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Case No. 287/295 of 1983, decided on 13th December, 1983.

‑‑‑S. 4(1)(b)‑‑Jurisdiction‑‑Civil servant ignored for promotion due to adverse entry in Annual Confidential Report‑ Adverse remarks conveyed subsequently‑‑Denial of promotion challenged as unlawful‑‑Held: Appeal concerning determination of appellant's fitness or otherwise for higher post, does not fall within Tribunal's jurisdiction.

Iqbal Ahmad Qureshi for Appellant.

A.G. Humayun, District Attorney for Respondents.

Muhammad Ashraf has made this appeal under section 4 of the Punjab Service Tribunals Act, 1974 against the order, dated 29‑5‑1980 of the Deputy Director Food, Sargodha Region, Sargodha as affirmed by the Director Food Punjab, Lahore vide communication, dated 16‑5‑1983. By virtue of this appeal, he has prayed that these impugned orders be set aside. The appellant has impleaded the Director, Food Punjab, Lahore. The Deputy Director, Food Sargodha Region, Sargodha and Muhammad Hafeez, Senior Analyst, Office of the Deputy Director Food Sargodha, as respondents.

2. Brief facts of the case are that the appellant was working as Junior Analyst in the office of District Food Controller, Sargodha in the year 1980. A vacancy of Senior Analyst fell vacant on 15‑5‑1980. The appellant was considered for that post alongwith contesting, respondent No. 3 (Mr. Muhammad Hafeez) but the respondent No. 3 was promoted by the order of Deputy Director Food, dated 29‑5‑1980, though the appellant was senior to him. The appellant filed an appeal before respondent No. 1 on 26‑7‑1980 which was rejected by him vide his order, dated 16‑5‑1983. Hence this appeal.

3. I have heard the parties. It has been argued by the .learned counsel for the appellant that the appellant was senior to contesting respondent No. 3, hence, he should have been considered for promotion as Senior Analyst in preference to respondent No. 3. It has been further pointed out by him that the reason, given for ignoring the appellant for promotion viz‑a‑viz the respondent No. 3, was that the appellant had adverse entry for the year 1978. The Department Promotion Committee ignored the appellant for promotion during May, 1980 on the above ground i.e. adverse entry for the year 1979. This very adverse entry was conveyed to the appellant in 30‑8‑1980. Thus, the appellant was ignored on the basis of an adverse entry which was not conveyed to him by that time and he was not given a chance to represent for the same. Hence, ignoring the appellant for promotion in May, 1980 on above basis was unjustified and also unlawful. It has been prayed by the appellant's counsel that as the appellant was ignored for promotion due to unjustified reason, the respondents be directed to promote the appellant from the same date from which the contesting respondent No. 3, his junior was promoted as senior analyst, and the seniority of the appellant be restored.

4. On the other hand, the learned District Attorney relying on section 4(1)(b) of the Punjab Service Tribunals Act, 1974, has submitted that this appeal is not within the jurisdiction of this Tribunal as this section reads as follows:‑

"No appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade."

The matter agitated by the appellant in his appeal and argued by the learned counsel for the appellant is concerning the determination of the fitness or otherwise of the appellant for the higher post, hence this appeal does not fall within the purview of the Punjab Service Tribunal and is liable to be dismissed on this score alone.

5. I have given my anxious thought to the arguments advanced by the parties and have also consulted carefully the record of this case as well. The appellant has contested ' in his appeal the promotion of respondent No. 3 ordered by the Deputy Director of Food vide his order, dated 29‑5‑1980 and affirmed by respondent No. 1 in preference to the appellant, who was senior to respondent No. 3. Thus, the issue agitated by the appellant in his appeal is concerning the determination of his fitness or otherwise for the higher post. Hence, I am in agreement with the views of the learned District Attorney that this appeal does not lie within the purview of this Tribunal as per section 4(1)(b) of the Punjab Service Tribunals Act, 1974.

6. The upshot of the above analysis is that this appeal does not fall within the jurisdiction of this Tribunal and is dismissed as such. There will be no order as to costs.

M. I.

Appeal dismissed.

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