1980 PLP 11 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑‑This petition for leave to appeal arises out of the dismissal of a service appeal by the Central Service Tribunal constituted under Service Tribunal Act LXX of 1973. The petitioner was appointed as Tracer in the Railways in 1944. He claims to have been promoted as. grade II Tracer in 1947 and confirmed therein in 1957. He further claims to have been promoted as Draftsman grade III (subsequently described as grade 1) and further that he was promoted as Draftsman grade IV (Subsequently described as grade II) In 1960. On 9-4-1970 he was reverted from grade II (Officiating) to grade I on the ground that he had failed to pass the necessary test. By the same order on the same date respondents 3 and 4 were appointed as Draftsman grade 11 and grade III respectively. Aggrieved by the order of the reversion, he filed a civil suit but on coming into force of the Service Tribunal Act LXX of 1973, the suit abated and after completing the necessary formalities and exhausting the departmental remedies he filed the appeal before the Service Tribunal which was dismissed on 21st September, 1978. Therefore this special leave to appeal petition. The Service Tribunal has given the finding that the petitioner was called upon to appear in an ability test but according to the record he had refused to do so. This was the main reason why the petitioner was not promoted and instead chance was given to respondents 3 and

4. The learned counsel for the petitioner has tried to show that, as he put it the so‑called "ability test", was an illegal imposition and the petitioner was not required under the law to go through the same. His contention, which is based on an involved reasoning is that there were two channels for appoint ment one through promotion and the other through direct recruitment. The fiat channel was for non‑technical employees while the second one was for the benefit of those who had obtained technical qualifications. And because the petitioner's case fell in the first category, therefore, the requirement of his appearance in the ability test would not apply. The second line of argument advanced by the learned counsel is that Draftsman grade It was initially a selection post but later on in view of a correction slip issued in December, 1964, (but implemented in February, 1966) it became a non -selection post. The appointment to a non‑selection post, the learned counsel further argued, would be governed by rule 5 (Rules governing the promotion of class III staff under Appendix XI) as modified by the aforementioned correction slip; which lays down that promotion to non‑selection posts shall be made from amongst staff normally eligible for such promotion in accor dance with the orders or practice regulating such promotion, It also provides that the promotion to non‑selection posts shall be made "in the order of seniority of the men concerned, a senior man being passed over only if he has been declared unfit for holding the post in question". The learned counsel laid stress on the afore-quoted provision contained in rule 5(6) and argued that the petitioner being senior to respondents Nos. 3 and 4 was entitled as of right to be promoted in preference to them, the only bar being if he was declared unfit as provided therein. And in order to how that he was not unfit to hold the post the learned counsel relied on a statement showing particulars of staff eligible for appointment of Draftsman grade IV issued in 1964, in the last column whereof the assessment `very satisfactory' is recorded against the name of the petitioner. In order to complete the argument, the learned counsel also pointed out that the petitioner and 8 others protested against the imposition of the condition of ability test in 1965 through a formal representation sent to the Vice‑Chairman, Pakistan Railways, respondent No.

1. It is mentioned in the representation made in this behalf that the Vice‑Chairman had issued a policy letter wherein the condition of the ability test was imposed. The petitioner and others filed protest and had requested the Vice‑Chairman that the orders contained in his policy letter be withdrawn, but it is admitted by the learned counsel that despite the protest the said orders were not withdrawn. In order to justify the attitude of the petitioner in refusing to abide by the said orders and join the ability test the learned counsel further explained that the policy letter was issued by the Vice‑Chairman in 1965 while the correction slip with rule 5 referred to above was issued in 1966. And because according to rule 5, as contended, the basis for promotion was seniority and there was no condition therein of an ability test for promotion, the policy letter issued by the Vice‑Chairman would be deemed to have been superseded by the aforementioned correction slip and the rule. The first argument of the learned counsel, namely, that the petitioner could seek promotion in the category of non‑technical staff without going through the process of any technical qualification of an ability test would depend upon the result of the second contention raised by him as to whether the petitioner could seek promotion to a non‑selection post (if at all the post concerned is in non‑selection cadre) without going through the ability test. As noted earlier main stress of the learned counsel is on that part of rule 5 which provides that promotion to such posts would be made in the' order of seniority. But he forgets that this general provision which recog nises seniority for promotion, is subject to another condition that the senior person is also found fit for holding the post. There can be several methods of discovering the fitness or otherwise of a person to hold a certain post. Although the reliance of the learned counsel on an earlier report that the work of the petitioner in 1964 was very satisfactory would not be irrelevant for the purpose of considering his fitness for promotion but to say that there can be no other mode for judging the petitioner's fitness or otherwise would not be correct. Laying down a policy that fitness would, be judged, amongst others, through an ability test would, not be a method foreign to the intent and purpose of the rule relied upon by the learned counsel. The letter of the Vice‑Chairman laying down the policy in this behalf and which it appears also contained specific orders relating thereto, has not been placed on record. But the learned counsel has argued the petition on the assumption that the said letter contained the provisions for a test to discover the ability of a candidate to hold a certain post. If that is so, the ability test which the petitioner refused to undergo was not such an imposition which could not be provided under the law. The petitioner should not have dictated his terms to the authorities as to how they should decide the question of fitness or otherwise. The policy laid down as also the ability test devised in this behalf, cannot be considered an against any law or principle nor can it be considered a; unfair. The petitioner by refusing to go through the test is himself responsible for the so‑called grievance he suffered on account of failure to gain promotion. The learned counsel also tried to argue that even though the petitioner was subsequently promoted, he has been rendered junior to respondents 3 and 4 because of the orders passed on 9‑4‑1970, impugned before the Service Tribunal. As discussed above the refusal of the respondents to promote the petitioner without his going through the ability test cannot be held to be illegal. If he could not be promoted, at a certain stage, it. cannot be held that no other person should at ail have been promoted then to fill the vacant post(s). That being so the petitioner cannot have any grievance regarding the question of seniority either. None of the arguments raised by the learned counsel has any force. This petition, accordingly, fails and is dismissed.