1989 PLP (C (PLC(CS))

SYED ALLY' MADAD SHAH (CHAIRMAN).

Appellant Mr. Sharif Pervaiz a Senior Research Officer in the Defence Science and Technology Organisation Defence Production Division has Preferred this appeal for his promotion from B-18 to B-19. His case, briefly stated, is that he is an M.Sc. in Physics with specialisation in Electronics and was directly recruited as a Research Officer (Electronics) (B-17) in February 1966 and was promoted as Senior Research Officer (B-18) in April, 1974. According to him, he had several achievements to his credit in his field. His seniority position in the seniority list published under DESTO's No. 3068/2/DESTO/Labs' dated 27th September. 1983 was at S. No. 3, while the respondents Nos. 4 and 5, M/s. Arshad Ahmad and Nasim lqbal, respectively, occupied positions at S. Nos. 4 and

5. In March 1983 there were four vacant posts of Principal Research Officers (B-19), three in Chemistry discipline and one in Electronics discipline. To his misfortune, he was superseded by his juniors, the respondents 4 and 5, vide DESTO,s Notification No. 1067/1/A/DESTO/Admin-I, dated 7th February, 1984. He made representation to the Secretary, Establishment Division through the Defence Production Division. His representation was withheld. He made another representation that his earlier representation may be forwarded to the Secretary, Establishment Division. He was informed under letter No. 1068/119/DESTO/ Admn. II dated 9-12-1984 that he had not made out a fresh ground for consideration of his appeal. He, therefore, fled this appeal on 10-1-1985.

2. The appellant has urged in his memo of appeal that he was holding the current charge of the post of Principal Research Officer (B-19) when regular promotions to the post of Principal Research Officer (B-19) were considered and there was nothing against him that he was liable to be superseded. His grievance is that his case was not processed for promotion in accordance with the recruitment rules and the promotion policy.

3. The respondents have resisted the appeal contending that the appellant was considered for promotion by the Central Selection Board but he was not found upto the mark and was, therefore, superseded. They have advanced legal objection that no appeal lies as regards promotion in view of proviso to subsection (2) of section 22 of the Civil Servants Act, 1973 and proviso (b) to subsection (1) of section 4 of the Service Trills Act, 1973.

4. There is no dispute to the service career of the appellant as well as to his position in the seniority list. It is also not disputed that he was superseded by his juniors, the respondents Nos. 4 and 5 at the stage of promotions to B-19. There were four posts for promotions in B-19, three posts in Chemistry discipline and one post in Electronic discipline. The learned counsel for the appellant has advanced the argument that all the four posts to be filled in were to Scientific Group and they were open to the eligible candidates irrespective of the field of their specialised discipline, but the appellant was considered only for one post in the Electronic discipline and that treatment was against the rules. He has made reference to the letter dated 11th February, 1987, whereunder the appellant's promotion was notified. According to him, the policy of promotions discipline-?wise was introduced much later vide Notification dated 22nd February, 1988. He has also made reference to the Recruitment Rules of 1976. He has relied upon a decision of this Tribunal in the case of S. Afzal Hydri v. Secretary, Establishment Division, reported in 1985 P L C (C.S.) at page

521. He has also urged that the appellant was superseded on incorrect quantification of his calibre and performance. He has also made grievance that the appellant was subjected to discriminatory treatment and he has made reference to the promotion of one Dr. Zaheer Muhammad Khan whose case was identical to that of the appellant and was promoted. On the other hand, departmental representatives have submitted that promotions to B-19 are made in a specialised field and the appellant was considered in his own field of specialisation and was superseded by the Central Selection Board strictly in accordance with the promotion policy and rules. They too have made reference to the promotion rules in support of their submissions. According to them, there was no discrimination in the case of the appellant. They have stated that the case of Dr. Zaheer Muhammad Khan was on better footing and he had earned promotion on merit. The respondent No. 5 (Mr. Nasim Iqbal) also has urged that the Central Selection Board had made comparative evaluation and he was preferred for promotion to the appellant in accordance with the promotion policy and rules. Of course, respondent No. 4 (Mr. Arshad Ahmad) did not appear at the hearing of appeal, although he had filed written objections. They have placed on the record a photostat copy of the minutes of the Central Selection Board.

5. As per recruitment rules for Grade-17 to Grade-20, in the Defence Science and Technology Organisation, published by the Ministry of Defence under No. 692/76, the following conditions are laid down for promotion of Senior Research Officers to the posts of Principal Research Officers:- (a) 12 years service in Grade-17 and above, relaxable to 7 years service in Grade-18 for those recruited initially in Grade-18. (b) Ability to guide Research/Development Production work with some publications in standard journals/Technical Reports/Patented Processes. The appellant has also added in the memo of appeal the third condition for promotion as under:- (c) Ph.D or M.Sc. (Engg.), or B.Sc. (Engg.)/M.Sc. in the related discipline with good academic record and 12 years subsequent experience in R & D Production. It would appear that the condition at clause (b) "Ability to guide research/development production work" does have reference to the related discipline and it was in that context that the appellant's suitability for promotion was considered in his specialised field of electronics and he could not be considered for any other discipline as he could not guide research/development production work in any other field. Out of the four posts available for promotion, three posts were in the Chemistry discipline and there was only one post in the Electronic discipline. There were two candidates in the field, the appellant and the respondent Mr. Nasim lqbal. It appears from the minutes of the meeting of the Central Selection Board that the overall evaluation of the appellant was below that of the respondent Mr. Nasim Iqbal and, therefore, the latter was selected for the post. The respondent No. 4 (Mr. Arshad Ahmad) was considered in the field of Chemistry discipline and was selected for promotion. The case of S. Afzal Hydri v. Establishment Division, reported in 1985 P L C (C.S.) at page 521 relied upon by the learned counsel for the appellant has distinguishable facts any circumstances and is not applicable to the appellant's case. There is also no force in the alleged grievance of discrimination as it appears from the minutes of the meeting of the Central Selection Board that the candidate Dr. Zaheer Muhammad Khan was promoted on his merit which was better than that of the appellant. Accordingly, the appellant does not have a case on merits to succeed. Consequently, the appellant's case has no legal platform as well. It is laid down in the proviso to section 22 of the Civil Servants Act, 1973 that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to higher post or grade. It is also provided in proviso to Rule 4 of the Civil Servants (Appeal) Rules, 1977 that no appeal or review shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade. These two barring provisions are upto the departmental level. There is also bar to an appeal to this Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or to hold a particular post or to be promoted to a higher grade, as contained in proviso (b) to subsection (1) of section 4 of the Service Tribunals Act, 1973.

6. For the reasons recorded above, there is no merit in appeal and it is dismissed with no order as to costs. AA./468/Sr. F? Appeal dismissed.