' JUSTICE (R.) RUSTAM ALI MALIK (CHAIRMAN).---According to the contents of memorandum of appeal, the case of the appellant in brief is that he being a Matriculate was appointed as a process-server in the Civil Courts, Narowal and he had joined service on 14-9-1991. In the light of a report dated 1-3-2002 submitted by the Clerk of Court, the process of promotion to the posts of Naib Nazirs was initiated by the learned Senior Civil Judge, Narowal. A number of meetings of the Departmental Promotion Committee were held and in the meeting held on 28-3-2002 it was decided that a written test/interview shall be conducted for determining the fitness of process- servers for their promotion as Naib Nazirs. A test was accordingly conducted and on the basis, of which a merit list was prepared by the Departmental Promotion Committee and according to which respondents Nos.3 and 4 who were also serving as process-servers like the appellant were recommended for promotion against the posts of Naib Nazirs on 28-5-2001. Consequent upon the recommendations of D.P.C., respondent No,2 promoted respondents Nos.3 and 4 as Naib Nazirs vide his order, dated 8-9-2002. The appellant feeling aggrieved of the promotion order dated 8-4- 2002 preferred a departmental appeal before respondent No,1 on 9-5-2002 but as the same was not decided within the statutory period of 90 days, he filed Service Appeal No,2092 of 2002 before this Tribunal and which was disposed of by the then learned Chairman of this Tribunal vide his order, dated 9-12-2002 with the direction to respondent No,2 to decide the said departmental appeal on merits within a period of 60 days after the receipt of the order of the Tribunal.
Respondent No,1 rejected the departmental appeal of the appellant vide his order, dated 16-1-2003 and the appellant again filed an appeal before this Tribunal (Service Appeal No,464 of 2003) before this Tribunal, but the same was dismissed vide order, dated 23-6-2003. Feeling aggrieved, the appellant filed C.P.L.A. No,2243/L of 2003 before the Honourable Supreme Court of Pakistan which came up for hearing on 15-2-2006. The Honourable Supreme Court of Pakistan converted the same into appeal and set aside the orders passed by respondents Nos.1 and 2 and also the judgment-passed by this Tribunal and directed that the departmental appeal of the petitioner appellant shall be treated as pending before the learned District Judge, Narowal and he will decide the same afresh in accordance with law and on merits within a period of fifteen days, after affording proper opportunity of hearing to all concerned. Later, respondent No,1 rejected the departmental appeal of the appellant vide his order, dated 11-3-2006. Aggrieved of the said order, the appellant has filed the instant appeal before this Tribunal.
2. The learned counsel for the appellant has argued that the order, dated 11-3-2006 passed by respondent No,1 is unlawful as the same is in conflict with the observations of the Honourable Supreme Court of Pakistan made in the order, dated 15-2-2006 in C.P.L.A. No,2243/L of 2003; that according to the provision of clause (b) of subsection (2) of section 8 of the Punjab Civil Servants Act, 1974, the promotion to the post of Naib Nazir was to be made on the basis of seniority-cum- fitness only and the appellant is admittedly senior in service to respondents Nos.3 and 4, whereas the fitness can be determined with the help of service record. But to the contrary a method of test was adopted by the Departmental Promotion Committee to determine the fitness of officials, instead of adverting to the service record. He has contended that the Honourable Supreme Court of Pakistan had observed in the order passed in C.P.L.A. No,2243/L of 2003 as under:-- "It appears that the order has not been passed with diligent application of mind as the petitioner appears to be well-conversant with urdu language and has got reasonable skill in writing Urdu which makes him capable to perform his routine duties."
' However, respondent No,1 did not pay any heed to the aforesaid observations of the Honourable Supreme Court of Pakistan and observed in his order dated 11-3-2006 as under:-- "The papers of all candidates are available on the record. The appellant could get only 4-1/2 out of 20 marks i,e, 22.5%. The Selection Committee rightly decided to hold the test to determine the ability of the incumbent in BS-1 and to determine if they were entitled to promotion to the post of Naib Nazir (BS-5) i,e, two steps higher, which requires more responsibility than the post of Bailiff to which appellant and other process-servers are ordinarily entitled to be promoted."
