1988 PLP (C (PLC(CS))

MUNAWAR ALI KHAN, (Chairman).‑‑Aggrieved by the order of Secretary to Government of Sind, Wild Life and Forest Department dated 28th July, 1985, the appellant, Hassan Ali Baloch has preferred this appeal. The appellant's case, in brief, is that he was appointed as Assistant Conservator of Forest on 25‑9‑1969 whereas the respondents Shaukat Ali Arain and Abdul Rasheed Kharal joined the Forest Department in that capacity on 3‑10‑1970. The said two respondents were subsequently promoted as Conservators of Forest by two separate notifications dated 6th December, 1983 and 31st May, 1964 respectively, Meanwhile, promotion of the appellant was withheld until 24th June, 1984 when he too was promoted as Conservator of Forest. Since the appellant was shown senior to the above two respondents in the cadre of Assistant Conservators in the seniority list published by Notification No. S.O. (FT)7/3‑70 dated 30‑4‑1970, he represented against their promotion to the higher post whereupon he received a reply from the Secretary to Government of Sind vide his letter dated 26th February, 1984, intimating him that on his passing of the departmental examination, his case had been referred to the Chief Secretary for reconsideration by the Provincial Selection Board (I1), and restoration of his promotion with effect from 19‑4‑1977 and in the meantime as the matter was pending before the Service Tribunal, no further action could be taken by the Secretary's Office.

2. The appellant's further plea as contained in the memo of appeal is that a number of Divisional Forest Officers were promoted as Conservators of Forest without passing the departmental examination and as such the passing of departmental examination has never been a condition precedent for promotion as Conservator of Forests. Accordingly by invoking Rule 13 of the Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, hereinafter referred to as the Seniority Rules, the appellant claim seniority over the above two private respondents in the cadre of Conservators of Forests. We heard the arguments of the learned counsel for the appellant as well as of the learned counsel for the respondent A.R.Kharal and learned Government counsel. We also considered the relevant documents in the light of the arguments addressed at the bar. The impugned order which the appellant has sought to be set aside `is reproduced as under:‑ "The appeal dated 31st March, 1985 filed by Mr. Hassan Ali Baloch, Conservator of Forest, Ram Ranga Management Circle, Hyderabad has been considered and rejected."

3. Unfortunately, a copy of the appeal referred to in the above order, has not been placed on record. Nevertheless, it is stated in the opening paragraph of the memo of the appeal that by the impugned order the appellant's appeal for seniority against respondents Nos.l and 2, in B S 19 as Conservators of Forests was rejected. Again in para 8 (i) of the memo of the appeal the appellant has claimed seniority over the said respondents on the strength of Rule 13 of the Seniority Rules. Thus, it becomes clear that by the impugned order he was refused the benefit of Rule 13 of the Seniority Rules. In other words his claim that he was senior to the aforesaid respondents in the cadre of Conservators of Forests on the basis of the said rule was not accepted. It goes without saying that appellant was senior to both the private respondents in the lower cadre of Assistant Conservators (Divisional) Forest Officers. Despite that, his promotion was withheld and the said respondents were promoted as Conservators of Forests earlier than the promotion of the appellant. The learned counsel for the appellant attached the withholding of the appellant's promotion as Conservator of Forests, contending that the passing of the departmental examination due to which his promotion was delayed had nothing to do with the appellant's eligibility for the promotion. Therefore, the learned counsel was of the view that even though his promotion was postponed without any justification, he could not be made to suffer in seniority vis‑a‑vis the two private respondents in the cadre of Conservators of Forests. In support of his arguments he placed reliance on Rule 13 of the Seniority Rules. In order to appreciate the argument that the appellant was entitled to the benefit of the above rule we may reproduce it for the sake of convenience as under; "(13) A civil servant, who is not promoted on his turn on the ground that‑‑ (i) his seniority is under dispute or is not determined ;or (ii) he is on deputation, training or leave; or (iii) disciplinary proceedings are pending against him; or (iv) he is not considered for promotion for any reason other than his unfitness for promotion; shall, on subsequent promotion, subject to any order made by the competent authority in this behalf for the purpose of inter se seniority in the higher grade, be deemed to have been promoted in the same batch as his juniors."

