' SHAHID ANWAR BAJWA, J.--- The appellant in Service Appeal No,25 of 2011 was appointed as Civil Judge in 1971 and was thereafter selected by the Sindh Public Service Commission and in the merit list he was placed at Sr. No, 3 amongst 48 persons selected. In 1976 appellant was promoted as Senior Civil Judge. He was ultimately promoted as Sessions Judge vide order dated 14-1-1986. On 1- 12-1986 he was granted move over from BS-18 to BS-19 and' with effect from 1-12-1990 he was granted move over from BS-19 to BS-20. Appellant was at Sr. No,3 of seniority list when vide 'notification dated July 27, 2001, 17 District and Sessions Judges in BS-20 were granted selection grade, BS-21. A few of such Sessions Judges were senior than the appellant while most of them were juniors than the appellant. The appellant filed a review petition/representation on 15-8-2001 and such review petition was rejected and order was communicated to the appellant on 14-11-2001.
Consequently this appeal was filed and it was prayed that the appellant be ordered to be given Selection Grade B-21 with effect from the date his juniors were given selection grade vide impugned notification dated July 27, 2001. Learned counsel for the appellant referred to Rule 6 of the Sindh Judicial Service Rules, 1994. The said rule is in the following words:- "6. Selection Grade.--- (1) Not less than fifteen percent of the posts of District and Sessions Judges shall be placed in Selection Grade.
(2) Appointment to the Selection Grade shall be made by the High Court, on the recommendation of the Provincial Selection Board, from amongst the senior most District and Sessions Judges."
2. Appellant who appeared in person submitted that the appellant had a clear record, has worked in four places as Sessions Judge, Member N1RC, Presiding Officer of Labour Court, Banking Court and Anti-Corruption Court and throughout his career there is no adverse remark against him, certainly none was communicated. He submitted that the Selection Board did not give him due consideration. He relied upon Abdul Hameed Anjum and others v. Federation of Pakistan and others PLD 2010 SC 857.
3. Appellant next submitted that Selection Grade is not a promotion. He referred to section 9 of the Sindh Civil Servants Act, 1973 and submitted that the word higher grade was omitted by the Sindh Civil Servants (Amendment) Ordinance, 1984 and therefore grant of selection grade is not promotion. Appellant relied upon Muhammad Siddique, Stenographer, FIA Headquarters, Islamabad and another v. Secretary, Establishment Division, Islamabad and 5 others 2001 PLC (C.S.) 341. He submitted that since grant of selection grade is not promotion the matter falls within the jurisdiction of this Tribunal. He submitted that promotion is always to a higher post and not to a higher grade. He also relied upon Mubusher-ul-Haque, S.D.O., .W.D., Muzaffarabad v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Azad Government of the State of J&K, Muzaffarabad and 2 others 1991 PLC (C.S.) 426 and Mahbub Ali Malik v.
Corporation of the City of Lahore and 3 others, PLD 1958 Lahore 370. Appellant referred to Rule 6 of Sindh Judicial Services Rules, 1994 and submitted that seniority is the only consideration. He further submitted that it was duty of the Selection Board to hear him before deciding. He relied upon M.
Awais Shahid v. Government of the Punjab 1984 PLC (C.S.) 1319 (Punjab Service Tribunal). He submitted that selection grade has been granted with retrospective effect and since promotion cannot be granted with a retrospective effect it cannot be considered as a promotion. Appellant submitted that selection grade and move over are synonymous and therefore it is not a promotion.
He further submitted that selection grade is granted when there are inadequate chances of promotion. He relied upon Muhammad Yaqoob Bhatti v. Director Labour Welfare and others 1997 PLC (C.S.) 727, Sadaqat All v. Director-General Department of Supplies (Admn. Wing), Karachi and 3 others 1993 PLC (C.S.) 406, Ahmad Din Ansari v. Secretary, Ministry of Commerce, Islamabad and 4 others, 1993 PLC (C.S.) 1433, Saad Sharif v. Major (Retd) Sikandar Hayat Shaheen, D.I.-G. And others 1992 PLC (C.S.) 1374. He submitted that seniority must have been the major factor. He relied upon Muhammad Fazal Khan v. Muhammad Muskeen and 2 others 1994 PLC (C.S.) 1207, Abdul Jabbar Khan v. Government of Sindh through Chief Secretary, Karachi and 5 others 1996 SCMR 850, Muhammad Anwar v. The Secretary, Establishment Division, Rawalpindi and 2 others PLD 1992 SC
144. Lastly appellant submitted that grant of selection grade is a major benefit and the petitioner could not have been deprived of it. He relied upon Abdul Rehman v. District and Sessions Judge, Bhakkar and another 1994 PLC (C.S.) 1544.