3. The learned counsel for the appellant has contended that respondent No,1 was bound to act in the light of the observations of the Honourable Supreme Court of Pakistan but he had failed to do so. He has argued that process-servers were not amenable to any written test to be conducted by the Departmental Promotion Committee and resultantly conducting of test and preparing of merit list on the basis of the said test for making recommendations and issuing promotion orders on its basis is not sustainable under the law. He has contended that according to law, the case of the appellant for the purpose of promotion from the post of process-server to the post of Naib Nazir was to be determined on the basis of seniority-cum-fitness whereas in this case the seniority position of the appellant was totally ignored by the D.P.C. As well as by respondent No,2. He has pointed out that respondent No,3 stood at serial No,23 while the respondent No,4 was at serial No,25 of the seniority list whereas the appellant stood at No,4 and as such was much senior to them. He has asserted that the entire process of promotion whereby respondents Nos.3 and 4 were promoted in preference to the appellant was completely destitute of legal force. He has contended that while promoting respondents Nos.3 and 4 their higher qualification of B.A. And F.A. Was also given weightage as compared to the appellant (who is a Matriculate) where as the higher qualification of a junior official cannot relegate an eligible and senior official to a lower position and cannot prevent him from being promoted on his turn on the basis of seniority-cum-fitness. He has asserted that the orders passed by respondents Nos.1 and 2 are liable to be set aside and the appellant is entitled to be considered for promotion as Naib Nazir (BS-5) for the post of process- server (BS-1) on the basis of principle of seniority-cumfitness, with all back-benefits, with effect from 16-1-2003 i,e, the date on which respondents Nos.3 and 4 had been promoted. In support of his contentions, the learned counsel for the appellant has placed reliance on (1) 2002 SCMR 1368 ,
(2) 2000 SCMR 1720, (3) 2006 SCMR 480, (4) 1998 SCMR 208, (5) 1983 PLC (C.S.) 652, (6) 1999 SCMR 1605, (7) 2000 PLC (C.S.) 563 and (8) 1995 SCMR 1690.
4. On the other hand the respondents have taken the plea that the Departmental Promotion Committee was competent to determine the fitness or otherwise of the process-servers to be promoted as Naib Nazirs and it had found respondents Nos.3 and 4 fit for promotion and this Tribunal could not interfere in the matter so as to substitute its own finding about the fitness of a person for promotion to a certain post and which can be determined by the Departmental Promotion Committee only. All the process-servers who were eligible (being Matriculate) were given opportunity to sit in the test and interview and only 13 out of 28 process-servers appeared in the written test/interview. The appellant secured only 4.5 marks out of 20, whereas respondents Nos.3 and 4 obtained 14.5 and 15 marks respectively and being on the top of the merit list, they were rightly found fit for promotion and consequently they were promoted as Naib Nazirs.
5. In his written comments, respondent No,1 has submitted that two posts of Naib Nazirs had fallen vacant in the office of Senior Civil Judge, Narowal. As per procedure, the said posts were to be filled by promotion from amongst the Bailiffs (BS-2) and possessing the academic qualification of matriculation. At that time only one Bailiff was Matriculate but his service record was not satisfactory. The Selection Committee in its meeting held on 28-2-2002 decided to fill up these vacancies from the process-servers (BS-1) possessing the qualification of Matriculation, after conducting the test. As many as 11 process-servers appeared in the test, out of which respondents Nos.3 and 4 secured the highest marks whereas the appellant obtained 4-1/2 marks out of 20 marks. The Selection Committee promoted respondents Nos.3 and 4 as Naib Nazirs and hence the departmental appeal filed by the appellant had been rightly dismissed.
