1. ' MUSHTAK ALI KAZI (CHAIRMAN,-The appellant had initially joined Government service as a Junior Clerk in the Revenue Department, Government of Sind from 25th May, 1948 with prospect of being promoted as Mukhtiarkar. The Government maintained select list of Revenue Subordinates considered fit for appointment as Mukhtiarkars. This list was drawn up every year according to the number of vacancies that were likely to occur in the next two years. The condition precedent for the appointment was that the candidate should pass Revenue Qualifying Examination and should be otherwise suitable for appointment. From the year 1945 the Government had passed a resolution prescribing rules for the seniority of Officers on this list. The seniority inter se was to be decided according to the marks calculated on the following basis :- ' 1 marks for each complete year of service.
2. ' 1 mark for each complete year after the date of passing the Revenue Qualifying Examination. 5 marks for University degree.
3. ' 5 marks for L L. B.
4. ' 3 additional marks for M. A. Degree.
5. ' In the year 1951 a further condition was imposed that the candidate should have served for at least one year as Taluka Headmunshi. The Government had the discretion to relax this condition in deserving cases but the relaxation was to be made after consulting the Public Service Commission and only in cases, where the Officer had been unable to serve as Headmunshi for full one year due to exigencies of service and his experience and training were such that he could be considered suitable for promotion as Mukhtiarkar.
6. ' The appellant had earned 36 marks upto 1st September, 1971. He was promoted as Mukhtiarkar by notification dated 12th January, 1973 but in October 1973 he was reverted on the ground that his name could not be included in the select list of 1971 as he had not completed 12 months Headmunshi's training by 1st September 1971. The appellant was eventually promoted after inclusion of his name in the select list of 1974. The appellant however represented that for the purpose of fixation of seniority his name should be included in the select list of 1971 because he had earned 36 marks by that time and he could not serve as Headmunshi but he had the requisite experience as he had service as Mukhtiarkar for 10 months and persons with less experience had been granted exemptions. The appellant had cited the case of Mr. Muhammad Nooh Memon whose case was identical to his case and who had been granted exemption. The representation and the appeal against the order of Board of Revenue was rejected by the Chief Secretary on the ground that his case was not identical with that of Mr. Muhammad Nooh Memon. The appellant has accordingly preferred this appeal under section 4 of the Sind Service Tribunals Act, 1973.
7. ' A preliminary objection has been raised by the Assistant Advocate-General that an order affecting right of promotion of a civil servant is not appealable to the Tribunal under proviso (b) to section 4 of the Sind Service Tribunals Act, 1973. The proviso reads as under:- "No appeal shall lie to a Tribunal against an order or a 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 or grade".
8. The question before us is :not whether the appellant is a fit person or not, for promotion as Mukhtiarkar. The appellant had been found fit and promoted on temporary basis even before inclusion of his name in the select list. He was eventually promoted on regular basis after his name was included in the select list of 1974. The appellant continues to remain as Mukhtiarkar till this date and there is no proposal for his reversion as such. The only question that is being agitated is regarding the appellant's position and seniority in the cadre of Mukhtiarkars. This seniority is determined by the date of inclusion of the name of the candidate in the select list. The real question in dispute is thus regarding the seniority inter se and not fitness for promotion. This seniority has to be determined according to the norms and principles laid down from time to time.
9. If a candidate earns the requisite number of marks by a certain date he becomes entitled to the inclusion of his name in the select list. The seniority inter se is thus determined according to the number of marks obtained if the Officer has otherwise qualified for inclusion of his name in the select list.
10. ' Candidates join the Revenue Department after graduation as Junior Clerks with intention to pass the necessary examinations and qualify for appointment as Mukhtiarkars. The appointment as Mukhtiarkar depended on the earning of requisite number of marks according to the fixed principles. It cannot therefore be said that the candidates had joined as mere Clerks and they had no vested right of appointment as Mukhtiarkars. In fact their initial appointment as Clerks was considered as a training period for eventually appointing them as Mukhtiarkars. The violation of principle laid down by appointment of these candidatdes as Mukhtiarkhars in arbitrary manner would be a good, ground for preferring an appeal before this Tribunal as exercise of this discretion bad to be done in a judicious manner and if any candidate had been passed over, the wrong exercise of discretion would certainly affect the terms and conditions of his service. The Tribunal has accordingly jurisdiction to review such cases and determine whether the omission or inclusion of the names in the select list have been according to the said principle or not.
11. ' The next question that arises in this appeal is whether the Board of Revenue should have granted exemption to the appellant since he had not completed 12 months period as Headmunshi. It may be mentioned in this regard that according to the rule prescribed by the Government. By Resolution Revenue Department No, 4251/55 dated 11th September, 1946, taluka Headmunshi training for one year was considered necessary. The time during which the officer had acted as Mukhtiarkar could also be counted towards this period but the Government could relax this condition in deserving cases subject to the following conditions :-
(1) That the relaxation should be made after consulting the Public Service Commission.
(2) The relaxation had to be made only in cases where the Officer had been unable to serve as Headmunshi for full one year due to exigencies of service and his experience and training were such that he could be considered suitable for promotion as Mukhtiarkar.
12. ' It has been argued that in the year 1971 the appellant had served as a Mukhtiarkar for 10 months whereas Mr. Muhammad Nooh Memon bad served only for 3 months but Mr. Muhammad Nooh Memon was granted exemption and the requirement was not relaxed in case of the appellant.
13. However, in this respect the appellant has not been able to furnish sufficient proof of having 10 months experience as Mukhtiarkar by the year 1971 nor has the appellant been able to show how the case of Mr. Muhammad Nooh Memon was identical to his case. Likewise the written statement filed by the Department is also vague and it has not been specifically stated how much time the appellant had put in to gain experience as Mukhtiarkar. The departmental appellate order rejecting his representation is also not a speaking order and there are no indications how the case of Mr. Muhammad Nooh Memon differred from that of the appellant. The Tribunal cannot, therefore, interfere regarding the question of exercise of discretion by the Department in respect of relaxation of the rule as to 12 months experience as Headmunshi, but since the discretion is to be exercised in a reasonable and judicious manner, the question could be reconsidered by the department on merits.
14. ' The appeal is however dismissed in terms of the above order. Parties will bear their own costs.