1. ABDUL MAJEED MALLICK, J.-Mr. Ahmad Shamim was appointed as In--formation Officer on 9-4- 1956 and was posted at Rawalpindi. On retirement of Ghulam Ahmed Tarali, Deputy Director, also posted at Rawalpindi, the vacancy was to be filled in on the recommendation of Public Service Commis--sion. Mr. Ahmad Shamim, petitioner qualified for the promotion and was promoted as such on 2-1-1974, with the condition that he shall report at Muz--affarabad. On account of preliminary posting at Rawalpindi, the petitioner 'made representation for continuance of his posting at Rawalpindi against the aforesaid vacancy, on 9-1-1974. Despite the representation of the petitioner, one Mr. Mujahid Naqvi was appointed as Deputy Director instead of the petitioner and was posted at Muzaffarabad. The petitioner submitted another representation against the revocation of his promotion and appoint--ment of Mr. Maiahid Naqvi. The representation was pending when on its own convenience, the Government reverted Mr. Mujahid Naqvi as Assistant Director and recruited one Mr. Abdul Rashid, as Deputy Director. Later on, the post of Assistant Director headed by Mr. Mujahid Naqvi was also upgraded as Deputy Director alongwith the promotion of Mr. Naqvi. Meanwhile, the post of Director Information fell vacant and the same was referred to the Public Service Commission. Mr. Abdul Rashid was not considered fit for the post by the Public Service Commission. The petitioner made further appeal/representation to the Government, reiterating his merits and demand for promotion to the post of Director Information, one of the merits being that the petitioner had previously acted as Deputy Director and Director Information. On 21-10-1975, the Prime Minister considered the appeal/representation of the petitioner, also heard Mr. Abdul Rashid and accepted the appeal; representation of the petitioner, thereby promoting him to the post of Director Information. w. e. f. 12-10-1975. The order of the Prime Minister is attached with the petition as Annexure `D'. On 16-11-1975, ride President's order, the seat of Director Information was shifted from Muzaffarabad to Rawalpindi with the direction and confirmation that Mr. Ahmad Shamim promoted as Director Information shall function as such at Rawalpindi. By the order of the President dated 16-1 I-1975, the promotion made by the Prime Minister was confirmed. With effect from 21-10-1975, the petitioner continued to serve as Director Information till 1-2-1979 when he was reduced to the rank of Deputy Director in N. P. S.-18 by the order of respondent No. 1. The reason advanced in the impugned order was that the promotion of the petitioner being against the rules was without lawful authority. Paras. 1 to 8 of the petition, enumerating history of service and qualifica--tions of the petitioner were admitted to be correct by the respondents with exception of paras. 5, 7 and 8 wherein it was averred that the petitioner failed to comply with the promotion order on account of which :evocation of his promotion was justified.
2. It was also stated that the petitioner failed to appear before the Public Service Commission for the post of Director, Information. It was further stated that the promotion of the petitioner was made by the Prime Minister without seeking previous recommendations of the departmental Secretary or Secretary Services as well as without the recommendations of the Public Service Commission or Selection Board. This being the position, it is evident from the written statement that the promotion of the petitioner to the post of Director Information was annulled on the ground that the Prime Minister, at the time of promoting the petitioner, failed to seek the recommendation of the Secretary of the Department or Secretary Services or Public Service Commission or Selection Board.
3. According to the written statement, the impugned order was passed on the basis of the report of the Selection Board. The report of the Selection Board was summoned by this Court and paced on the file.
4. Mr. Rafique Mahmood Khan, the learned Additional Advocate-General challenged the competence of this Court for reviewing the impugned order on ouster of jurisdiction. He referred to section 4 of the Azad Jammu & Kashmir Service Tribunals Act, 1975, and pointed out that the Service Tribunal alone was competent to look into the matter. He referred to PLD 1958 Kar.