4. It is clear from clause (iv) of the above rule that if any civil, servant is not promoted on his turn on account of any reason other than his unfitness for the promotion, he on his subsequent promotion will enjoy the same seniority position in the higher cadre as was assigned to him' in the lower Cadre via‑a‑via his juniors promoted earlier. The above rule further provides that such benefit of seniority allowed to the civil servant will be subject to any order made by the competent authority for the purpose of inter se seniority in the higher grade. Keeping in view the requirements of the above rule, first of all we have to ascertain the reason of the postponment of the appellant's promotion. In this connection our attention has been drawn to the minutes of the meeting of the Selection Board No. II held on 30th October, 1983 in which the appellant alongwith the above two respondents was considered by the Board for promotion to the post of Conservator of Forests. It would appear from the said minutes that the appellant was passed over for promotion though the respondents were cleared for the same. The observations made by the Board about the appellant are as under:‑‑ "While this officer had the required length of service, he had not passed the departmental examination of Forest Officers so far. This year he had appeared in the departmental examination but failed. He was therefore passed over for promotion."

5. As regard the above two respondents, the Board noted that Mr. Shaukat Ali Arain and Mr. A.R Kharal passed the departmental examination, securing 74 marks and 72 marks respectively against the required minimum marks of

60. After going through the observations of the Selection Board as stated above, we have no doubt in our mind that the only reason for delaying the promotion of the appellant was his failure to pass departmental examination. This has been reiterated in para 5 of the written statement filed on behalf of the Secretary of the Forest Department. The next point for our consideration is whether the appellant's promotion could be withheld on account of his failure to pass the departmental examination. The argument of the learned counsel for the appellant was that passing of the departmental examination was not mandatory nor was it a condition precedent for the appellant's promotion. According to him the appellant could pass the departmental examination even after his promotion to higher post of Conservator of Forests. In support of his argument the learned counsel referred to the concrete instances of the Forest Officers specified in Para 7 of the memo of the appeal who were promoted without passing the departmental examination. However, we find that the contents of this Para have been denied by the Secretary, Forest Department as misconceived vide the written statement filed on his behalf. In view of the denial made by the official respondent, the burden was on the appellant to prove his point. He has no doubt referred to, several notifications in the memo of his appeal in proof but he has placed on record only one such notification dated 4th January, 1978. All that this notification shows is that Messrs G.D.Memon and Bahauddin Sirhindi were confirmed as Divisional Forest Officers w.e.f. 31st August, 1964 and 17th December, 1970 respectively. Surely such notification cannot be accepted as proof of the promotion of the said officers without passing the departmental examination.

6. On the other hand our attention was invited to the Sind Civil Servant (Departmental Examination) Rules, 1978 which came into force on 1st February, 1978, much after the aforementioned notification of 4‑1‑1978. Rule 3 of these rules provided that if so directed by the Department, a civil servant appointed to a post or service by initial recruitment or otherwise shall pass departmental examination. However, proviso (b) to the above rule exempts that civil servant from passing the departmental examination who has passed any such examination under the old rules. It appears from Para 8(i) of the written statement filed on behalf of the Secretary Forest Department that on coming into force of the Sind Civil Servants (Departmental Examination) Rules 1978 the Forest Department had issued a Notification No.WL&FT (SOI) 5 (21) 973 dated 25‑4‑1978 obviously under Rule 3 of the said Rules, requiring all the Forest Officers to pass the departmental examination within a period of one/two years. In these circumstances the question of applying the above rules to the appellant retrospectively did not arise.

