GHULAM MUST AFA MUGHAL, J. -- The captioned appeal by leave of the Court arises out of the judgment dated 13.4.2018 passed by the Azad Jammu & Kashmir Service Tribunal in Service Appeal No. 949 of 2015.
2. The precise facts forming the background of the captioned appeal are that the appellant, herein, challenged the legality , validity and propriety of Notification No. S&GAD/A-10(39)2015(Gazetted-1), dated 18.8.2015 by way of appeal before the Azad Jammu & Kashmir Service Tribunal on 12.11.2015. It was claimed that he is a permanent employee of the Planning and Development (P&D) Department of the Government of the Azad Jammu & Kashmir and at present serving as Assistant Chief (Technical and Engineering) B-18 in the functional unit of "Engineering" and Syed Ibrar Haider Gerdezi, the private respondent, herein, is also an employee of P&D Department and serving as Deputy Director (B-18) in "Land Use Planning" functional unit. It was alleged that a post of Director (Technical) (B-19) in the functional unit of "Engineering" fell vacant. The competent Authority in violation of the rules vide Notification dated 27.3.2015 promoted the private respondent, herein, as Director (Technical) (B-19) on officiating basis. The order dated 27.3.2015 was challenged by filing an appeal on 18.4.2015, however , during the pendency of said appeal, the private respondent, herein, was promoted on regular basis vide Notification dated 18.8.2015, therefore, the appellant filed an application on 31.10.2015 for withdrawal of appeal with the permission to file the fresh appeal and the same was allowed to be withdrawn by the learned Service Tribunal vide order dated 31.10.2015. It was alleged that the appellant is a suitable and eligible candidate for promotion against the vacant post of. Director (Technical) (B-19), but the Selection Board without recording any reason ignored the appellant and recommended the private respondent, herein, for promotion against the disputed post. The competent Authority while accepting the recommendations of the Selection Board has accorded approval for promotion of private respondent, herein, vide Notification dated 18.8.2015, It was claimed that the appellant is in possession of the higher qualification as well as length of service and experience vis-a-vis to private respondent, herein. The concern Selection Board in an arbitrary and fanciful manner without determining the comparative merit of the parties, has recommended the private respondent for promotion against the disputed post of Director (Technical) (B-19). It was further alleged that the competent authority without considering the merit of the candidates, in a slipshod manner has agreed with the findings and recommendations of the Selection Board. No reason has been listed either by the Selection Board or the competent Author ity for giving an edge to the private respondent over the appellant. It was claimed that the recommendations by the Selection Board were not made honestly , justly , transparently and judiciously , which clearly offend the rules of merit, thus the same can be termed as mala fide, arbitrary based on malice as well as ulterior motive. It was alleged that the private respondent belongs to a different functional unit and has a separate line of promotion whereas the post fell vacant in the functional unit of "Engineering" in which the appellant was serving, hence, the Selection Board and the competent Authority has misinterpreted the rules and the findings recorded by the Service Tribunal are also not in line with the facts, record and rules on the subject. The appeal was contested by the responden ts by filing separate written statements, whereby the averments of the appeal were refuted. The appellant, herein, also filed the replication. After hearing the parties, the learned Service Tribunal through the impugned judgment dated 13.4.2018 has dismissed the appeal.