1. In that case, the petitioner was appointed as Officiating Postmaster General w, e. f. 9-7-1956. As the petitioner was about to retire in December 1957, he wits given to understand that no extension would be allowed after Superannuation. About six months after his temporary promotion, i.e. In December 1956, the petitioner was posted as Assistant Director-General, definitely lower in rank to that of Postmaster General, without show-cause notice. The petitioner challenged the reversion on the points :-
(1) That he was not given any show-cause notice;
(2) that his promotion being bona fide and by a competent authority, could not be set aide by an administrative order.
5. The learned judges, Mr. Justice Inamullah and Mr. Justice Waheeduddin Ahmed, JJ. Accepted the petition and quashed the impugned order. The citation is neither applicable to the facts nor to legal proposition of the Present case. PLD 1958 Kar. 35 referred by the learned Additional Advocate-General is also not applicable to the facts and the legal proposition of the case. In that case, Moazzam Hussain Khan, petitioner was serving as Director Intelligence Bureau Karachi since 1953, for a period of 3 years. On 30-3-1957, his services were placed at the disposal of Government of East Pakistan. This order was challenged on the ground that the post of Director Intelligence Bureau, Karachi being a tenure post for 5 years, the petitioner could not be sent back to East Pakistan at the disposal of the Provincial Government which tantamount to reduction in rank. It was held that provision of show-cause notice was necessary even if the reduction in rank was not by way of penalty or punishment. It was further held that in case of a tenure post, it was incumbent entitlement to hold the post for full length of period declared for such post. This finding was upset on appeal before the Supreme Court in PLD 1959 SC 13. Precisely, it was observed that Moazzam Hussain Khan was officiating as A. I.-G. Police East Pakistan in 1948 and was appointed as Deputy Director Intelli--gence Bureau, Dacca. The normal tenure for the post of Deputy Director was 4 years. He .Vas given extension for 2 years, and before the expiry of extension period, he was promoted to the post of Director Intelligence Bureau, Karachi, for which the normal tenure was 5 years. It was further observed that the post in question was a special tenure post, not being on the cadre of posts for that service in which the petitioner was employed, employment of such post was essentially in the nature of a concession or favour which could be withdrawn by the Government earlier if such action became necessary in the interests of public.
6. Reference was also made to Mir Saddar-uh-Din and others v. Azad J & K Government (PLD 1976 Azad J & K 1). According to the facts of the case, the Government by an amendment in K. S. R. Vol, I; enforced rule 4-A whereby the Govern--ment reserved its rights to retire Government Officers on pension after the completion of 25 years service in the public interests. In exercise of this right, the petitioners were made to retire from service w. e. f. 17-9-1975. This order was challenged in a w-it petition before a Division Bench of this Court comprising Mr. Justice Sardar Muhammad Sharif Khan and Mr. Justice Raja Muhammad Khurshid Khan. JJ., wherein it was held that as the impugned order of compulsory retirement related to the terms and conditions of service, the Administrative Tribunal exclusively could decide the matter. Without making any comment on the view expressed by the learned Judges suffice it to say that the proposition and facts of that case are quite different from the instant one. Under section 4 of the Azad Jammu and Kashmir Service Tribunals Act, 1975, it was provided that any civil servant aggrieved by any final order, original or appellate, made by the Departmental authority, in respect of any of his terms and conditions of service including disciplinary matters, may, within the stipulated period, prefer an appeal to the Tribunal. A plain reading of this section would show that the jurisdiction of the Tribunal related to the matters of civil servants pertaining to terms and conditions of service. An exception was provided under clause (b)
(i) wherein it was provided that no appeal shall lie to the Tribunal against an order or decision of departmental authority, deciding 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 or the quantum of departmental punishment or penalty except dismissal, removal, reduction in rank or compulsory retirement. It is evident from the wording of .This exception that where a case pertaining to fitness to appointment or holding of a particular post or promotion to a higher post or grade is concerned, in such like orders or decisions of the authority, the Tribunal has no jurisdiction. In view of the facts enunciated above, the present case was neither case of modification or change in terms and conditions of service nor any punishment enumerated above, as the disciplinary matters. The petitioner was promoted as Director information by the Prime Minister and this promotion was confirmed by the order of the President later on and as such cancellation of order of promotion without attributing penalty, is covered by proviso to said section. Therefore, we are the view that the objection pertaining to jurisdiction stands repelled.
