1984 PLP 684 (SCMR)

M. S. H. QURAISHI, J.‑This is an appeal under Article 212(3) of the constitution from the order of the Service Tribunal dated 21‑1‑1981 dismissing the appellant's appeal.

2. The appellant, who had been a `B' Grade Clerk in India before the partition, was, on option given for service in Pakistan, allocated to the Finance Division. Having qualified at the Ministerial Services Examination held by the Federal Public Service Commission in undivided India, he was eligible for promotion to the post of an Assistant. He became due for such promotion on 9‑12‑1948 but by some mistake on the part of the Department he was promoted on 27‑6‑1949. However, in the result of his repeated protests the error was rectified by order dated 3‑8‑1973 and he was given his promotion and seniority as Assistant with effect from 9‑12‑1948. He then requested that he should be considered for promotion as Superintendent retrospectively on the basis of his having been an Assistant from 9‑12‑1948. This request was also accepted and by notification dated 2‑10‑1978 he was promoted as Superintendent with effect from 14‑7‑1954. Not satisfied, he next pressed for his promotion as Section Officer retrospectively from the date the inception of the Scheme on 1‑10‑1959. It is to be noted that he had actually been promoted as Section Officer on 27‑1‑1969 in the result of the First Promotional Examination 1967 held for the purpose. His request was, However, turned down on the ground that the previous seniority of Section officers, which was protected by rule 13(1)(iv) of the CSS (Class 1) Rules, 1965, could not be disturbed. He, thereupon, filed an appeal before the Tribunal.

3. It is to be noted that at the initial stages of the Section Officers scheme the appellant, who was still an Assistant, had been considered as such, for promotion to the post of Section Officer but as he had been ranted B‑II be was not accepted. The case of the appellant was that the yardstick for promotion was not the same for the Assistants as was for the Superintendents, for while 95% of the Superintendents got promotion as Section Officers, only 7 % of the Assistants could succeed. On this basis it had been contended on his behalf before the Tribunal that had he been given his due promotion as Superintendent in time, i.e., from 1954, he would have had a standing of five years as Superintendent and would have almost certainly been selected as Section Officer. The contention, however, did not prevail because in the Tribunal's view, even if no mistake had marred his record, "a `B‑II' Assistant would not be graded a better Superintendent" and he could have still remained ineligible for the promotion as even Superinten dents placed in that grading had not been accepted. The Tribunal further held that the acceptance of the appeal would serve no purpose inasmuch as "Establishment Division, if asked to re‑assess his work, will draw on his assessment, at the time, to place him even lower than `B‑II' because he could not be better Superintendent than an Assistant. Rejection will be the only result".

4. Leave was granted to consider :‑ "(i) Whether the order of the Services Tribunal could be sustained because it had taken into consideration some material which was presented to it behind the back of the petitioner, which was neither shown to him nor about which he was asked to comment and to decide the case entirely on the basis of such material ? (ii) Whether the Services Tribunal could refuse the relief merely on its opinion that the selection authorities would not select the petitioner, even if the case was sent back to them for this purpose ?".

5. After hearing learned counsel on both sides, we feel that all that the appellant could claim is a reconsideration of his case for promotion as Section Officer as if he had been a Superintendent at the relevant time in 1959. The fact remains that be had been considered for the promotion at that time though as an Assistant but had not been found acceptable. The contention that he would have had a better chance of promotion had he been a Superinten dent and not an Assistant, is rather hypothetical. In any case that claim was examined but not accepted by the Tribunal, which held that "Efficiency wise, he was much below the category eligible for entry into Section Officers Scheme". In regard to the objection to the Tribunal itself having decided the question of suitability of the appellant for promotion instead of referring the matter to the competent authority, we find that this Court had in M. Yamin Qureshi v. Islamic Republic of Pakistan (P L D 1980 S C 22), held that the Tribunal, for the purpose of deciding any appeal, was fully competent, and it was its duty, to examine on merits all questions of law and fact sought to be raised before it. Again, in Province of Punjab v. Ramzan Ali Khan (P L D 1982 S C 349), it had been held that "the Service Tribunal being an appellate authority, before which, on the preferment of an appeal against an order of a departmental authority, the whole matter gets re‑opened becomes empowered to confirm, set aside vary modify or substitute its opinion for that of the departmental authority". The Tribunal thus being fully competent to examine all questions raised before it could decide the matter and was not bound to refer the same to the departmental authority if such reference, in its opinion, would serve no purpose. As held by this Court in Secretary, Government of Punjab v. Ahmad Kamaluddin (1981 S C M R 392) "The limitations or the restraints exercised in giving relief in Constitutional jurisdiction do not extend to Tribunals and authorities which are enjoined to hear appeals and determine questions of fact as well as of law."

6. On the second point, on which leave had been granted, the learned Deputy Attorney‑General submitted that the record produced was of confidential nature and could not have been shown to the appellant. Be that as it may, we find and there is nothing to show otherwise, that no objection had been taken before the Tribunal to the production of the record relating to the appellant's assessment for the promotion.

7. We thus find no merit in this appeal which is accordingly dismissed. S. Q. Appeal dismissed.