ZAFAR ULLAH BALOCH vs GOVERNMENT OF BALOCHISTAN and others

ORDER

' IFTIKAHR MUHAMAMD CHAUDHRY, J.---Petitioner seeks leave to appeal against judgment, dated 6th December, 2001 whereby Service Appeal filed by him has been dismissed by Balochistan Service Tribunal.

2. Precisely stating facts of the case are that petitioner being Member of Provincial Civil Service (Executive Branch) defunct ranked senior in B-19 from respondent Muhammad Afzal Baloch and two others namely Muhammad Taufiq Ahmed Khan and Jan Muhammad Dashti who are not before the Court as in the meanwhile they had retired. But, he was not promoted from B-19 to B-20 vide Notification, dated 12th June, 1998 and junior officers than him namely Muhammad Afzal Baloch (respondent) and two others were promoted by the Provincial Government on recommendations of Provincial Selection Board. Against the notification ignoring him for promotion from B-19 to B-20 he preferred a- departmental appeal but without any success. As such he submitted Service Appeal before the Balochistan Service Tribunal which has been dismissed vide impugned judgment for the reasons that "as petitioner has prayed for his promotion in next higher grade by reconsidering his case but the Tribunal had no jurisdiction to grant him relief to such extent in view of provisions of section 4 of Balochistan Service Tribunals Act, 1974 (hereinafter referred to as the "Act")", As such instant petition has been filed,

3. Learned counsel contended that petitioner's claim before the Service Tribunal was that he has not been promoted to B-20 contrary to the Promotion Policy, therefore, Service Tribunal had jurisdiction to examine "whether rejection of case of promotion of petitioner from B-19 to B-20 is contrary to Promotion Policy because at least he can pray that while considering his case for promotion he should have been dealt with according to Rules, Regulations and Policies meant for such purpose and under section 4(b) of the Act, the Service Tribunal had jurisdiction to examine his case to this extent.

3-A. Haji Akhtar Zaman, learned Additional Advocate-General appeared on behalf of official respondents and stated that promotion of petitioner from B-19 to B-20 was denied strictly according to prevailing policy, as such no case is made out for interference by this Court.

4. We have heard learned counsel for petitioner and Haji Akhtar Zaman, learned Additional Advocate-General and have also gone through the impugned order as well as relevant provisions of law on the subject. It would be appropriate to reproduce hereinbelow section 4(b) of the Act for convenience:-- "4. Appeals to Tribunals.---Any civil servant aggrieved by any final order, whether original or appellate, made by departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him, prefer an appeal to the Tribunal having jurisdiction in the matter: ' Provided that-- (a)

(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining--

(i) the fitness or otherwise of a person to be appointed to or hold a particular or to be promoted post to a higher post or grade; or

(ii) the quantum of departmental punishment or penalty imposed on a civil servant as a result of departmental inquiry, except where the penalty imposed is dismissal from service, removal from service or compulsory retirement.

Explanation.--In this section, 'departmental authority' means any authority, other than a Tribunal, which is competent to make an order in respect of any of the terms and conditions of civil servants,"

5. It is known principle of service laws that promotion is not a vested right of a civil servant because it depends on eligibility-cum-fitness and if a person is eligible for promotion being senior in rank in the grade but is not fit to share higher responsibilities he would not be promoted to the next grade.

Undoubtedly eligibility for promotion of the aggrieved person can be subjected to judicial scrutiny by the Service Tribunal because it relates to the terms and conditions of his service as it has been held by this Court in number of reported judgments. For ready reference reliance is placed on the cases of (i) Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others (1991 SCMR 1129), (ii)

Muhammad Anis and others v. Abdul Haseeb and A others (PLD 1994 SC 539).