7. The impugned order is based on the report of the Selection Board where--in it is held that the promotion of the petitioner was bad for the reasons :-
(1) The petitioner failed to avail of his promotion as Deputy Director in 1974;
(2) At the time of promoting the petitioner to N. P. S. 19, seniority of Assistant and Deputy Directors in N. P. Ss. 17 and 18 was not considered;
(3) The promotion was not based on the recommendation of Selection Board;
(4) The condition of 13 years Class I service prior to promotion to N. P. S. 19 was relaxed without the previous consent of the Finance Department; and
(5) Promotion from N. P. S.-16 to N. P. S.-19 being double promotion, was illegal.
8. The aforesaid grounds for reversion are silent on terms and conditions of service of the petitioner.
9. Similarly, no indication pertaining to the punishment or penalty was given. Precisely, the text of the grounds pointed out the fitness of the petitioner to uphold the post of Director Information. Where a question of fitness of holding post is involved, there is hardly any reason to hold that the Service Tribunal could exercise its jurisdiction in the matter. In similar circumstances, the proposition of jurisdiction was raised in PLD 1976 Lah. 287. According to the facts of the case, the petitioner participated in Selection Test for the post of Junior Statistical Officer which was a Selection Post.
10. There were three persons who applied for appearance in the test. One failed to appear, the other failed in the test and the petitioner being alone qualified in the Selection. As the selection was approved by the Vice-Chairman who was the competent authority to notify the appointment of the petitioner to the post of Junior Statistical Officer, instead of appointing the petitioner, a fresh test for selection was notified. This order was challenged by the petitioner in a civil Court. The jurisdiction of the civil Court was challenged on the ground that as the matter related to the terms and conditions of service, the civil Court had no jurisdiction. It was observed as-under :- "----------S. 4(1), proviso (b)-Conduct of authority, competent to make formal appointment, amounting to decision that civil servant should not be considered to be fit person for promotion- Matter, held, covered by proviso (b) to section 4(1) to which jurisdiction of Tribunal does not extend-Civil Court's jurisdiction in such matter not barred."
11. In the present case promotion being made by the Prime Minister, a competent authority, an order modifying the same and making reversion, could not be determined by the Service Tribunal. This Court is quite competent to review the impugned order. The other reason, as pointed out earlier, is that terms and conditions of service are least affected and they continua to be the same. It is only fitness and competence of the petitioner which has been hit. Thus it is clear that in view of facts given above, petition cannot be rejected for lack of jurisdiction.
12. On merits, the claim of the petitioner was not seriously challenged by the respondents. Despite that, we feel obliged to examine the impugned order in the eye of law, in order to test its correctness and propriety. As stated earlier, the promotion of the petitioner was made by the Prime Minister. Under section 58 of the Azad Jannmu & Kashmir Interim Constitution Act, 1974, the Rules of Business were framed in 1975. Under rules 5 and 21 of the Rules of Business, functions of the Prime Ministers are given. Under rule 5(.2), it is provided that no order shall be issued without the approval of the Prime Minister in cases enumerated in Part-A of Schedule VII. Schedule VII, Part A (11) provided that all cases relating to appointment, removal of service against officers in Grade 17 and officers of equivalent rank and status and above be submitted to the Prime Minister for his approval before issue of orders. Rule 21 provides that the approval of the Prime Minister will be obtained before issue of orders in cases relating to appointments and promotions to the posts mentioned in Schedule-IV. Schedule IV, relates to the appointments and promotions of senior Officers including all Heads of Attached Departments. Thus, the promotion of the petitioner to the post of Director Information was within he jurisdiction and competence of the Prime Minister, section 8 of the Civil Servants Act, 1976 deals with the promotions of civil servants. Under section 8(1), a civil servant possessing prescribed minimum qualification was eligible to promotion reserved, under rules, for departmental promotions in and higher grade of the service or order to which he belonged. This may be stated over here that this is not a case of the respondents that at the time of the promotion of this petitioner, the post was not available for depart--mental promotion. Section 8 is the only section under Civil Servants Act, 1976 which deals with the promotion of civil servants. Under this section, a civil servant, holding minimum qualification was eligible for promotion to a departmental post in any higher grade. There is no limitation or condition that promotion would be made only to immediate higher post. The use of words "in any higher grade" makes a provision for the promoting authority to promote a person, in view of his qualifications, to any appropriate post. Therefore, finding of the Selection Board that the promotion of the petitioner from N. P. S. 16 to N. P. S.-19 was against rules, carries no weight in the eye of law.
