI vs M.G.O. MGO BRANCH, GHQ, RAWALPINDI and 5
This matter concerns a petition for leave to appeal against an order of the Federal Service Tribunal, which dismissed the petitioner's appeal regarding his seniority and promotion. The petitioner, a Supervisor (B) in BPS-8, challenged the promotion of respondents Nos. 4 to 6 to Supervisor (A) in BPS-11, claiming seniority over them. The Tribunal had dismissed the appeal after examining the petitioner's fitness for promotion, noting he had received average Annual Confidential Reports and was not recommended by the Departmental Promotion Committee. The core legal question is whether the Service Tribunal possesses the jurisdiction to determine the fitness of a civil servant for promotion, notwithstanding the statutory bar contained in the proviso to Section 4(1) of the Service Tribunals Act, 1973. The Supreme Court granted leave to appeal to specifically address this jurisdictional issue. The principle at stake is the extent of the Tribunal's authority to adjudicate on matters of promotion and fitness, particularly in light of the explicit legislative restrictions placed on the Tribunal's appellate jurisdiction regarding the suitability of a person for appointment or promotion.
- Does the Federal Service Tribunal have the jurisdiction to determine the fitness of a civil servant for promotion?
- Does the bar contained in the proviso to Section 4(1) of the Service Tribunals Act, 1973, preclude the Tribunal from adjudicating on the fitness of a person for promotion?
- Section 4, Service Tribunals Act 1973
- Section 4(1), Service Tribunals Act 1973
ORDER
1. ' MUKHTAR AHMED JUNEJO, J.---Petitioner Zakir Mahmood Abbasi seeks leave to appeal against an order dated 10-5-1994 passed by the Federal Service Tribunal (hereinafter mentioned as the Tribunal) in Appeals Nos. 107 and 108(R) of 1994. Appeal No, 108(R) of 1994 was moved by the petitioner in the Tribunal with following prayer:-- "It is, therefore, respectfully prayed that this Honourable Court may be pleased to accept the appeal and set aside the order dated 30-10-1993 and the appellant may kindly be declared senior to his juniors respondents Nos. 4 to 6 from the date of passing order."
2. ' Admittedly the petitioner was serving under respondents Nos. 1 to 3 as Supervisor "B" in BPS-8. The petitioner claimed being senior to respondents Nos. 4,
5. And 6 who under an order dated 31-10- 1993 were promoted as Supervisors (A) in BPS-11. The petitioner moved respondent No, 3 for passing similar order of promotion in his favour, but he was not given reply. His departmental representation filed on 29-11-1993 was rejected under a letter dated 23-2-1994. The petitioner thereafter invoked jurisdiction of the Tribunal under section 4 of Service Tribunals Act, 1973 (hereinafter mentioned as the Act, 1973).
3. ' The appeal moved under section 4 of the Act, 1973 was contested by respondents 1 to 3 who took stand that powers for further promotion vest in the Departmental Promotion Committee (DPC) which is free to take any decision with regard to promotion and that the petitioner serving as Supervisor (B) had not been recommended by the D.P.C. Due to his having earned adverse remarks in A.C.Rs, ' The learned Tribunal under the impugned order dated 10-5-1994 erroneously assumed jurisdiction to consider fitness of the petitioner for promotion and took view that the petitioner had earned five reports which were all average and hence he was rightly not found fit by the D.P.C. For promotion and he was rightly superseded. After taking such view the Tribunal dismissed petitioner's appeal.
4. Hence this petition.
5. ' Sheikh Riazul Haque, learned counsel for the petitioner, argued that the Tribunal had taken view in respect of the petitioner, without calling for the necessary record and that the Tribunal was competent to consider fitness of the petitioner for promotion. In support the learned counsel cited the cases of (i) Dr. Adil Hamid v. Azad Jammu and Kashmir Government (1991 PLC (C.S.) 1195); (ii)
6. Secretary, Government of Punjab v. Ahmad Kamaluddin (1981 SCMR 392); (iii) Muhammad Hayat v.
7. Secretary, Tourism Division Islamabad (PLJ 1991 Tr. C. (Services) 119); and (iv) Islamic Republic of Pakistan v. Dr. Safdar Mahmood (PLD 1983 Supreme Court 100).
8. It is worthy to note that in his prayer clause the petitioner claimed seniority over respondents 4, 5 and 6 and challenged the order about their promotion but the learned Tribunal proceeded to examine the case on merits and see if the petitioner was fit or otherwise for promotion.
9. ' Leave to appeal is granted to consider whether despite the bar contained in clause (b) below subsection (1) of section 4 of the Act, 1973, the Tribunal can determine fitness or otherwise of a person to be appointed to a particular post or to be promoted to a higher post.