3. Mr. Abdul Rashid Abbasi, the learned Advocate appearing for the appellant while reiterating the grounds taken in the memo. of appeal has argued with vehemence that the appellant, herein, has been treated discriminately throughout his service carrier and always a different yardstick has been adopted in his case by the concerned Authorities. The learned Advocate further argued that the name of the appellant was excluded from the seniority list, whereas, he was in possession of higher education and more length of service vis-a-vis to private respondent, but the Selection Board in an arbitrary and injudicious manner has not considered the case of the appellant and without assigning any reason with regard to the merit of the parties opined that the private respondent deserved to be promoted. The learned Advocate argued that the recommendations of the Selection Board and subsequently the act of approval by the competent Authority and dismissal of the appeal by the learned Service Tribunal are illegal, erroneous, arbitrary , perverse and based on non-application of judicial mind . The learned Advocate argued that the Service Tribunal and the competent Authority were under obligation to judge the merit of the candidates for promotion against the selection post on the basis of an objective criteria and in a judicious manner and not arbitrarily , unjustly and in an unfair manner . The learned Advocate added that the dismissal of appeal of the learned Service Tribunal and the observation made by it that no appeal is competent against the determination of fitness are against law, illegal and erroneous. The learned Advocate argued that in the Azad Jammu & Kashmir , the Service Tribunals Act, 1975 was amended vide Act of 1993 (1.3.1993), whereby the proviso to Section 4 which had imposed an embargo on filing of appeal against the determination of fitness by the Selection Board/competent Authority , was deleted, hence, the determination of fitness by the Selection Board is now open to be challenged on any ground whatever . The learned Advocate argued that the Selection Board did not follow any subjective criterion for determination of the merits of the candidates. The learned Advocate argued that private respondent, herein, belongs to a different functional unit i.e. "Land Use Planning", whereas the post in question fell vacant in the functional unit "Engineering" in which the appellant, herein, was serving. He argued that a post of grade B-19 is available in the functional unit of the private respondent, herein, hence, he is liable to be promoted against that post and rules have erroneously been interpreted by the Selection Board, competent Authority as well as the Service Tribunal. In support of his submission, the learned Advocate has placed reliance on the following cases:---
(1) Federation of Pakistan through Secretary , Establishment Division and others v. Dr. Muhammad Arif and others (2017 PLC (CS) 1304 );
(2) Secretary Revenue Division, CBR/Federal Board of Revenue, Islamabad v. Gul Muhammad and others (2011 SCMR 295 );
(3) Mrs. Iram Adnan and others v . Federation of Pakistan and others ( 2012 PLC (CS) 1355 ); and
(4) Liaqat Ali Chughtai v . Federation of Pakistan through Secretary Railways and 6 others ( PLD 2013 Lahore 413 ).
4. Raja Muhammad Hanif Khan, the learned Advocate appearing for the respondents, on the other hand, has argued that it is not correct interpretation of the rules that private respondent cannot be considered for promotion against the post of Director (Technical) (B-19), because in the rules for promotion the words "functional units" have been mentioned by the rules making authority , which covers all the units including the "land use planning". The learned Advocate further argued that it is well-settled principle of law that the fitness determined by the Selection Board is immuned from challenge before the Service Tribunal and the Service Tribunal has no jurisdiction to substitute the findings of the Selection Board. The learned Advocate argued that in the present case, the Selection Board has properly considered the service record of the contesting parties and its recommendations are based on proper appreciation of the same and has rightly been endorsed by the competent Authority . The learned Advocate further argued that on filing of writ petition by the appellant, herein, before the High Court it was ordered by the Court that all the eligible candidates may be considered for promotion against the disputed post, therefore, the argument that none else other than functional unit "Engineering" raised by the appellant is no more available to him. The learned Advocate argued that the Selection Board is not supposed to write a detailed judgment rather it has to make an assessment on the basis of the record, ACRs etc. of the contesting parties. The learned. Advocate in support of his submissions has placed reliance on the following cases:---
(1) Sarwar Hussain Shah v. Azad Government of the State of Jammu & Kashmir through Chief Secretary of Azad Jammu & Kashmir Government, Muzaffarabad and 3 others ( 1997 PLC (CS) 302 );
(2) Sh. Muhammad Yaqoob v. Chairman, Azad Jammu & Kashmir Council through Secretary , AJ&K Council and 3 others ( 2001 PLC (CS) 452 );
(3) Syed Rasheed Hussain Shah v . Azad Govt. and 6 others (2014 SCR 883);
(4) Muhammad Anis and others v . Abdul Haseeb and others ( PLD 1994 SC 539 ); and
(5) Dr . Mir Alam Jan v . Dr. Muhammad Shahzad and others ( 2008 SCMR 960 ).
