1994 PLP (C (PLC(CS))

While describing the weaknesses in the private respondent's service career in para. 5 of the memo of appeal, the appellant's version reads as under:‑ "Respondent No. 2 had been compulsorily retired under provisions of MLR 114 in March 1972. He was however, reinstated to service in 1978 under MLO‑23 losing the pecuniary and other service benefits .....................................Regarding his seniority, he extended his claim at the departmental level, in appeal before Sindh Service Tribunal and finally before the Honourable Supreme Court but his claim was outright rejected at each‑ stage ..........??? However by manipulation of record as Secretary of the concerned department, within a very short time through his political influence, he earned the restoration of his original seniority invoking plenary powers of the Provincial Government under section 24 of the Sindh Civil Servants Act 1973 by Notification No. SOI (S&GAD)3/54/88, dated 27th September, 1990 within one and half months after his assumption of power as Secretary of the Department " The appellant's above plea has been categorically admitted in corresponding para. 5 of the official written statement in the following words:‑ "That the contents of para 5 are admitted. The seniority in BPS‑19 and 20 restored by Government (to respondent No.2) ........................" It would appear that the above admission made in the written statement also includes the admission of the appellant's allegations that after rejection of his claim of seniority departmentally, and by Service Tribunal and Supreme Court, the respondent No. 2 by manipulation of the record as Secretary of the Department concerned, through his political influence succeeded in getting his seniority restored under extraordinary powers vested in the Government under section 24 of the Sindh Civil Servants Act, 1973, despite his ouster from service with consequent loss of seniority from 1972 to 1978 under MLR‑114. ??????????? In corresponding para. 6 of the said written statement, the allegations made in para. 6 of the memo of appeal have also been admitted inasmuch as that the contents of para. 6 are admitted. The allegations which have thus been admitted are reproduced as under.‑? ??????????????????????????????????? "In consideration of the brilliant record of the appellant, he i.e. appellant approached the respondent No. 2 with a request that the case of the appellant be also processed for consideration for award of BPS‑21. ??????????????????????????????????? The respondent No. 2, however, blatantly told the appellant that award of BPS‑21 was already reserved for himself and he would not forward the case of appellant for consideration. The respondent No. 2 boldly spurted out that no doubt the quantification of the appellant according to the Annual Confidential Reports was more than 80 and that of respondent No. 2 himself was not even bare minimum of 75 as prescribed by the Federal Government Memorandum; but the award of BPS‑21 would be reserved for respondent No. 2 and no other officer would be even considered from amongst the officers holding current posts in the department." ??????????????????????????????????? The appellant has described his service record in an attempt to prove his superiority over the private respondent in para. 9 of the memo of appeal. The relevant portions of the said para may be reproduced as under:‑? ??????????????????????? "(a)?????? The appellant is the solitary officer of BPS‑20 who holds academic qualification of M.E. (Irrigation and Hydraulics) from Mehran University of Engineering and Technology passed in the year 1982. ?????????????? (b) The appellant also holds Post‑Graduation Diploma in Soil Mechanics. ??????????????????????? (c) The appellant is the only officer in the department having the honour of being author of 3 Technical Publications of International Standard. The 3 publications are as under:‑‑ (i) Embankment Construction, Compaction and Supervision. (ii) Construction Methods. (iii) Breach closing operations published recently in the year 1990. (d) The appellant is the only officer considered to be the best expert in the department in the field of controlling and closing Canal and River breaches. This is evident from the fact that whenever breaches of extraordinary magnitude occurred in various canals or river sites, irrespective of his place or charge of posting, the appellant was invariably called upon and given the assignment of closing and controlling the breaches. (e) The appellant has to his credit nearly 29 years of service in BPS‑17 and above. The appellant served as BPS‑17 Officer from the years 1962 to 1971, as BPS‑18 Officer from the years 1972 to 1984, BPS‑19 Officer from 1985 to 1987 and thereafter in BPS‑20 as Chief Engineer. (f) ........ In addition, on a number of occasions the appellant has been conferred with written notes of appreciations of his proficiency and calibre and quality of his performance from his superior officers. The appellant. also state with confidence that no other officer can ever match with him on account of grading in the Annual Confidential Reports and qualification calculated. (g) The appellant may be permitted to state that in the entire department in quality of expertise and on the point of gradation and rating, he is unmatched by any other officer. (h) In addition, it also falls to his credit alone that he is visiting Professor in Sindh Agriculture University Tando Jam. He is also nominated in his capacity as an expert of prominence as member of Selection Boards in two universities namely Mehran University of Engineering and Technology, Jamshoro and Sindh Agriculture University Tando Jam. On this score also the appellant is unmatched by any other officer in the department." The appellant's claim of his superiority as reflected in para. 9 of the memo of appeal hereinabove has been admitted in toto in corresponding para. 9 of the official written statement. Para. 10 of the memo. of appeal wherein are enumerated the demerits of the respondent No. 2, reads as under:‑‑ "(a) He does not hold any foreign degree or diploma. (b) He does not hold any post graduation degree or diploma. (c) He has never exhibited any extraordinary standard of expertise in any assignment in the department. He is just a plain engineer but not on any standard an `Expert' which was prerequisite requirement of the Federal Government Memorandum cited above. (d) He does not hold to his credit any Research or published or unpublished project. (e) As per his own version which can be fully confirmed from Annual Confidential Reports of the appellant and respondent No. 2, the quantification of respondent No. 2 which is below 75 which would be another prerequisite requirement prescribed by the Federal Government cited above." It would be interesting to note that private respondent's demerits listed above have been fully admitted in the corresponding para. 10 of the written statement. In view of the admitted service record of both the appellant and private respondent as stated above, it may not pose any problem for Special Committee to make their choice of the meritorious officer at least from the above two. But as is clear from para. 11 of the written statement that the selection board which performed the job of Special Committee in this case had no occasion to consider the appellant's case as it was never sent to the said Board. The admission made in this connection in the said para. reads as under. "The case of appellant was not sent by the I&P Department to Selection Board although his score was more than 75.00 as such his case could not be considered by the Selection Board." However, the explanations furnished by respondent No.2 in para 11 of his own personal written statement for not sending the appellant's case for consideration of the Selection Board is that "since the three senior most officers in Grade‑20 were already in the run for promotion to BPS‑21, the allegations of concealment have been raised with a mala fide intention against the respondent No. 2". The explanation is far from satisfactory. It has already been held that award of BPS‑21 or 22 was not promotion case so that procedure prescribed for promotion was to be followed. The Special Committee (Selection Board in this case) had to act in accordance with the mechanism laid down in the Federal Government's memorandum referred to above for the purpose of awarding the higher Pay Scales of 21 to