4. Learned counsel for appellant in Service Appeal No,45 of 2001 adopted arguments of appellant Ghulam Nauman Shaikh.
5.Learned A.A.-G. Submitted that view of the Selection Board cannot be interfered with by this Court and he submitted that selection grade is promotion and seniority was only just one of the factors and this Tribunal could not be judge of fitness.
6. Appellant Ghulam Nauman Shaikh submitted that his appeal has been dismissed on ground of maintainability without adverting to merits.
7. We have considered the submissions made by the learned counsel and have also gone through the record.
8. First contention of the learned counsel was that up-gradation is not promotion and he submitted that the word 'grade' has been deleted from section 9 of the Sindh Civil Servants Act, 1973 by amending Ordinance XIII of 1984. In order to appreciate contention of the learned counsel section 9 as stood before the amendment is reproduced as under:--- "9. Promotion.--- (1) A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a post for the time being reserved under the rules for departmental promotion in higher grade of the service or cadre to which he belongs.
(2) A post referred to in subsection (1) may either be a selection post or a non-selection post to which promotion shall be made as may be prescribed---
(a) in the case of a selection post, on the basis of selection on merit; and
(b) in the case of a non-selection post, on the basis of seniority-cumfitness."
9. Ordinance No, XIII of 1984 amended this section. First it Inserted word 'higher' and secondly it deleted words 'higher grade of'. The amended section reads as under:--- "9. Promotion.--- (1) A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a higher post for the time being reserved under the rules for departmental promotion in the service or cadre to which he belongs.
(2) A post referred to in subsection (1) may either be a 'selection post or a non-selection post to which promotion shall be made as May he prescribed---
(a) in the case of a selection post, on the basis of selection on merit; and
(b) in the case of a non-selection post, on the basis of seniority-cumfitness."
10. Contention of the learned counsel was that deletion of the words 'higher grade of means that up gradation is not promotion and therefore, the matter is within the jurisdiction of this Tribunal and jurisdiction of this Tribunal is not barred because up gradation is not promotion. Learned counsel relied upon Muhammad Siddique's case (Supra). In the reported case the matter was taken to the Supreme Court on appeal from judgment of Federal Service Tribunal. The Supreme Court observed as under:--- "6. The contentions raised by the learned counsel of the petitioners are devoid of force. No doubt the petitioners were granted Selection Grade (BPS-16) prior in point of time but they cannot claim seniority over the private respondents for the simple reason that they were not promoted from a lower to higher post. Grant of selection grade is not a promotion in strict sense of the word though it has overtones of promotion in view of the financial benefit involved. The expression selection grade is confined to revision of Basic Pay Scales and does not find mention in section 8 of the Civil Servants Act, 1973 and the Civil Servants (Seniority) Rules, 1993 under which seniority list of civil servants is required to be prepared with reference to a service, cadre or post and not grade.
Guidance is also provided by F.R. 30(16) which reads as under:- "A question was raised whether for the purpose of F.R. 30 appointment to the selection grade of a cadre involves the assumption of duties and responsibilities of greater importance than those attaching to posts in the ordinary grade of that cadre. Ordinary grade and the selection grade are two grades of one and the same post. Promotion of a person from the ordinary to the selection grade of a grade does not mean a change of posts and consequently does not involve assumption of duties and responsibilities of greater importance for the purpose F.R.
30."
