1993 PLP (C (PLC(CS))

ABDUL RAZZAK A. THAHIM (CHAIRMAN): ‑‑Appellant Mr. Syed Shabbir Ahmed Hashmi after qualifying the Central Superior Services Examination in 1960, was appointed as Income‑tax Officer in B‑17 in December, 1961. He was given Grade‑18 in April, 1967 and in July, 1973 he was appointed Inspecting Assistant Commissioner in B‑19 and in January, 1981 as Commissioner of Income Tax in B‑

20. The Central Selection Board at its meeting held on 15‑5‑1991 recommended following officers for promotion to B‑21:‑‑ (1) Mr. Gulzar Qureshi. (2) Mr. Iqbal Junejo. (3) Mr. A.S.K. Sheerani. (4) Mr. Shamim Ahmed. (5) Mian lqbal Farid. (6) Mrs. Parvin Qadir Agha. The name of the appellant was not amongst those who were to be considered for promotion from BPS‑20 to BPS‑21 but his case was deferred. He therefore, made representation. He did not receive any reply and submitted another representation on 2‑9‑1991 after the publication of a notification dated 22‑8‑1991. It was also not responded. Therefore, he filed this appeal under section 4 of the Service Tribunals Act, 1973.

2. We have heard Mr. Sirajul Haq, Advocate for the appellant; It is argued that the appellant was eligible for promotion to B‑21 on the same date, along-with his colleagues mentioned as respondents 4 to 7 in the memo of appeal and deferment of the appellant is bad in law with no legal effect. It is also argued that the Central Selection Board at its meeting held on 15‑5‑1991 has not taken into account the ACR of the appellant for the year 1990 at the time of considering his promotion.

3. Mr. Niaz Ahmad Khan, Advocate appearing for the respondents 1 to 3 submitted that the case of the appellant was not deferred but he was superseded and erroneously in the minutes of the meeting the word `deferment' has been mentioned. He has also submitted that the jurisdiction of the Tribunal is barred under section 4(1)(b) of the Service Tribunals Act, 1973. The representative from the Central Board of Revenue was asked to seek instructions from the CBR if the ACR of the appellant for the year 1990 was placed before the Central Selection Board in their meeting held on 15‑5‑1991.

4. The promotion of the officers of the Income‑tax Group from BPS‑20 to BPS‑21 was considered by the Central Selection Board at its meeting held on 15‑5‑1991 and at item No. 6 the name of the appellant Mr. S. Shabbir Hashmi was also considered and from overall assessment his score was 71 which was on the lower side as compared to the respondents herein. The following is the decision of the Board with regard to Mr. S. Shabbir Hashmi:‑‑ "He was considered for promotion in 1988 and was superseded. Of the 36 reports initiated on his performance he has been graded Very Good in 4 and Good in 12 reports. His score for Overall Assessment (71) was on the lower side. The Board was of the view that the officer should wait for some time and improve his overall performance and as such recommended his deferment:" It is clear from the decision that the appellant was not found unfit and he was to wait for some time to improve because his overall assessment was less than those who were promoted. The only question before us is whether ACR of the appellant for the year 1990 was before the Central Selection Board at the time of considering the promotion of the appellant. The representative of the Central Board of Revenue has furnished the requisite information which is as under:‑‑ Mr. Mahmood Salim Mahmood, Secretary (DTA) (Kindly deliver it urgently). C/o Mr. S. Asghar Abbas, AC (Hqrs) RCIT, Karachi. Subject: Quantification of Mr. S. Shabbir A. Hashmi. Please refer to the Telephonic conversation of today. The ACR of Mr. S. Shabbir Ahmad Hashmi CIT for the year 1990 was not included in quantification for the CSS‑I held on 15‑5‑1991. (Sd.) ZA. Bangash CA to S(DTA),CBR." This statement is self‑explanatory and it is an admitted fact that ACR of the appellant for the year ending 1990 was not presented in the meeting of the Central Selection Board held on 15‑5‑1991, and in view of the letter dated 10‑10‑1992 from Mr. Mahmood Salim Mahmood, Secretary (DTA), Central Board of Revenue, placed on file, no quantification was made for the year under consideration in the overall quantification of the appellant. In these circumstances there is force in the argument of the learned counsel for the appellant that had the ACR of the appellant for the year 1990 been before the Central Selection Board, the position of the quantification might have been otherwise.

5. As regards the objection of the learned counsel for the respondents with regard to jurisdiction of the‑ Tribunal in matters of fitness for promotion, we are fortified with the decision of the Hon'ble Supreme Court reported in 1991 SCMR 1129 wherein it has been held that what is barred from the jurisdiction of the Tribunal is the question of fitness or otherwise and not the question of eligibility for promotion. In this case, there is no question of fitness of the appellant but the question of eligibility. Eligibility has also been taken into account by the; Tribunal in various decisions and it would be suffice to rely only on a decision of this Tribunal in Appeal No. 348(R) of 1987, dated 31‑1‑1989.

6. For the foregoing reasons, we would, in the interest of justice and fair-play, remand this case to the Central Selection Board/Establishment Division, to consider the ACR of the appellant for the year 1990 for the purpose of quantification and review the case of the appellant in the light of the above observations within two months, and report. The appeal stands disposed of accordingly. A.A./786/Sr.F Case remanded.