6. The operative part of the impugned order passed by respondent No,1 reads as below:-- "In view of the double promotion and distinct nature of duties of two posts the conditions of test could have lawfully been imposed under Rule 6, Chapter 18-A of the High Court Rules and Orders Volume-I, the SOR relied upon by the appellant would not override these provisions of the High Court Rules and Order as the same were not amended and double promotion was being given. The papers of all candidates are available on the record. The appellant could get only 4-1/2 out of 20 marks i,e, 22.5%. The Selection Committee rightly decided to hold the test to determine the ability of the incumbents in BS-1 and to determine if they were entitled to promotion to the post of Naib Nazir (BS-5) i,e, two steps higher which requires more responsibility than the post of Bailiff, to which appellant and other process-servers are ordinarily entitled to be promoted. The impugned order does not suffer from any illegality or infirmity. The appeal in hand is without merits and the same is hereby dismissed."
7. As regards the contention of the learned counsel for the appellant that respondent No,1 had failed to act in accordance with the observations of the Honourable Supreme Court of Pakistan as contained in the judgment delivered in C.P.L.A. No,2243/L of 2003, which was decided on 15-2-2006 (which was reported as PLJ 2006 SC 62 (appellate jurisdiction), I do not think that it has any basis.
The Honourable Supreme Court of Pakistan had directed the learned District and Sessions Judge, Narowal/Appellate Authority to decide the departmental appeal in accordance with law and on merits. Acting in accordance with the said direction, the learned District and Sessions Judge, Narowal/respondent No,1 has passed a detailed order disposing of the departmental appeal filed by the appellant. He has given sound reasons for his decision. Merely because the Departmental Promotion Committee had directed the candidates to go through a written test besides the interview does not mean that it had adopted a wrong procedure. The purpose of holding a test was merely to determine the fitness of the candidates/process-servers for promotion to the posts of Naib Nazirs. It has been explained that it was in fact a case of double promotion and being extra cautious, the Departmental Promotion Committee had directed the candidates to go through a written test as well as interview for the purpose of determining their fitness for promotion. In fact the appellant had been considered for the said promotion but he was unable to prove his fitness for the purpose as he was able to secure only 4-1/2 marks as against 14-1/2 and 15 marks secured by respondents Nos.3 and 4 respectively.
8. I have carefully considered the above arguments and have also gone through the record.
9. Most of the case-law relied upon by the learned counsel for the appellant (mentioned at the end of paragraph No,3 of the judgment) is distinguishable for the reason that the facts of the instant case are clearly different and as it is a case in which the Department Promotion D Committee had determined the fitness of the candidates through a written test/interview instead of merely going through their service record. The authority reported as 2002 SCMR 1368 (Supreme Court of Pakistan) in fact negates the view point of the appellant as opportunity to all the eligible candidates was allowed to compete. The authority 2000 SCMR 170 (Supreme Court of Pakistan) also does not help the appellant. The authority reported as 2006 SCMR 480 (Supreme Court of Pakistan) is on an altogether different point and the Honourable Supreme Court of Pakistan, upholding the decision of Punjab Service Tribunal, had refused to grant leave to appeal in the said case. I wonder how the learned counsel for the appellant has placed reliance on the said authority which is based on completely different facts and wherein leave to appeal had been declined. The authorities reported as 1998 SCMR 208 (Supreme Court of Pakistan) and 1983 PLC (C.S.) 652 (Lahore High Court) are also distinguishable, being based on different facts. The authority 1999 SCMR 1605 (Supreme Court of Pakistan) is however, quite relevant. It was observed by their Lordships in the authority aforesaid as under:-- "Pertaining to a case involving an appointment or promotion there are two essential elements namely, eligibility and fitness. The concept of eligibility implies a qualification to be appointed or promoted whereas that of fitness encompasses a person's competence to be chosen or selected for appointment or promotion. The tests for eligibility are objective and open to scrutiny by a judicial forum, in the instant case by a Tribunal of exclusive jurisdiction namely, the Service Tribunal.
