1988 PLP S (PLC(CS))

CH. A. RAHMAN KHAN (MEMBER).‑‑The appellant, Dr. Iftikhar All Rana, Principal, Scientific Officer, National Agricultural Research Council, Islamabad, has come in appeal against the impugned order No.F. 1‑7/84‑Per‑I, dated 21st January, 1986 and a provisional Order‑in‑Original No.PF.89/IAR/JPMC/Per‑I Vo1.II, dated 4th February, 1985 passed by the Secretary, Ministry of Health, Respondent No.l.

2. The facts of the case are that the appellant joined the Jinnah Postgraduate Medical Centre on 17‑2‑1971 as Assistant Professor of Nutrition in Grade‑18 through the Federal Public Service Commission. He served there till 22‑10‑1984 when he was sent on deputation to the Pakistan Agricultural Research Council as Principal Scientific officer.

3. It was contended by the learned counsel for the appellant that while serving at the Jinnah Postgraduate Medical Centre the appellant was given two adverse reports in 1979 and 1982. The appellant preferred an appeal No.33(K)/83 against adverse report of 1979 and another appeal No.106(K)/83, against the adverse report of the year 1982. The adverse remarks cf 1979 ACR were ordered to be expunged whereas his appeal against the adverse remarks of 1982 was finally rejected in 1984. It was submitted that vide order dated 29th August, 1981 his juniors were promoted as Associate Professors in Grade‑19 and the appellant was not cleared. However, this order of promotion dated 29th August, 1981 was later amended vide Gazette Notification dated the 4th April, 1982 and the promotions of his juniors among others were ante‑dated. In the case of Dr. Naseer who appeared at Sl. No.12 of the first order and was to be promoted with effect from 29th August, 1981, his promotion was ante‑dated to read with effect from 8‑9‑1979. In 1981, in the meeting of Central Selection Board, 19 cases out of 26 were cleared and 6 remaining were deferred. Afterwards, there was a second consideration in 1983, but the name of the appellant was not included in the list for consideration and, therefore, was ignored for further promotion. In this Central Selection Board meeting three deferred cases and three other cases were submitted to the Establishment for consideration. The CSB considered six cases in its meeting held on 31st March, 1983. There was then a 3rd consideration in the year 1984 for move‑over to Grade 19 but he was not cleared for move‑over. This is not in accordance with the law. There was a meeting of the C.S.B. in 1986 in which the appellant's name was considered but was not cleared once again for unknown reason s.

4. It was strongly contended by the learned counsel for the appellant that in 1981, the appellant was ignored for promotion to the newly‑upgraded post of Associate Professor in spite of the fact that he had preferred an appeal against the adverse remarks of the year 1979. In fact this adverse report for the year 1979 should not have been considered by the CSB in the year 1981. The adverse remarks were finally ordered to be expunged in 1982. This decision of CS B obviously was not consistent with para V I of the promotion policy which states that para II to V of this promotion policy will not be strictly applicable to specialists cadres. The criteria for promotion in these cadres will continue to be technical qualification, experience and accomplishments (research, publication, etc.) relevant to their specialism. This means that even before 1982 this was the accepted criteria for promotion of members of the specialists cadres. In view of high qualification, experience and research. work in the field of his specialism i.e. nutrition, it should have been only right to clear the appellant for promotion and not continue to punish him for the adverse ACR for the year 1982. The appellant's vested right for promotion could not be ignored P L D 1978 Kar. 703 (f) refer.

5. It was further strongly contended that it was a clear case of discrimination in view of the promotion policy para‑6 page 168 of ESTACODE 1983. Those juniors to him having inferior record of service and less experience have been promoted. The case of Syed Muhammad Alam, Assistant Professor, Pathology, who was considered in the year 1987 is specifically quoted as an example who had no better record than the appellant. Another example of Dr. Saghir Ahmed can be cited who vide CSB meeting held on 3‑2‑1987 was not cleared but another meeting of the CSB held on 12‑3‑1987, held only after a month or so was cleared for promotion although there was no change in his service record apparently. This kind of discrimination in the case of the appellant is understandable and amounts to mala fide intention. He is being ignored for promotion in spite of the fact that since 1984 he has had one outstanding, one very good and one good report consecutively‑.

6. In view of the above facts it was strongly contended by the learned counsel for the appellant that continuous supersession of the appellant is illegal, unjustified and therefore the impugned order is liable to be set aside.

7. It was contended by the learned counsel for the respondents alongwith the department representative that primarily the appeal is hit by proviso (b) of subsection (1) of Section 4 of Service Tribunals Act, 1973 which reads as follows:‑‑ "(b) 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."

7. It was further submitted that as regards the ante‑dating of the promotion order dated 29th August, 1981, the Establishment Division was consulted and the summary dated 21‑12‑1981 was approved by the competent authority to ante‑date the promotion of the concerned officers. There was no violation of any rule in this case. It was only on approval of the summary that Gazette Notification was published to ante‑date these promotions of 16 officers out of 19 so cleared for promotion. There was delay in the publication of promotion of 3 remaining officers due to non‑availability of certain record and therefore, the notification in their case was published on 20th June, 1982. There was no reconsideration of any further name for promotion, as stated by the learned counsel for the appellant. Primarily, it is a case of declaring the appellant unfit for promotion for one reason or the other by the Central Selection Board which is based on his own record. It was submitted that no appeal could be entertained on this count. The judgment of Supreme Court, 1986 S C M R 64 is very clear on this issue. This does not give any cause' of agitation to the appellant and the appeal is, therefore, liable to be dismissed.

8. In view of the above discussion we are of the opinion that although the appeal is hit by proviso (b) of subsection (1) of Section 4 of the Service Tribunals Act, 1973 because it pertains to the decision taken by the CSB on the fitness or otherwise of the promotion of the appellant, we feel that in view of certain facts the case of the appellant should have been considered in the meeting of CSB held on 21st March 1983 because:‑ (1) In 1981 CSB meeting in which the appellant was not cleared for promotion one of the reasons was his adverse ACR for the year 1979. This ACR should not have been considered then. The adverse remarks were expunged in 1982. He should have been considered in 1983 meeting of CS to give him a fair chance particularly in view of the ante‑dating of the promotion of his colleagues. (2) In view of para V I of promotion policy, since the emphasise for promotion in the specialists cadres is on technical qualifications, experience and research publication, part II to V of these guidelines should not be strictly applicable to the Civil servants such as doctors, teachers, professors‑research scientists, etc. The appellant's name could be given a special consideration. He is highly qualified, experienced and has at least twenty research papers of International repute to his credit. He deserves a better deal.

9. We are, therefore, of the considered opinion that the name of the appellant should have been considered in the meeting of CSB held on 21st March, 1983 as a special case. The appeal is dismissed in view of the proviso (b) of subsection (1) of Section 4 of Service Tribunals Act, 1973 with the above‑said observation based on facts and merit. We, however, leave this question for the good judgment of the respondent‑department and the Establishment Division in the interest of fairplay and justice. Ordered accordingly. S. Q. /399/Sr.F.?????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.