Ch. Muhammad Ibrahim Zia, J.-- This appeal by leave of the Court has arisen out of the judgment of the Subordinate Judiciary Service Tribunal dated 19.05.2016 through which the appeal filed by the appellant, herein, has been dismissed.
2. Brief facts of the case are that the appellant was appointed as Junior Clerk in the office of District Judge, Neelum, vide order dated 31.03.2006. A post of Nazar (B-14) fell vacant due to retirement of one Abdul Majid.
Against the said post respondent No.3 was promoted on the recommendations of the Selection Committee vide order dated 16.10.2014. Feeling aggrieved, the appellant challenged the promotion order dated 16.10.2014 before the the Azad Jammu and Kashmir Subordinate Judiciary Service Tribunal (hereinafter to be referred as Tribunal) on 31.10.2014 which has been dismissed through the impugned judgment, hence this appeal by leave of the Court.
3. Meer Sharafat Hussain, Advocate, the learned counsel for the appellant after narration of facts submitted that the selection committee fell in error of law and facts. The appellant is highly qualified i.e B.A LL.B whereas respondent No.3 is a simple matriculate. Even under the enforced rules for establishment of the High Court, he lacks the minimum required qualification of intermediate. According to the rules, the promotion has to be made on the basis of seniority-cum-fitness. The selection committee has only considered the seniority and not the fitness, thus, the recommendations are against law. He further argued that according to the enforced rules, the District and Sessions Judge is authority only for the post of Nazar/Reader (B-11), whereas he has not been declared as appointing authority for the post of grade B-14. In the impugned judgment the learned Member of the Tribunal has misconceived the facts and law. He has relied upon some proposed amendments in the rules which have not yet been approved or enforced, thus, the order is without lawful authority. So far as the reference of notification in relation to selection committees is concerned, it does not confer powers upon the selection committee to assume the role of appointing authority. This aspect has been totally ignored by the Tribunal which remained unattended, therefore, the impugned judgment is not maintainable.
4. Conversely, Mr. Muhammad Yaqoob Khan Mughal, Advocate, the learned counsel for respondent No.3 submitted that the promotion order of the respondent has been passed by the competent authority according to the prescribed manner. No doubt, the appellant's qualification is B.A, LL.B but mere higher qualification is no criteria for further promotion. The opinion of the selection authority cannot be questioned or substituted by any other authority. It is the prerogative of the selection authority to determine the fitness and suitability for promotion. So far as the other arguments are concerned, according to the enforced rules, although the District and Sessions Judge is authority only for the posts of Assistant and Nazar, however, the subsequent up- gradation of the post does not make the authority as incompetent. Moreover, as the learned Chief Justice has also vide notification dated 24.7.2006 constituted the selection committees for grade B-1 to 15 consisting of the District and Sessions Judge and others, thus, in the light of this notification the order has been validly passed by the learned District and Sessions Judge. Therefore, the appeal having no substance is liable to be dismissed.
5. We have considered the arguments of the learned counsel for the parties, examined the record made available. Leaving aside all other aspects of the case, admittedly, up till now the rules enforced are called the Azad Jammu and Kashmir Judicial Department (Lower Courts Establishment) Rules 1991 (hereinafter to be referred as Rules 1991) and at serial No.4 of the schedule of these rules the post of Nazar/Reader grade B-11 is mentioned and the appointing authority for these posts is District and Sessions Judge. Admittedly at the time of issuance of the impugned departmental order the post was not of grade B-11 rather it was of grade B-14 as is evident from the order dated 16.10.2014 which speaks that respondent No.3 has been promoted to grade B-14.
Both the parties have not brought on record any document to ascertain that through any amendment in column 5 of the schedule of Rules 1991 the grade B-11 has been substituted by grade B-14. Whereas in relation to the stenographer grade B-15 an amendment has been made by substituting the same with grade B-16.
6. So far as the notification of constitution of the selection committees is concerned, we have no cavil with it, but it is not always necessary that in each and every case the Chairman of the Selection Committee is the appointing authority. In some cases, the Chairman Selection Committee and the appointing authority may be different authorities. Be that as it may, however, as in this case, important aspect involved is whether without amendment in the schedule to Rules, 1991, the District and Sessions Judge itself can assume the role of appointing authority for the posts of Assistant and Nazar B-14. This aspect of the matter has not been appreciated by the learned Member of the Tribunal in its legal spirit and perspective, therefore, on this proposition we would like to have first the wisdom of the learned Tribunal.
7. In view of above, while accepting the appeal, recalling the impugned judgment, the matter is remanded to the Tribunal for re-hearing of the parties especially in the light of the hereinabove stated propositions and thereafter decision of same afresh according to law. No order as to costs.