1995SCMR8 (PLP)

MUHAMMAD AFZAL LONE, J.‑‑‑This is an appeal, through leave to appeal, from the order of the Federal Service Tribunal, dismissing the appellant's appeal against the department's refusal to promote him to Grade‑19 and grant move‑over to that Grade.

2. The facts in brief are that the appellant, was an Assistant Professor in Grade‑18, and shown at Serial No.3 in the seniority list circulated on 13‑9‑1982. He was superseded and respondents Nos.4 to 6, on the recommendations of the Central Selection Board, were promoted and notified as Principals/Professors on 13‑11‑1985. further move‑over to BPS‑19 due to him from 1‑12‑1984 was also denied. After exhausting his remedy before the departmental authorities, he preferred an appeal before the Tribunal, which was dismissed vide order dated 29‑5‑1989, under challenge before us. With a view to demonstrate that the appellant's grievance, as to the denial of promotion to him, could not be agitated before the Tribunal; it referred to section 22 of the Civil Servants Act, 1973; which lays down that no representation lies in the matter/concerning the fitness of a person to be promoted to a higher post or grade. It also made a reference to second proviso to Rule 4 of the Civil Servants (Appeal) Rules, 1977, which ordains that determination of fitness to be promoted to higher post or grade is not appealable. In the same wake the Tribunal relied upon section 4(1)(b) of the Service Tribunals Act, which expressly takes away the right of appeal against the decision of the departmental authorities and provides: "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 post or grade:" The Tribunal also examined the merits of the appellant's case and found that he did not meet the standard required for grant of promotion. As regards move‑over from BPS‑18 to BPS‑19, in the opinion of the Tribunal, his poor record stood in his way.

3. We have heard the learned counsel, who vehemently tried to persuade us that the appellant is possessed of excellent service record and the Tribunal was wrong to hold otherwise. It was urged that he served as Principal from 9‑3‑1975 to 11‑2‑1976, 2‑6‑79 to 3‑10‑79, 18‑8‑81 to 10‑7‑84; he invariably achieved 100 per cent. results in Islamic Studies; that his work was appreciated and in recognition of his performance in August 1983 he was even awarded special honorarium. According to the learned counsel, there was absolutely no justification in refusing promotion in Grade‑19, to the appellant, and in any case denial of move‑over in that grade was wholly illegal.

4. There is not much in this case requiring serious consideration of the Court. It is in para. 2(g) of the Memorandum of Appeal that the appellant was considered by the Selection Board alongwith his juniors but was superseded; obviously for the reason that he was not found fit for promotion. The appellant had a right to be considered by the Selection Board alongwith his colleagues ,juniors to him, and this requirement of law, according to the appellant's own showing, was fully satisfied. As maintained by the Tribunal, in law no appeal lies against the determination of the fitness or otherwise of a person for promotion to a higher post or grade. His appeal before the Tribunal, in this view of the matter, was not competent. We have examined the service record of the appellant produced before us by the learned Deputy Attorney‑General. It does not at all endure the tall claims made by the learned counsel regarding the appellant's performance. Needless to state that he worked as Principal merely as a stopgap arrangement in his own pay and scale. To qualify for grant of move‑over from Grade‑18 to Grade‑19, the appellant should have earned "at least two good reports without any adverse entry during the last five years inclusive to the year of move‑over" (See Estacode, 1989, p.655). He claims move‑over from the year 1984 and thus five years period falling between the year 1980 to 1984 will be the relevant period. From the examination of the appellant's ACRs for this period, we find that he does not qualify for grant of move‑over. In this interregnum he earned only one good report and his other reports were just average so so. Move‑over to Grade‑19 was thus rightly denied to him. There is no merit in this appeal. It is dismissed but with no order as to costs. AA./M‑2062/S Appeal dismissed.