Omer Ali Khan (Petitioner) VS Federation of Pakistan & Ors (Respondent)

t ORDER SFIEET

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INJ'THE HIGHL]OLTITT OF SINDH. K,.{RA'CHI

C. P. No.D-2019 of 2008

Date Order with signature of Judge

Petitioner Omer Ali Khan through N4r. Abdul Razzak advocate Pal'istan Steel ll{ills tlrouglr I{r. 1{.G. Dastagir, ad!'ocate' N,ITTFIAN,INIAD KARIN{ KTL\N .A. HA..I . The petitioner claims that he is regular employee of Paliistan steel Nlills and is presently working as Nlanager srrce

02.1.1989. The petitioner was promotEd to the grade of Executive Engineer on

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01.7. 1984 and as a Manager (Engineering Cadre) on 02. 1. 1989.

2.According to the petitioner. he was given adverse remarks in his ACR for the year 2(n3 by respondenr No.3 r.ide letter No.A&P-ACR-2005/24 dared 05.1.2005 with the wordings "NoI yet fit fbr Promotion". The Incharge (ME7IC)' Pakistan Steel Ntills endorsed tfie ACR with the remarks "the offrcer required to improve vigilance and accuracy of work". Such remarks were given bv respondent No.4- who was the reporting officer of the ACR for the vear 2003. The petitioner preferred Appeal to the Chairman of respondent No.l ride his Ap,peal dated 13'1.2005 followed by reminder dated 28.3.2005 for expunction of the above advsrse rernarks but no response was received from the respondent No.2.

3.We have heard leamed cormsel for the respective parties and with their "t assistance have gone through the material available on the record'

4.karned counsel for the petitioner has contended that the petitioner was entrusted 14 enquiries of officers and the petitioner gave impartial frndings in all the enquiries. This was the reason that the management of respondent No. I was annoyed with the petitioner'. Learned counsel for the petitioner has further contended that for the frst time in ssra"ice. the petitioner was conveYed such highly irresponsible corunents in his ACR for the l'ear 200f and the same are engineered in order to g

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block future prospects of his promotion The petitioner is a qualified and experienced person and deserved to be prornoted as Deputv General lvlanager but the officers who were junior to him were promoted and the petitioner was discriminated in such manner

5.He has further submitted that the petitioner was deprived fiom his legitimate and overdue promotion to next higher grade of Deputv General Manager on seniority-cum-fitness basis. He has vehementlv contended that the petitioner was apprised of the adlerse rernarks of the ACR for the vear 2003 just onlv seven days before the Departmental Promotion L-ommittee was held in the vear 2005. In support a of his contentions. learned counsel for the petitioner has relied upon the cases of SIL{HID AMIN rnDER v. SE(-RET,C,RY. IvttNiISTRY OF HE,{LTH (2002 SCtvIR

870)and KHUDA BAKHSH v. DEPUTY COMIVtrSSIONER CAPITAL

DEVELOPMENT ALITHORITY (1999 SCIvIR 1589). These cases. however. are of little assistance to the petitioner as they are distinguishable on lacts and circumstances of his case. 'Ihis is because their primarilv concern is with the petitioner's right to be heard in respect of adverse commcnts in ACRs. Such a right is accepted. however. the petitioner's denial of promotion wa$ not based solely on the adverse comments in his ACR. The decision re-qarding promotion was largely guided bv the applicants' ACR grading over a period of five years and not adverse comments alone.

6.lrarned counsel for Pakistan Steel Mills has contended that promotion in Pakistan Steel Mills is governed bv Pakistan Steel Officers Service Rules and Regulations. Hc has drawn our attention lo paragraph 2.31 of the Pakietan Steel Officers Service Rules and Regulations which provides that employees for promotion from Ir{anager to Deputv General Manager (as is the petitioner's case) is a Selection Post wherebv applicants are to be selected on a best out of best formula other than on senioriff-cum-fitness basis bv the Selection Board. Learned counsel hAS rEfCNEd thc CASE Of G()VERN]VIENT OF PAICSTAN V. FLA,I\{EED AKHTAR MAZI (PLD 2003 SC ll0). and has drawn our attention to paragraphs 22to25 of

t1 I in this case and are the said judgment which the Court cites below with approval reproduced herein below:-

It may be "22. Section 9 of the Act of 1973 deals with "Promotion'' rcgxdh.g"selection post' or'hon-selection post"' In case of seleotion promotion is merit' posf as ilvolved in tirese rnattcrs, the criterion for while in case of non-selection post it is done on the basis of seniority- and the cum-fitness. No cilil seLant cun asL for promotion as a rigfut giving or refusal of promotion is a matter' which is within the exclusive domain of G governmenvexecutive authority' If a promotionis denied to a cil'il sert'ant it could not be termod as denial of any frrndamontal right.

postulates

23.Perusal of scction 9 of the Acl of 1973 rmequivocally rest upon that cnterionfor selection for promotion to the higher-grade cao docision of the competent authority. No other forunvauthority assume the duties, which specificallv have boen assign'ed to the 7 competent authori$'.

24.The seniority is one of the factor. which is considered for promatiotr, but senioritl' alone is not enough' Promotion is not but it <lepends upon so many other factors' such as' "utomatic, competense. availability of post and antecldent stc' None of these factors is less impotant than senioritl" For promotion all these factors. o,n case-to-case basis, are to be determined'

25.On the basis of improved seniority" the benefit of promotiou as a

mrtter of right in seiection grade' could not be claimed nor the Tribunal was competent to gr*t it from back date' as it was explicitly beyond its jurisdiction. fn? requirements for promotion msntionsd relevant earlier n'ere not examined b1' thi compe tefit authodty af the time, as such the same could not be granted by the Tribunal'" considered 7 . We hate carefullY examined the rnaterial available on record and steel offtcers the ar.guments of learned counsel. Paragraph 2.34 of the Pakistan seniority is not an service Rules and Regulations makes it clear that the question of would be applied issue for promotion in this case rather the best out of best formula on the ACR lt to the applicants and the promotion would be based on merit' Data repofis. submitted alongwith the comments of the respondents Nos.2 to 15. clearly

petitioner' had bstter indicate that atl the applicants lvho were promoted ahead of the the petitioner' grading in their ACRs over the five vear period 1999 to 2003 than Therefore. it is clear that the promotion criteria acloptecl was not based solely on

adv'erse remarks rather it was targely based on merit according to average petitionerobtained ACR gradingof eachapplicant during the last fire "'ears' Ths -t9.8o,.o aterage marks lbr the last file vears whilst those appointed in all

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-t h a cases got a minimum average of over 67 '4on fot the last five

heard bv the thar the petitionr was accorded an oppornudw of being Board alongwith the other applicants and as such it cannot be said

was discriminated against in any way during the promotion exercise'

by which

8.Above are the reasons ofour short order dated 1l'3'20O9' dismissed the petition in limine'

Karachi Judge March 13, 2009

\b".\ ! r:hieilustice

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