' JUSTICE SHAHZAD AKBAR KHAN (CHAIRMAN).---The appellant Syed Kamal Hussain Shah Senior Civil Judge (BPS-18) filed this appeal calling in question the decision of the Administration Committee of High Court whereby, on superseding him, some other Judicial Officers were promoted to the rank of Additional District and Sessions Judges (BPS-19), The prayer of the appellant was to the following effect:-- "On acceptance of this appeal order may kindly be passed for the promotion of the appellant to the rank of Additional District and Sessions Judge with all back-benefits."
2. Subsequently another Appeal bearing No.3/2003 was also filed by the appellant with a similar prayer. Since the matter pertains to the promotion of the appellant and involves identical question of law, therefore, our this order shall govern the disposal of both the appeals.
3. On 5-11-2004 through an order recorded in Appeal No.3/2003 this appeal was also adjourned for the purpose of considering the question of its maintainability in view of section 5 (b) (i) of the N.- W.F.P. Subordinate Judiciary Service Tribunal Act, 1991 which shall hereinafter be referred to as the Act. Owing to its relevancy the relevant provision of section 5 of the Act is reproduced hereunder: , "(b) No appeal shall lie to the 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."
4. The learned counsel appearing on behalf of the appellant has argued that the above quoted provisions should not come into the way of the appellant as the question of promotion stems out of the terms and conditions of his service, therefore, he can seek his remedy through the instant appeal. The second limb of his argument was that as the above quoted provision is not in conformity with the N.W.F.P. Service Tribunals Act, 1974 therefore it cannot take away the vested right of the appellant. On this feature of the argument he made reference to clause (b) (i) of section 4 of the ibid Act of 1974 which is in the following manner:-- "(b) No appeal shall lie to a Tribunal against an order decision of a departmental authority determining--
(i) the fitness or otherwise of a person to be appointed to a higher post or grade,"
' As an endeavour to make benefit of the ibid Act of 1974 he urged that in clause (b) (i) the words "or to be promoted to higher post" have been omitted, therefore, such words appearing in section 5
(b) (i) of the Act which impede the way of the appellant should be taken out of consideration. The learned counsel has placed reliance on the judgment of the Honourable Supreme Court of Pakistan reported as Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and others (1991 SCM R 1129) .
5. We have anxiously, considered the arguments of the learned counsel for the appellant.
Admittedly, the instant appeals are filed under section 5 of the Act which is a special enactment and this Tribunal is also created under the same Statute. As per its Preamble the Act covers the matters relating to the terms and conditions of service of members of Subordinate Judiciary of the N.-W.F.P. And for matters connected therewith or ancillary thereto. The law is familiar on this point that a special law must be taken as exhaustive in the subject it enacts. Rights not expressly conferred by it cannot be allowed to be spelt out by means of analogy nor can consideration of exigency and convenience unwarranted by the terms of Statute be called in aid to enlarge the scope of its provisions. If there is a Special Act and a General Act that has been called in aid by the learned counsel for the appellant being N.-W.F.P. Service Tribunals Act, 1974, dealing with the same matters, the Special Act shall override the General Act. The Legislature while enacting a law is expected to be mindful of its earlier legislation and when a subsequent Special Law is enacted in a manner somewhat different to the earlier law, the difference if any shall be regarded as intentional and not unconscious. The known rule of the Interpretation of Statute is that the general provisions do not derogate from the special provisions but the latter do derogate from the former. To what extent the provisions of a special enactment override the provisions of a general enactment must depend upon the language of the Special Act.
6. Proceedings upon the above legal principle there remains no doubt to hold that the provisions of the Special Act shall override the provisions of the General Act, i.e. The N.-W.F.P. Service Tribunals Act, 1974. The language of the Act is plain and clear which spells out the clear intention that no appeal shall lie to this Tribunal against the 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 post. Obviously, the prayer of the appellant is for promotion to a higher post. The judgment of the Honourable Supreme Court of Pakistan cited at the bar is also of no help to the appellant. It is clearly held therein that what is barred from the jurisdiction of Service Tribunal is the question of fitness of a civil servant for promotion not the question of eligibility to promotion. In other words, if we are not erring in properly appreciating the ratio, the Service Tribunal is vested with the jurisdiction to determine the eligibility of a civil servant for his promotion but the determination of fitness is out of its domain. Admittedly, the case of the appellant was considered by the learned Administration Committee but he was not found fit for promotion. Thus it was only the fitness of the appellant which was determined and not his eligibility.
7. On the foregoing statement of law and facts we see no force in the arguments of the learned counsel for the appellant. Resultantly, it is held that the instant appeals in view of their subject- matter i.e. The solicited promotion, are not competent before this Tribunal. Both the appeals are, therefore, dismissed in limine.