6. As far as fitness of a civil servant to hold a next higher post is concerned it depends upon his performance which he had been showing during the period prescribed for promotion to next grade and it is to be determined on the basis of material placed before competent authority including Annual Confidential Reports etc. The performance is to be evaluated on quantifying the marks secured by him as per the invogue formula and where a right to consider him for promotion has been claimed on the strength of arguments that he has been bypassed in violation of the Promotion Policy etc. The Service Tribunal can examine the question of his fitness as well as held by this Court in Muhammad Rahim Khan v. The Chief Secretary, N.-W.F.P. And 4 others (1999 SCMR 1605). Relevant para. Therefrom is reproduced hereinbelow:-- ' "However, even in the matter involving fitness to be appointed or promoted to a particular post or grade there has to be necessary material on the basis of which an opinion, one way or the other, is to be formed. If, therefore, either all the necessary material is not put up before the Authority deliberating upon the matter of appointment or promotion or obviously misleading material is put up or manifest acts of commission or omission, as regards vital data, are involved the subjective exercise may not qualify as such and may irretrievably be conditioned by objective factors, wanting in due process. Such aspects, probably, would be more akin to consideration of eligibility than of fitness and all things being equal, be opened for scrutiny before a legal forum. In the instant proceedings, the objective factors were the working paper etc. And the recommendations of the Board. On such material, another had to determine the fitness and while such determination may be beyond judicial scrutiny, the necessary steps leading to the same i.e, the objective factors may not always be so, see, inter alia, Muhammad Anwar v. Secretary, Establishment Division, PLD 1992 SC 144, Federation of Pakistan v. Muhammad Qaiser Hayat Khan, 1994 SCMR, 544, Walayat Ali Mir v.

Pakistan International Airlines 1995 SCMR 650, Secretary, Narcotics Control Division v. Muhammad Sajjad, 1997 PLC (C.S.) 167, Pakistan Broadcasting Corporation v. Nasiruddin 1997 PLC (C.S.) 931, S.T.

Rehman v. Government of Pakistan, 1997 PLC (C.S.) 1207."

7. As it has been noted hereinabove that petitioner's grievance was that he has not been considered for promotion contrary. To prevailing Promotion Policy, therefqre, we are of the opinion that for such reason the Tribunal on having been satisfied that he has made out prima facie convincing case on this score may have exercised jurisdiction under section 4 of the Act instead of non-suiting the petitioner under section 4(b) of the Act. Therefore, to this extent we were inclined to grant leave to appeal but on having gone through the relevant record we decided to examine the case of the petitioner on merits in the interest of justice because if he had succeeded in making out a case for interference by this Court on merits in his favour we would have given him same relief which Tribunal have given him.

8. According to Promotion Policy the posts in the Basic Pay Scale 19 and above are selection posts, therefore, promotion against such posts are to be made under Item III of the Promotion Policy which amongst others provides that a civil servant must fulfil requirements laid down therein including "eligibility threshold" which has been fixed at a minimum score of 70 marks. But petitioner failed to obtain required marks as far as overall assessment is concerned because he secured 69.36 marks. However, he obtained more than required marks for quality and output of work and integrity, therefore, he was not promoted from B-19 to B-20 for this reason. As such no case of violation of Promotion Policy is made out.

9. Learned counsel for the petitioner, however, contended that on account of material discrepancies in one of his ACR i.e, for the period from 1st January, 1997 to 31st December, 1997 he has been deprived from requisite marks i.e, despite of earning majority of A-1 reports, the second countersigning officer instead of ranking him very good has ranked him a good officer. Therefore, if the entry of this ACR is treated to be as very good he would have secured the requisite marks.

10. We are afraid this argument is not available to him because this entry was made in the ACRs as back as in the year 1997, therefore, its correctness cannot be questioned at this stage firstly for the reason that it is not an adverse entry and secondly on having coming to know that second reporting officer has ranked him to be a good officer instead of very good he did not challenge it before any forum according to law.

' In view of above discussion we see no merit in the petition, as such the same is dismissed and leave declined.