13. This allegation is also refuted by the fact that the petitioner was already selected by the Public Service Commission, fit to be promoted as Deputy Director. It was not on account of any disqualification or unfitness that the promotion of the petitioner was withdrawn. The Government for its own convenience, shifted the seat of Deputy Director from Rawalpindi to Muzaffarabad, on account of which the petitioner was handicapped. This shifting of seat and withdrawal of promotion of the petitioner was sub-judice before the Government on the basis of his representation. Secondly, on the appoint--ment of Mr. Mujahid Naqvi, the petitioner challenged the said appointment through an appeal/representation. As the post of Director Information fell vacant; the petitioner once again forced his claim through appeal/representa--tion. The perusal of the order of the Prime Minister dated 21-10-1975 shows that all appeals/representations made by the petitioner were considered and the other Person, Mr. Abdur Rashid who was supposed to be affected by the acceptance of appeal, was afforded an opportunity of being heard and it was on his admission of the merits of the petitioner that the promotion of the petitioner was ordered. This claim of the petitioner is not refuted by the respondents. Therefore, we are of the view that while passing the order of promotion of the petitioner, the Prime Minister determined the first promotion of the petitioner as Deputy Director Information. As valid and holding it so, treated the petitioner as Deputy Director continuously till he was promoted as Director Information w. e. f. 21-10-1975.
14. Therefore, in view of the order of the Prime Minister, the allegation of double promotion stands refuted.
15. Reversion to a lower grade of service can be made under section 11 of the Civil Servants Act, 1976, and under this section, a civil servant appointed to a higher post or grade on ad hoc or officiating basis, was liable to reversion to a lower post or grade without notice. No other ground of reversion except punishment was provided under law. The case of the petitioner was neither of an ad hoc or officiating promotion nor of an punishment and as such the reduction in rank was in contravention of the provisions of law. As mentioned earlier, the impugned order was passed on the basis of the report of the Selection Board. It becomes essential to examine as to whether the Selection Board has been clothed with the powers to review the orders passed by the Government or not? The provision of Selection Board has been made under the Rules of Business at page 15 where under section 20, the Government is empowered to constitute one or more Selection Boards and to specify the appointments and promotions to be made on the advice of such Selection Boards.
16. Section 4 of the Civil Servants Rules, 1977 made a provision for the constitu--tion of Selection Board.
17. In view of the provisions of section 4 of the Rules, a Selection Board was notified on 29-5-1977. It is on the recom--mendation of the Selection Board that the impugned order has been passed. We are not provided with airy material by either side :o hold that there was any Selection Board at the time of promotion of the petitioner. Believing it for the sake of argument that there was a Selection Board, unless we are shown by the learned Additional Advocate-General that the Prime Minister, at the time of passing the promotion orders, was under obligation to ask for the recommendation of the Selection Board, if any, we cannot hold that the order of the Prime Minister was suffaring from such defects. At the time of promotion of the petitioner, Civil Servants Act, 1976 and Civil Servants Rules, 1977 were not enforced and the same were enforced much after that. The Civil Servants Act and Rules are expressly prospective. This being so, no illegalty can be attributed to the order under this law. No other law prevailing previously was referred, on the basis of which, promotion order could be examined. Similarly, in absence of constitution of any Selection Board, the Civil Servants Act and Civil Servants Rules prevailing today, it would be difficult to hold that the promotion order of the petitioner suffered from any legal defect. Moreover, no law has been cited to show that the Selection Board constituted under section 4 of the Civil Servants Rules, 1977 is empowered to sit over the orders and decisions of the Government or Prime Minister, 'made in 1975. Even otherwise, it appears improper that a body created by the Government sits over its decisions and orders and reviews of the same. On this petition of state of law, we hold that the Selection Board had no jurisdiction to examine, scrutinize and review the orders passed by the Government.