5. We have heard the learned Advocates representing the parties and have gone through the record of the case. A perusal of , departmental rules reveals that vide amendment dated 13.5.2017 introduced in the Planning and Development Department (Land Use Planning Section) Services Rules, 1997, a post of Director (B-19) was created. The post has to be filled in by promotion on the basis of selection on merit from amongst the officers serving in the unit of "Land Use Planning" in B-18 with 12 years' service in (B-17) and above. Admittedly , the "Land Use Planning" is one of the functional units of P&D Department. The post in question i.e. Director (Technical) (B- 19) is a promotion post, which has to be filled in on the basis of selection on merit from amongst the Assistant Chief (BPS-18) and Deputy Director (BPS-18) working in the functional units of P&D Department having qualification as per column 6 alongwith service experience of 5 years in (BPS-17) and above. The disputed post can also be filled in by transfer of a civil servant already serving in (BPS-19) in any Government Department. One of the arguments of the learned Advocate for the appellant, herein, is that as a separate line of prom otion is provided on the post of Director (BPS-19) in the unit of "Land Use Planning" vide rules/Notification dated 13.5.2013, therefore any person serving in "Land Use Planning" functional unit cannot be promoted against the functional unit of "Engineering". It is further argued that the phrase "functional units of P&D Department" has not properly been appreciated by the Selection Board/Service Tribunal in the impugned judgment. In our view, this was an important question which was to be considered firstly by the Selection Board/Authority and subsequently by the learned Service Tribunal. The learned Service Tribunal has dismissed the appeal mainly on the ground that the fitness determined by the Selection Board cannot be questioned before the Service Tribunal and the Servic e Tribunal cannot substitute the findings of the Selection Board by setting aside, amending or adding anything. It may be stated here that the provisions relating to filing of appeal before the Service Tribunal were changed in Azad Jammu & Kashmir in the year 1997 in pursuance of the judgment of the Court and the relevant proviso to Section 4 of Service Tribunals Act, 1975 which imposed an embargo upon filing of appeals before the Service Tribunal against the fitness determined by the Selection Board for holding a particular post was deleted and now determination of fitness can be challenged and the Service Tribunal is bound to take into consideration as to whether the Selection Board has properly appreciated the ACRs, service record, qualification and other necessary aspects required for promotion in the higher grade. Even otherwise we are of the opinion that the question of eligibil ity is a different from question of fitness and where the eligibility is involved, as in the case in hand, the Service Tribunal has the jurisdiction to go into the recommendations made by the Selection Board or the decision of the competent Authority . Even in Muhammad Anis' case reported as PLD 1994 Supreme Court 539 referred to by Raja Muhammad Hanif Khan, the learned counsel for respondents, the same view was taken by the apex Court of Pakistan. At page 551 of the report, it was observed as under:-- "We are also of the view that the question of eligibility is different from the question of fitness. indeed, from the definitions of the words "eligible" and "fit" given in the above dictionaries, it appears that the meanings of above two words are interchangeable and some time they carry the same meanings but at the same time they have different meanings. Even in the above Legal Thesaurus the word "eligible" has been defined as "fit for appointment, fit for election, fit for selection, fit to be chosen, legally qualified and suitable". Whereas Black's Law Dictionary defines the word "eligible" inter alia as qualified to be elected and legally qualified to serve. It may again be pointed out that the Stroud's Judicial Dictionary has highlighted that the words "eligible" carried two different meanings namely legally qualified or fit to be chosen. The question whether a person is legally qualified, for appointment or promotion to a particular post and grade is relatab le to the factum, whether he possesses the requisite qualification for consideration, whereas the question of fitness pertains to the competency of the person concerned to be decided by the competent authority . For exampl e, under Article 193(2) of the Constitution, the qualifications for being considered for appointment as a High Court Judge have been given. It does not mean that the persons who possess the said qualification are fit for appointment as Judges of the High Courts. The question of fitness of their being appointed is to be determined by the functionaries mentioned therein. In other words a person may be eligible for consideration for a particular post, but may not be fit to be appointed.
We may point out that the question of eligibility and fitness have been treated differently by the, Law-Makes in the Civil Servants Act, 1973 and in the Act. In Section 9 of the former Act, as pointed out hereinabove, a right has been conferred on a civil servant to be considered for promotion if he is eligible on account of the fact that he possess prescribed minimum qualification but he has no vested right to be promoted. In contrast to above Section 9 of the above Act, the Law Makers in proviso (b) to sub-section (1) of Section 4 of the Act have not used the word "eligible" but have employed the word "fitness or otherwise to be appointed or to hold a particular post or to be promoted to a higher post or cadre." In other words, the question of eligibility , which is a term of service by virtue of above sub- section (1) of Section 9 of the Civil Servants Act, 1973, has not been excluded from the purview of the jurisdiction of the Tribunal. but the question, whether a person having requisite eligibility has been rightly selected or not selected on account of fitness or otherwise for appointment to particular post or to be promoted to a higher post or grade, has been excluded."
In the present case the Selection Board while making the recommendations observed as under:--- "Item #2 Promotion to the post of Director Technical (BS-19)
The Secretary Planning & Development Department apprised the Board that one (1) post of Director Technical (BS- 19) is available for promotion in the department due to shifting of the post of Director Technical (BS-19) from development scheme to normal budget of P&DD. Accordingly , a panel of following two officers was submitted before the Board for consideration: S. #Name of Of ficer Current Posting/Grade
1. Syed Ibrar Haider Gardezi Deputy Dir . Land Use Planning (B-18)/of ficiating Director Technical.
2. Engineer Altaf Ahmed Assistant Chief (B-18). Decision: The Board examined the service particu lar, length of service, ACRs grading seniority and rules of the post and recommended Syed Ibrar Haider Gardezi, Deputy Director Land Use Planning (B-18)/of ficiating Director Technical suitable for promotion as Director Technical (BS-19) on regular basis."