7. It is not the case of the appellant that he had passed the departmental examination under the old rules. Therefore, as required by rule 3 of the Departmental Examination Rules 1978 read with the administrative Department's Notification dated 25‑4‑1978 hereinabove, the passing of departmental examination was mandatory for the appellant. The contention of the learned counsel in this regard had obviously in force. His argument that appellant could pass the departmental examination even after his promotion was equally untenable. The examination that he was required to pass as Assistant Conservator could not be passed by him after his promotion to higher post. As for the argument of the learned counsel for the appellant that the appellant's promotion was not dependent on his passing of the departmental examination, he did not show us the relevant rules laying down the criteria of eligibility for the promotion. On the contrary as pointed out above, the appellant was required to pass the prescribed departmental examination while acting as Assistant Conservator. Besides this, we have come across the S & GAD's Notification No.S.O.IX‑REG (S & GAD) 2/6/3‑75, dated 23rd November, 1982 wherein it has been clarified that those who fail to clear the departmental examination within the prescribed period will have to be dealt with in accordance with section 6 of the Sind Civil Servants Act 1973 subsection (3) of the said section 6 which is relevant for our purpose reads as under. "6 (3) Where in respect of any service or post, the satisfactory completion of probation includes the passing of a prescribed examination. Test or course or successful completion of any training, a person appointed on probation to such service or post who, before the expiry of the original or extended period of his probation, has failed to pass such examination or test or to successfully complete course or the training shall, except as may be prescribed otherwise‑ (a) if he was appointed to such service or post by initial recruitment, be discharged; or (b) if he was appointed to such service or post by promotion or transfer, be reverted to the service or post from which he was promoted or transferred and against which he holds a lien or, if there be no such service or post, be discharged. Provided that, in the case of initial appointment to a service or post, a civil servant shall not be deemed to have completed his period of probation satisfactorily until his character and antecedents have been verified as satisfactory in the opinion of the appointing authority." It is thus clear that failure to pass prescribed examination entails the penalty of discharge in case of the civil servant appointed I by initial appointment and that of reversion in case of the promotees. In the instant case since the appellant had failed to pass departmental examination prescribed by the rules, he could not expect to move to higher post by way of promotion. Accordingly we are of the view that his promotion to the post of Conservator of Forests was rightly withheld until he had cleared the departmental examination. In our opinion passing of prescribed examination was certainly included in the factors constituting the eligibility for the promotion.

8. The last point to be considered is whether the appellant is entitled to benefit of Rule 13 of the Seniority Rules. As is clear from the rule reproduced above, the appellant would get the benefit of the said rule only when we are satisfied that firstly, he was ignored for promotion not on the ground of his being unfit for the promotion and secondly that no adverse order was passed by the competent authority with regard to his inter se seniority in the higher cadre, we have already held in the foregoing paragraphs that passing of prescribed departmental examination formed a part of his eligibility for the promotion. Since he failed to pass whereas his two juniors (private respondents) did pass that examination he was passed over for promotion and his said juniors were cleared for the same quite rightly. This clearly indicated the superiority of the merit of the appellant's juniors in relation, to the appellant. To put it in short the appellant was not as fit for the promotion as his two juniors were. Accordingly we are of the view that the appellant was ignored for promotion on the ground of his unfitness, as he had failed to pass the departmental examination. Furthermore, while clearing the appellant for promotion in its subsequent meeting held on 31st March, 1984 the Selection Board No.II made specific recommendation that the appellant would not get the benefit of Rule 13 of the Seniority Rules. In this connection may reproduce the recommendation of the Board in its own words as under: "He was therefore cleared for promotion as Conservator of Forests with immediate effect with benefit of Rule 13 of Probation, Confirmation and Seniority Rules 1975."

9. The perusal of the Rule 13 would show that benefit of senior to be allowed under that rule is subject to any order passed by the competent authority with regard to inter se seniority of the civil servant concerned in the higher grade. In the instant case since the competent authority on recommendations of the Selection Board No.II had disallowed the benefit of Rule 13 to the appellant he could get the same. In this connection the learned counsel for the appellant submitted that the discretion vested in the competent authority under the above rule could not only be reviewed but the order passed by the said authority in exercise of such discretion could be set aside by this tribunal if it was satisfied that the discretion was not exercised in accordance with the legal requirements. We agree with the learned counsel that the competent authority had to exercise its discretion judiciously and not arbitrarily. After due consideration of the circumstances of the case, we find no arbitrariness in recommendation made by the competent authority. Since the appellant a, juniors (two private respondents) had established their superiority of merit over the appellant by clearing the departmental examination not only in the first attempt but also much before the appellant cleared the said examination, it was neither proper nor just to allow the benefit of seniority to the appellant in the higher cadre. Therefore we think that the appellant was rightly refused the benefit of seniority over the respondents in the higher cadre as Conservators of Forests; The upshot of the above discussion is that the appeal filed by the appellant is without merit and it is dismissed with no order as to costs. A.A/139/Sr.S Appeal dismissed.