1998 PLP (C (PLC(CS))

ABDUL RAZZAQ A. THAHIM (CHAIRMAN).

These five appeals are on identical points. Appellants M/s. Muhammad Sajjad, Siraj Ahmed Jan, Javed Iqbal and Muhammad Anwar were promoted as U.D.C. (B-7) on 24-12-1984 and were given Selection Grade (B-9); while appellant Adil Nizam was promoted as U.D.C. (B-7) on 16-1-1985. The private respondents M/s. Muhammad Zubair Khan and Amir Mukhtar were appointed as U.D.C. (B-7) by direct recruitment on 16-6-1986 and 6-8-1990 respectively. Subsequently both the respondents were promoted as Assistant (B-11) vide order dated 26-1-1995, which gave cause of grievance to the appellants and have come before the Tribunal by way of these appeals. The learned counsel for the appellants has argued that all the appellants are senior as U.D.C. (B-7) and have been granted Selection Grade B-9, (except one Mr. Adil Mukhtar) on the basis of their good performance, and the D.P.C. has arbitrarily superseded them unjustly and juniors have been promoted, as Assistants (B-11) contrary to the rules, as promotion was to be made on seniority-cum-fitness basis.

2. The comments have been filed by the respondent-department. The position as stated above about the service structure of the appellants and the private respondents is not denied, but the learned Standing Counsel has raised the objection that the Tribunal cannot go into the question of fitness of the persons' under proviso (b) to section 4(1) of the Service Tribunals Act. 1973. It is argued that the D.P.C. considered the cases of the appellants and recommended the promotions of the respondents. Therefore, these appeals are liable to be dismissed on this point.

3. The departmental representative Mr. Nisar Muhammad, Section Officer is present on behalf of the official respondents and we put the question whether there was anything adverse against the appellants, to which he submitted that all the appellants enjoyed good service record.

4. The question before us is whether the appellants were eligible for "promotion as Assistant (B-11) and the D.P.C. had rightly applied its mind or. arbitrarily discarded the appellants. The admitted position is that the appellants are senior to the respondents and four of them have been granted Selection Grade B-9, which is normally allowed on the basis of good service record, and there being nothing adverse against them, the D.P.C. in contravention of the rules, exceeded its limits, and recommended the supersession of the appellants, and the result was that most juniors were promoted as Assistant (B-11). It is a clear case of injustice and favourtism. We are sorry to note that the competent Authority also did not take notice of such glaring illegalities and approved the promotions of the respondents without any cogent reasons or justification.

5. Coming to the point of jurisdiction, it is a well-settled proposition of law that promotion is not a vested right of a civil servant, but he has a right for consideration of his name as when the cases for promotion in his cadre are taken up and he can challenge his supersession before the Tribunal, as the case may be. No doubt, under proviso (b) to section 4(1) of the Service Tribunals Act, 1973, there is bar that no appeal shall lie to the Tribunal in cases of determining the fitness or otherwise of a person to be appointed to. or to hold a particular post, but the Tribunal can go into the question of eligibility and to examine whether any injustice has been done to an aggrieve civil servant, and on this point, we rely on the judgments of the Hon'ble Supreme Court reported in PLD 1980 SC 22; 1991 SCMR 1129 and ; PLD 1994 SC

539. Therefore, in view of the law laid down by the Hon'ble Supreme Court, we hold that the Tribunal can go into the question of promotion where injustice has been done to the civil servants, and we repel the objection of the respondent department.

6. For the foregoing reasons, we allow these five appeals and direct the appellate authority to review their cases in the light of above observations and pass appropriate orders. H.B.T./95/Sr.F???????????????????????????????????????????????????????????????????????? Appeals allowed.