Besides, if eligible to be promoted, it is the right of a person, in whom the eligibility resides, to be considered for such promotion.
' On the other hand, fitness of a person to be appointed or promoted to a particular post or grade involves a degree of subjective evaluation on the basis of objective criteria and, as a rule, an opinion so formed, is not open to judicial scrutiny.
' However, even in the matters involving fitness to be appointed or promoted to a particular post or grade there has to be necessary material on the basis of which an opinion, one way or the other, is to be formed. If, therefore, either all the necessary material is not put up before the Authority deliberating upon the matter of appointment or promotion or obviously misleading material is put up or manifest acts of commission or omission, as regards vital data, are involved the subjective exercise may not qualify as such and may irretrievably be conditioned by objective factors, wanting in due process. Such aspects, probably, would be more akin to considerations of eligibility than of fitness and, all things being equal, be open for scrutiny before a legal forum. In the instant proceedings, the objective factors were the working paper etc. And the recommendation of the Selection Board. On such material, another had to determine the fitness and while such determination may be beyond judicial scrutiny, the necessary steps leading to the same i,e, the objective factors may not always be so."
10. In the instant case, I think the departmental Appellate Authority while deciding the departmental appeal has also considered the material which had been placed before the Departmental Selection Committee and which must have weighed with the Selection Committee for determining the fitness of various candidates. It was held in the case of N.-W.F.P. Through Chief Secretary and another v. Dr. Irfan Mir and 2 others 1995 SCMR 1690 (Supreme Court of Pakistan) as under:-- "The mere comparatively higher academic qualification, when relevant rule has practically fallen into disuse since long, does not give any preferential right of promotion to a civil servant over those civil servants in the same service or class although senior to them but possess less qualification.
Even in cases where promotion under the rules is required to be made strictly on the basis of seniority-cum-merits, the mere qualification is not the sole criteria for the determination of comparative merits of the contenders for promotion. The merit undoubtedly also includes experience, seniority, competence, rectitude and antecedents in service record. None of these constituents is less important than the academic qualification in the assessment of suitability or merits for promotion to higher post or grade."
11. There is no cavil with the principle of law propounded in the said authority and it is a clear legal position that the mere qualification is not the sole criteria for the determination of comparative merits of the contenders for promotion and the merit undoubtedly includes experience, seniority, competence, rectitude and antecedents in service record as well and it is also a clear position of law that no preferential right of promotion to a civil servant can be given over the civil servant in the same service or class although senior to him but possessing less qualification. However, in the instant case, it was not merely the question of higher qualification which was kept in view. In fact the candidates had been asked to appear in a written test and interview and it was the result of the written test as well which was considered at the time of determining the fitness of the candidates for further promotion. It was held in 1983 PLC (C.S.) 652 (Lahore High Court) that as the minimum qualifications for eligibility for promotion to the post of Civil Nazir are contained in High Court (Lahore) Rules and Orders and such provisions are not provided in Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, the former will prevail, not being inconsistent with the provisions of the Act.
12. The learned counsel for' the appellant also places reliance on 2000 PLC (C.S.) 563 (Federal Service Tribunal) and in which it was held that if a civil servant had the prescribed minimum qualification, he had the right to be promoted under the statute. However, in the instant case, it was not a case of normal promotion but a case of double promotion and in which the Departmental Selection Committee had decided to hold a written test and the candidates had been asked to go through the same and it was on the basis of the result of the written examination as well that the fitness of the candidates had been determined.
13. The learned District Judge while deciding the departmental appeal has given very convincing and cogent reasons for the conclusion drawn by him and hence I think that there is hardly any justification for interference by this Tribunal.
14. In view of what has been stated above, the appeal merits dismissal and the same is dismissed accordingly.