1987 PLP 598 (SCMR)

S. Mahmoodul Hasan, Advocate Supreme Court, instructed by M. Shabbir Ghaury. Advocate‑on‑Record for Appellant. S. Shahudul Haque, Advocate Supreme Court, instructed by Yousuf Rafi, Advocate‑on‑Record for Respondents Nos. 1 and 2. Respondent No. 3 in person. Date of hearing: 3rd September, 1986. MUHAMMAD HALEEM .J.‑‑ In this appeal, the appointment of respondent No. 3 on acting charge basis to the post of Director temporarily and until further orders with effect from 19th of November, 1984, is challenged on the ground that the appellant being the senior most Deputy Director was superseded, in flagrant disregard of rule 8‑B of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, hereinafter referred as the Rules Leave to appeal was granted to consider whether the case of the appellant was considered, at all, before appointing respondent No. l 3 to the post of Director on acting charge basis. Before adverting to merits, it would be relevant to mention that sub‑rules (6) and (7) of the Rules affirmatively lay down that such an appointment shall not be regarded as a promotion on regular basis for any purpose including seniority, and that further the acting charge shall not confer any vested right for regular promotion to the post or Grade held on acting charge basis. Subsection (1) of section 8‑B of the Rules further provides that where the appointee is not eligible for promotion because he does not possess the specified length of service, he shall be appointed to that post on acting charge basis. Keeping these considerations in view and having regard to rule 7 of the Rules, it requires to be seen whether the appellant could challenge the appointment of respondent No. 3. The learned counsel for the appellant was unable to satisfy us from the material on record that he had specifically taken the plea at any stage that his case was not considered under rule 7 of the Rules by the Central Selection Board. Even before the Tribunal the learned counsel concedes that this plea was not taken by him. On the other hand, he had challenged the appointment of respondent No. 3 on the ground of seniority which was repelled by the Service Tribunal. This is what it held: "No doubt, respondent No. 3 is not the most senior person on the list, nevertheless, the appellant who being senior to him having not been found fit for promotion, respondent No. 3 becomes the senior most civil servant eligible for promotion subject to the restriction that if he has not completed the requisite period of service, the appointment /promotion will be on acting charge basis. In the present also, the promotion having been made on acting charge basis, we do not find any illegality in the order." The finding of the Tribunal is that he was not found fit, and, accordingly, he was not appointed to the post of Director. This finding is not open to exception in view of section 9 (2) (b) of the Civil Servants Act, which provides that in the case of a non‑selection post. the promotion shall be on the basis of seniority‑cum‑fitness. Accordingly, it is not the element of seniority alone which is to be considered. Fitness is also an important consideration and has to co‑exist with seniority. We may emphasize that promotion cannot be demanded as of right and seniority by itself cannot confer any absolute right of promotion irrespective of other considerations. It will be for the competent authority to determine the suitability after an assessment of all relevant considerations such as seniority, competence, rectitude, annual confidential reports and none of which is less important than the other for the preservation of purity and efficiency in public service. The Deputy Director, Mr. Wasi Ahmad, was present on the date of hearing and we recorded his statement to the effect that the case of the appellant was considered by the Central Selection Board under the Establishment Division, but he was not found fit for being given the acting charge on the basis of his past service record. This statement was not rebutted. In this view of the matter, there was no violation of either Rule 7 or Rule 8‑B of the Rules nor can any prejudice be assumed by the appointment of respondent No. 3 to the post of Director on acting charge basis. His chance for promotion on regular basis is not affected, in any manner, by the appointment of respondent No. 3 on acting charge basis to the post of Director which under the Rules is not open to exception. In the result, we do not see any force in this appeal which is dismissed, but with no order as to costs. M.I. /N‑3/S Appeal dismissed