22. The memorandum did not restrict the Selection Board to consider the cases of only limited number of officers and therefore the idea of considering only three officers for award of the higher scale of pay was not in keeping with the spirit of the Federal Government's memorandum. As has been noted above, the intention of the memorandum was to grant the higher scale to "specially meritorious officer". It may be quite possible that the desired officer may be found at lower rungs of the seniority list. If the selection was limited to specified number of officers in order of seniority, the very object of selecting the deserving meritorious officer was bound to be frustrated. In any case we are of the firm view that the memorandum did not limit the consideration by the Selection Board to any definite number of officers. The appellant who admittedly had very commendable service record should have been considered by the Selection Board and his case should have been placed before the board. The respondent No.2 happened to be the Secretary of the Department concerned at the relevant time. That was perhaps the reason that appellant's case was withheld from consideration of the Selection Board. We have been shown the minutes of the meeting of the Selection Board held on 10‑9‑1990 in which amongst others, the respondent No. 2 was selected for award of BPS‑

21. It was rather surprising that the composition of the Selection Board included the name of the respondent No.2 as its member. That is to say he participated in the proceedings relating to his own selection. His solitary name appears at page 14 of the minutes under Irrigation and Power Department, suggesting that he alone was considered and no other officer of the said department came under consideration of the Selection Board. In these circumstances the selection of the respondent No‑2 for award of BPS‑21 could not be held to have been made in accordance with the requirements of the Federal Government's Memorandum. His own presence in the meeting as member of the Selection Board had obviously the effect of influencing the Board's proceedings in respect of his selection. The upshot of the above discussion is that appeal is allowed with no order as to costs and the impugned order is set aside. H.B.T./422/Sr.K ???????????????????????????????????????????????????????????????????? ??????????? Appeal allowed.