18. The impugned order appears to have been passed under section 12-A of the Azad Jammu and Kashmir Civil Servants Act, 1976. Section 12-A was incorporated by an amendment through an Ordinance of 1978. Section 12-A is reproduced as under :- "12-A. Certain persons to be liable to removal or reversion.-Notwithstanding anything contained in his terms and conditions of service, a civil servant appointed or promoted during the period from sixteenth day of April 1975, to the eleventh day of August 1977, may be removed from service or reverted to his lower post or grade, as the case may be, without notice, by the President or a person anthorised by him in this behalf, on such dates as the President or, as the case may be, the person so authorised may, in the public interest, direct."
19. Under this section, the appointments and promotions of civil servants made between the 16th of April 1975 and 11th of August 1977 were made liable to termination and reversion, without notice, by the President or a person authorised by him, as the President or the person so authorised by him, may, in the public interest, direct. In an unreported case entitled "Maulvi Mahmood-ul-Hassan v.
20. Azad Government", decided on 13-5-1979 by a Division Bench of this Court comprising my Lord the Chief Justice and myself, section 12-A being discriminatory and inconsistent to Fundamental Right No. 15 provided in the Azad Jammu & Kashmir Interim Constitution, 1974, was struck off. This provision of law is not only discriminatory and as such violative of fundamental rights, it is mala fide as well. A persual of the provision of this Section shows that it is in the nature of screening of the Government servants. As a rule of prudence, it is essential that a definite guideline, formula or standard may be laid down, in order to remove a person from service or revert him to a lower rank.
21. No such guideline, formula or criteria has been provided on the basis of which it may be ascertained that a particular civil servant or number of civil servants or claw of civil servants, whose appointment or promotion was made in between the stipulated period, would have to undergo a test for upholding the appointments and promotions. The wording of this section suggests that an arbitrary power was provided in order to take action against any civil servant without assigning any reason or issuance of notice for proposed action. Law is always reasonable and for the protection of the citizens. Any law which manifestly is unreasonable and against the interests of citizens, cannot be considered a good law. In our view, section 12-A, manifestly is not a good law. Similarly, the phrase in the public interest" under the circumstances like the present one, would require always examination and scrutiny of superior Courts. Unless the Court is satisfied that the action taken against a citizen was warranted in the. Public interest, the same could not be protected in the garb of law- In the present case, it has not been shown in the report of the Selection Board or the impugned order as to how the reversion of the petitioner was in the public interest, In written statement, the meritorious services rendered by the petitioner, his literary status, intellectual height, calibre, Departmental/qualification and fitness to hold office, was admitted to be correct by the respondent's it was also not urged that the petitioner failed to possess a particular qualification in order to perform the functions of Director Information. On this view, it cannot be accepted that the impugned order was passed in the public interests.
22. Lastly, it may be pointed out that report of the Selection Board and reasoning thereunder, was not supported by reference to relevant provision of law. The Prime Minister was within his power to promote the petitioner. In addition to this, the promotion order is self-speaking, no motive, defect or illegality could be attributed to it. Even if there was any objection for previous approval, no such irregularity was pointed out by the Finance Department, Departmental Secretary or Secretary Services and General Administration. Thus defect or irregularity, if any, was waived by acquiescence. Holding of office w. e. f. 21-10-1975 to 1-2-1979 is very strong reason to hold so.
23. In view of the aforesaid observations, the writ petition is accepted with costs and it is held that the impugned order dated 1-2-1979 is male fide and without lawful authority and as such quashed. It is also directed that the petitioner shall hold the post of Director Information as he was holding the same prior to issuance of impugned order and shall be entitled to all privileges and emoluments including the period from 1-2-1979 to the date of this order.