11. A submission was also that promotion is to a higher post and not necessarily to a-higher grade and in this regard he relied upon Mubusher-ul-Haque's case (Supra) and to Mahbub Ali Malik's case (Supra), where a division bench of erstwhile West Pakistan, High Court held that "although the word 'promotion' is not defined anywhere, it means the taking of a further step on a ladder. It is only where an employee after having gained experience in a particular post or having otherwise better qualified himself is appointed to a post which is regarded as a higher post in that particular line that it is called promotion.
12. It may be of advantage at this stage to reproduce the provision contained in section 4 of the Sindh Service Tribunals Act, 1973:--- "4. Appeals 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 may, within thirty days of the communication of such order to him or within twelve months of the establishment of a Tribunal whichever is later, prefer an appeal to the Tribunal having jurisdiction in the matter. Provided that:---
(a) where an appeal, review or representation to a departmental authority is provided under the Sindh Civil Servants Act, 1973, or any rules, against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred; and
(b) no appeal shall lie to a Tribunal against an order or a decision of a departmental authority determining the fitness or otherwise of person, to be appointed to or hold a particular post or, to be promoted to a higher post or grade; and
(c) subject to the provisions of S.6, no appeal shall lie to a Tribunal against an order or decision of a departmental authority, made at any time before the 1st July, 1969."
13. It may be noticed that clause (b) of the proviso specifically bars jurisdiction of this Tribunal from entertaining any appeal against an order determining fitness or otherwise of a person:-
(a) to be appointed to a particular post
(b) to hold a particular post
(c) to be promoted to a higher post
(d) to be promoted to a higher grade.
It may be pointed out that the Legislature in its own wisdom though has excluded the word 'grade' from section 9 of the Civil Servants Act, but it has chosen not to confer jurisdiction on this Tribunal even in respect of matter which relate to promotion to a higher grade (in contradistinction to promotion to a higher post). Therefore contention of the learned counsel that up gradation is not promotion needs not detain us here because it is specifically provided in section 4(b) that no appeal shall lie against an order determining fitness to be promoted to a higher grade. Therefore this appeal is not maintainable and same is liable to be dismissed on this ground alone.
14. Next contention of the learned counsel was that his case was not considered by the Selection Board. In the comments submitted by the Additional Registrar it has been specifically stated that his case was considered by the Provincial Selection Board. No Counter-Affidavit has been filed. Therefore it is clear that case of the petitioner was considered by the Provincial Selection Board. Even the impugned notification in its opening part reads as under:--- "On the recommendation of the Provincial Selection Board of this Court, the competent Authority has been pleased to appoint the following District and Sessions Judges (B-20) in Selection Grade (B-21) from the date mentioned against their names, in accordance with Rule 6 of Sindh Judicial Service Rules, 1994."
15. In the impugned notification thereafter names of 17 Sessions Judges are mentioned . At page 15 of the appeal, seniority list as on 1-1-2000 has been filed with the appeal. Seniority List indicates that name of the appellant in Appeal No,25 appeared at Serial No,3 and of the appellant in Appeal No,45 appeared at Serial No,21 and the persons appearing have been placed in Selection Grade B-21 by the impugned notification. Therefore contention of the learned counsel that juniors have been placed in B-21 and the appellant has not been so placed is borne from the record.
16. Contention of the learned counsel was that only criteria prescribed by Rule 6 of the Sindh Judicial Service Rules, 1994 is seniority. We are unable to subscribe to this contention of the learned counsel. The rule has been quoted above and the rule clearly says that appointment in the selection grade is to be made by the High Court "on the recommendation of the Provincial Selection Board" from amongst the senior most District and Sessions Judges. If the only criterion was to promote the senior most for what purpose would recommendations of the Selection Board be required. Because in that situation there should not have been need of the Selection Board: one only needs to go to seniority list and pick the seniors and appoint them. Lawmaker in its wisdom has chosen to specifically provide that it will be on the basis of "recommendations" of the "Selection Board". So there has to be a Selection Board which has to select amongst District and Sessions Judges and this process of selection, a priori involves assessment and determination of fitness.
17. In view of the above and since jurisdiction of this Tribunal is barred by clause (b) of section 4 of the Sindh Service Tribunals Act, we don't think it would be appropriate to consider other contentions raised by the appellant and the learned counsel for the second appellant. Result of the above discussion is that the appeals are dismissed.