A perusal of the above would show that the Selection Board has not adopted an objective criteria for giving an edge to the respondent, herein, over the appellant, despite the fact that appellant is in possession of higher qualification as well as length of service vis-a-vis to respondent. It may also be noted that the proper interpretation of relevant rules as has been argued by Mr. Abdul Rashid Abbasi the learned Advocate for the appellant, has also not been made by the Selection Board. We are of the opinion that the Selection Boards and the Selection Committees constituted for the purpose of promotion to the higher grade are the substitute of Public Service Commission. Their functioning should be judicious and recommendations should be based on reasoning and proper appreciation of the service record with clear cut findings regarding the fitness and eligibility of the contesting civil servants. In the case reported as Shaikh Zayed Hospital and Post-Graduate Medical Institutes through Chairman and Dean and another v. Dr. Muhammad Saeed and another (2010 PLC (C.S.) 967), a Division Bench of Lahore High Court has opined that the selection on merit for the purpose of further promotion must be based on an objective criteria. The relevant paragraphs of the report are reproduced herein under:-- "47. Public institution cannot flourish and good governance cannot take root in this country unless public functionaries uphold the rule of law at all times and act strictly in accordance with law. To ensure that public functionaries act in accordance with law, fundamental function that needs to be meticulously regulated is their "exercise of discretion". Discretion of the public functionaries must strictly be within the framework of the law. In the absence of legislation, it must stand the test of fairness, procedural propriety , reasonableness, logic, transparency and good governance."
48. .........................................
"49. Structuring the exercise of discretion means that the decision arrived at by the public functionary and the competent authority is based on objective criteria. As the present case pertains to selection and appointment of the most "eminent person of scientific and medical repute" for the post, the requirement of an objective criteria for the exercise of discretion becomes fundamental. The objective criteria now-a-days is based on objectively quantifiable evaluation basis which is publically known and is rules based. Such an objective criteria has no margin for personal preferences, likes or dislikes and can easily guard against the curse of nepotism and jobbery . The final order of the appointing authority must speak for itself, clearly giving out the reasons why one candidate has been preferred over the others. Selection cannot be done behind closed doors based on discrete subjectively and without comparative assessment of the candidates available in the talent pool.
50. The importance of a fair and intelligent appointment process and structu red discretion becomes doubly important when the appointment is of a Chief Executive of a medical institute which has a direct interface with the people and deals with their lives and welfare. The discretion exercised by the competent authority for selection of a Chairman and Dean of a medical institute is a sacred trust and the said trust has to be responsibly and diligently discharged."
In the case reported as Federation of Pakistan through Secretary , Establishm ent Division and others v Dr. Muhammad Arif and others (2017 PLC (CS.) 1304 ), the apex Court of Pakistan also approved the view taken in the report (supra) and in paragraph 15 of the report it was held as under:--- "15. The allocation of marks for evaluation by CSB was once again declared illegal and un-constitutional by the Islamabad High Court, in the case of Mrs. Irani Adnan (2012 PLC (CS) 1355 ), whereby the Court directed the Establishment Division to restructure the provision of awarding 15 marks by CSB. In deciding so, the learned Judge relied on the case of Secretary Revenue Division v. Gul Muhammad (2011 SCMR 295), and upon an earlier judgment of this Court in C.Ps. No. 836 and 837 of 2016, where a judgment of the Federal Service Tribunal, directing the Establishment Division to bring more objectivity in the criteria for excellence and comparative merit, by defining it further , so that more specific, detailed and, well thought out reasons for denying promotion to an officer, who is otherwise eligible, could be given, was upheld by this Court with the following observations: We are of the opinion that decision with regard to promotion of the Officer cannot be left on the discretion of Members of the Board. There must be some criteria to judge the performance of a candidate because promotion. was denied to the officer on the ground that the does not fulfill the criteria. When there is no criteria, then how a person can be denied promotion, therefore, the Service Tribunal has rightly observed that the Board must bring more objectivity in the criteria."
6. As stated above the rules regulating the promotion of the disputed post of Director (Technical) B-18 have not properly been considered by the learned Service Tribunal. Similarly , the recommendations made by the Selection Board-do not reflect any reason as to why the private respondent has been given an edge over the appellant for promotion to the disputed post. We are, therefore, constrained to set aside the recommendations of the Selection Board as well as the impugned judgment of the Service Tribunal while accepting the appeal. Ordered accordingly .
The Selection Board shall reconsider the case of the parties in the light of the observations recorded hereinabove.