' S. ABDUL JABBAR KHAN (CHAIRMAN).--Mahmood Akhtar Ansari, ex-Naib Nazir, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the District and Sessions Judge, Bahawalpur, the Lahore High Court, Lahore through its Registrar and Muhammad Ashiq, Naib Nazir office of Senior Civil Judge, Bahawalpur, as respondents.
2. By virtue of this appeal he has prayed that the appeal be accepted and order of removal/termination from service passed by respondent No, 1 on 22-1-1984, as also of respondent No, 2 confirming the same may be set aside and appellant ordered to be reinstated in service with all back benefits.
3. Brief facts of the case are as under:- ' The appellant was appointed as Naib Nazir in the Process Serving Establishment of the Senior Civil Judge, Bahawalpur, against one of the 3 permanent posts of Naib Nazirs, vide appointment letter No, 714/COC-G(P.S) 4.1, dated 27/28-6-1981, Annex. A. The appointments were made by the Selection Committee comprising of Senior Civil Judge, Bahawalpur as its Chairman and two learned Civil Judges as Members. The Committee interviewed ten candidates and determined fitness of the appellant and two others for the posts in question.
' The appellant reported for duty on 1-7-1981, and completed his probationary period of 2 years to the entire satisfaction of his superiors without earning a single adverse remark on record or otherwise. However, on 23-1-1984, the respondent No, 1 passed an order of removal against the appellant, on the basis of representation by Muhammad Ashiq, respondent No, 3, who was not selected by the Committee of Judges during the year 1981. The appellant made a representation against the order of removal from service before the Lahore High Court, Lahore on 25-1-1984, but the same has been rejected and communicated to the appellant after 9-3-1985. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department along with Malik Azam Rasool, Standing Counsel of the Lahore High Court, Lahore, and have perused the record of this case with their assistance.
5. Learned counsel for the appellant has submitted that the appellant was qualified to hold the post in question and the Selection Committee, as indicated above, had competently selected the appellant from amongst the candidates interviewed by it. According to the learned counsel for the appellant, the determination made by the Committee, was not open to challenge under the law. A specific bar in this connection was provided in section 21 of the Punjab Civil Servants Act, 1974, which says that "no representation shall lie on the matters relating to determination of fitness of a person to hold a particular post." He has further submitted that even the learned Registrar of the Lahore High Court, had noted on file of the case that such representation was not competent under the rules but the same had been ignored by the respondent No, 2 on the basis of reasons that the same were not supportable under the law. It has been vehemently argued that the appellant has already served for four long years without any blemish on record and he could not be removed from service except by way of punishment for misconduct, inefficiency, corruption and subversion etc. According to the learned counsel for the appellant, as no such allegation has been leveled against the appellant therefore, his removal on the part of respondents Nos. 1 and 2 was unlawful.
Learned counsel for the appellant has challenged the assessment of the learned District and Sessions Judge, Bahawalpur with regard to the decision of the Selection Committee, as according to him it was the Committee only which could decide fitness of the candidates for certain posts and few marks here and there would not in any manner detract from the qualification of the said candidate.
6. On the other hand learned District Attorney has adopted the comments submitted by learned Distrid and Sessions Judge, Bahawalpur and submitted that the respondent No, 1 was justified to interfere with the order of the Selection Committee headed by Senior Civil Judge as according to the instructions of the SGA & I Department, certain criteria was laid down to fill such vacancies, but the same was not strictly adhered to by the said Selection Committee. He has defended the judgment of the learned Administration Judge of the Lahore High Court, on the ground that the case so referred by the Additional Registrar in his note was not put up before the learned Administration Judge in order to sec what was the reasoning of late Mr. Justice M.R. Kayani in the case of Muhammad Siddique, which has been referred in detail by the Additional Registrar in his note dated 28-6-1984.
