1. SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).--The facts which have led to the filing of the present appeal are that Mirza Muhammad Aslam respondent No. 4 on the recommendation of Public Service Commission was promoted from the post of Line Superintendent in Electricity Department of Azad Kashmir to that of Assistant Engineer Electricity by the respondent No. 1 vide its Order No. 1292-98 dated 20-4-1974 (Annexure `II' with -the appeal) and later on the vacancy caused by his retirement on 17-11-1975 was filled in by the appointment of Iqbal Mohi-ud-Din respondent No. 5 by an order No. 324339 dated 19-11-1974 of respondent No. 1. Feeling aggrieved by the aforesaid orders the appellant who held the appointment of Line Superintendent in the Electricity Department has preferred the present appeal under section 4 of Azad Jammu & Kashmir Service Tribunal Act, 1975 (hereinafter referred to as an Act) with the prayer that by setting aside the impugned orders the respondent No. 1 by directed to promote the appellant to the post of Assistant Engineer Electricity from the relevant date.
2. As regards the impugned order of the promotion of respondent No. 4 the same has been assailed by the appellant on the grounds that it had been recommended by respondent No. 3 and made by respondent No. 1 in flagrant disregard of service rules applicable to the Government employees and the orders of the Government prescribing District-wise quota to the services. In this connection it has been contended that under rule 25 of K. S. R., Volume II promotions are required to be made on the basis of merit and ability, seniority, being considered only where the merit and ability are approximately equal but this rule has been violated by ignoring the better merit and ability of the appellant as, compared to the said respondent inasmuch as the appellant is a holder of Diploma of Associate Engineers awarded by West Pakistan Board of Technical Education Lahore on the basis of three years training course undergone at Polytechnic Institute Sialkot whereas the respondent No. 4 besides being only a Middle pas: has not received any Technical Education or training from any School or Institute. It is further, alleged that the said respondent was previously reverted from officiating appointment to the post of Assistant Engineer Electricity as he was not found suitable for the same by the Public Service Commission which this time contrary to its previous opinion regarding the unsuitability of the said respondent recommended him for promotion in preference to the appellant. With regard to the allegation of ignoring the orders of the Government prescribing quota of various district in the services it is contended that in accordance with Government prders issued in this behalf the vacancy which was filled by the promotion of respondent No, 4 fell to the share of the District Poonch to which the appellant belongs as the post reserved for district of respondent No. 4, i.e. Muzaffarabad had already been held by the person of that district.
3. The grievance of the appellant against the impugned order of the appointment of Iqbal Mohi-ud- Din respondent No. 5 is that it had been passed in derogation of orders of the Government prescribing ratio of quota for appointment to the posts of Assistant Engineer by promotion from within the Department and by direct recruitment and the quota of various districts in the services.
4. The contention of the appellant in this respect is that Government have reserved 25 % posts of Assistant Engineer Electricity for the departmental promotees and as such the vacancy caused by the retirement of respondent No. 4 was to be filled in by promotion from within the department inas--much as after the direct recruitment of respondent No. 5 only one post was held by the departmental promotee out of total 8 posts of the Assistant Engi--neers Electricity arid that according to puota prescribed for various districts -in the service the respondent No. 5 could not be appointed as the -vacancy was to be filled in by appointment of the person belonging to the district other than that of the said respondent. It is further alleged that before the appointment of respondent No. 5 the appellant was promoted to the post of Assistant Engineer Electricity falling vacant on the retirement of respondent No. 4 by the Minister of Works but his orders were not given effect to by the Department.
5. Ex parse proceedings were taken against respondent No. 5 who refused to take delivery of the notice of appeal sent to him by registered post. The other respondents have put in written objections which are mainly to the effect that the appellant does not possess better merit and ability as compared to respondent No. 4 who was promoted in preference to him on the recommendation of the Public Service Commission which considered both the appellant and the said respondent for promotion, and that the respondent No. 4 has received training as Meter Inspector and Line Superintendent and that the District-wise quota system is applicable only in case of direct appoint--ments and not to the promotions from within the department.
6. Mr. Sakhi-uz-Zaman, Deputy Secretary Works was examined by the Tribunal as C.W.I who got his statement recorded in respect of service particulars of the appellant and the respondents Nos. 4 and 5.
7. We have heard the learned counsel for the parties and have also gone through the relevant record of the case. The learned counsel for the respondents Nos. 1 to 3 have raised the preliminary objection that in view of the provision contained in proviso (b) (i) to section 4 of the Act this Tribunal is debarred from entertaining the present appeal to the extent of impugned order of promotion of respondent No. 4. They have elaborated this point by contending that before making its recommendation for promotion to the post of Assistant Engineers from amongst Line Superintendents the Public Service Commission had considered the comparative merit and ability of the appellant along with other Line Superintendents including respondent No. 4 who having been found comparatively more suitable was recommended for promotion in preference to appellant to the respondent No. 1 who accepting their advice promoted him. It is thus, argued that the impugned order regarding the promotion of the respondent No. 4 in fact relates to the decision or order of the competent authority regarding the fitness or otherwise of the appellant and respondent No. 4 to be promoted to higher post which decision cannot be challenged before-the Tribunal in accordance with proviso (b) (i) to section 4 of the Act which specifically ousts the jurisdiction of the Tribunal to entertain an appeal against the order or decision of the departmental authority determining the fitness or otherwise of a person to be promoted to a higher post or grade. This argument of the learned counsel for the respondents has much substance in it. It will be appropriate; for the sake of facility of discussion, to reproduce the relevant portion of section 4 of the Act which reads as under:-
4. Appals to Tribunals-Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service including disciplinary matter may, within thirty days of the communication of such order to him or, within six months of the establishment of the appropriate Tribunal, whichever is later prefer an appeal to the Tribunal Provided that-
(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining -
(i) the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade:- As would appear from the plain reading of the above the restriction is placed on the powers of the Tribunal to hear an appeal against the decision or order of the departmental authority determining the fitness or otherwise of a civil servant for promotion to higher post or grade and, in our opinion, the above provision of law is fully applicable to the facts of the present appeal. There is no denying the fact that Public Service Commission before making their recommendation for suitability of the departmental candidates for promotion of the posts of Assistant Engineer Electricity considered the cases of few Line Superintendents including the appellant on merits and also interviewed them and recommended respondent No. 4 in preference to appellant for promotion to respondent No. 1 who gave effect to their recommendation. This means that on the basis of merit and ability the respondent No. 4 was found more suitable than the appellant for promotion to the higher post and thus in the present appeal the decision of the departmental authority regarding the fitness or otherwise of the appellant and respondent No. 4 for promotion to higher grade is called in question.
8. This being the case the appeal against the impugned order of promotion of respondent No. 4 clearly falls within the proviso (b) (i) to section 4 of the Act, which places a complete bar on the jurisdiction of this Tribunal to entertain an appeal against such an order or decision of the departmental authority. Had the appellant been not considered on merits along with the respondent No. 4 for promotion at the time of filling the vacancies of Assistant Engineers, then of course his case could not have been covered by the provision of law referred to above contemplating a bar on the entertainment of an appeal by this Tribunal because in that case it could not be argued that the appeal pertains to the decision or order of the departmental authority determining the fitness or otherwise of the person to be promoted to the higher post.
9. When a person is not considered at all for the promotion, it cannot, by any stretch of imagination, be said that he was not found fit for the promotion. But here in the instant case, as already stated above, the appellant's name was sent to the public Service Commission along with other Line Superintendents for consideration for promotion to the post of Assistant Engineer but he was not found suitable to be recommended for promotion in preference to respondent No. 4 who was promoted in pursuance of the recommendation of the Public Service Commission.
10. In view of what has been said above, there remains no doubt that the point involved for determination in the present appeal is the fitness i.e otherwise of the appellant and respondent No. 4 to be promoted to higher post which point having already, been decided by the competent authority cannot be made the subject of appeal by virtue of provision contained in proviso (b) (1) to section 4 of the Act which clearly excludes the jurisdiction of the Service Tribunal to entertain an appeal against the order of departmental authority whereby fitness or otherwise of a person to be promoted to bight grade or post is determined. Even otherwise we are of the firm view that it is the exclusive prerogative of the competent authority to be the sole judge of the matter determining the suitability or otherwise of a person to be promoted to a higher post and this Tribunal would be travelling beyond its province if it sits on the Judgment of the competent authority on such matter.
11. So far as appeal against the impugned order of appointment of respondent No. 5 is concerned we are also of the view that the same is not maintainable as well being fully hit by the proviso (a) to section 4 of the Act which makes it obligatory on civil servant aggrieved by the order of the departmental authority made in respect of terms and conditions-of his service to avail of his right of appeal, application for review or representation, whichever is provided by rules governing his service before approaching this Tribunal for redress of his grievances. In the instant case the appellant had the right to file a review application against the said impugned order under rule 49 of K. S. R., Vol. II but, as is evident from record, he without preferring an application for review to the Government has come to this Tribunal against the impugned order of appointment of respondent No. 5. He originally lodged an appeal only against the promotion order of respondent No. 4 but during its pendency amending his appeal made respondent No. 5 also a party and challenging his appointment order as well sought its cancellation. There is no doubt about the fact that the appellant did not avail of departmental remedy available to him by way of review against the impugned order of appointment of respondent No. 5 before coming to this Tribunal for redress of his grievances thereby causing inability for this Tribunal to proceed in the matter. Thus we have no choice but to hold that the present appeal against the respondent No. 5 is also unsustainable by reason of absence of jurisdiction caused by the failure of the appellant to file a review application against the impugned order to the Government in the first instance before seeking his remedy before this Tribunal.
12. For the foregoing reasons the appeal is liable to be dismissed in toto for want of jurisdiction, and is accordingly dismissed with no order as to costs.
13. KH. GHULAM QADlR, MEMBER.-I agree.