7. We have given our anxious thought to the arguments advanced by the parties and find that the appellant was selected by Selection Committee headed by Ch. Muhammad Ali, Senior Civil Judge, assisted by Ch. Ahsan Ahmad, Civil Judge, 1st Class, Bahawalpur, as Member and Syed Ejaz Hussain Shah, Civil Judge, 2nd Class, Bahawalpur as Member. This decision was taken in pursuance of S&GAD Notification No, SO(Cab) III-1-11/80, dated 10-3-1980, when the Departmental Selection Committee met on 25-6-1981, Thursday, at about 12-30 p.m. For selection of candidates for appointment to the posts of Naib Nazirs. As many as ten candidates turned up for test and interview. All the candidates in attendance were asked to pen down an application, in English, for leave and have been interviewed. Out of the contestants candidates Haji Fazal Ahmad son of Haji Allah Ditta, Mahmood Akhtar Ansari son of Hafiz Manzoor Ahmad and Maqbool Alam Nasir son of Muhammad Ismail, were selected as Naib Nazirs on the probationary period of two years on the usual terms and conditions of service rules. It will be useful to mention at this stage that the appellant was inducted into service on probationary period for two years and completed his probationary period to the entire satisfaction of his superiors without earning a single adverse remark during the said period. Furthermore he served for another 1-1/2 years without any blemish till his services were terminated by the impugned order passed by the respondent No, 1 on the representation of Muhammad Ashiq, respondent No,
3. We have carefully perused the order of learned District and Sessions Judge, Bahawalpur, who has only set aside the appointment of the appellant solely on the ground that he lacked experience whereas the respondents were old members of service and could secured 20 marks in that respect. Learned District and Sessions Judge has also conceded in his judgment that when the candidates were interviewed by the Departmental Selection Committee the appellant secured 9 out of 10 marks in the written paper which was qualified with interview whereas Muhammad Ashiq respondent No, 3 secured 4 out of 10 marks in the said test. In nutshell according to the learned District and Sessions Judge as the appellant had secured 10 marks of experience therefore, he ranked five marks higher than the appellant therefore, according to him his selection was unjustified. The crucial point in this case would be which has also been discussed by the Additional Registrar in his note submitted to the learned Administration Judge as under;- "Whether the appeal was competent against the order of selection by the higher authority or not.
While dealing with this point the Additional Registrar of Lahore High Court has referred to a case of Muhammad Siddiq, who had been selected as Process Server by the Senior Civil Judge, Jhang, and an unsuccessful candidate who had appeared before the Senior Civil Judge, Jhang, had been selected, filed an appeal before the District and Sessions Judge, Lyallpur, which was accepted by him, ousting Muhammad Siddiq who came in representation to this Court which was accepted by the then Administration Judge (Mr. Justice M.R. Kayani) and the said Additional Registrar has positively conceded that he appeared in that case himself before the said learned Administration Judge, and it was held that according to the fundamental principle of law, no appeal was competent against the order of selection by the said Judge."
' What we find is that while dealing with the representation/appeal of the appellant the learned Administration Judge had made a reference of this categorical statement of the Additional Registrar but by-passed this reference on the ground that the judgment of late Mr. Justice M.R.
Kayani, could not be produced before him. The learned Administration Judge was of the opinion that new-comer should not have been preferred over the old persons in service and this consideration very much weighed with him when he dismissed the appeal of the appellant. We are afraid we cannot agree with the learned Administration Judge on this matter as we ourselves have held in a number of cases that no appeal lies in matter of selection against the decision of Selection Committee unless and until it is proved on record that Selection Committee had committed certain act of malice or has fabricated or interpolated in the record to show favour to one and disfavour to another.
8. While going through the judgment of learned District and Sessions Judge, Bahawalpur, we find that only consideration with him for upsetting the decision of the Selection Committee was that they have not counted 10 marks of experience as laid down in the circular letter of S&GAD and thus while considering the numbers of each candidate has found that Muhammad Ashiq respondent had secured 10 marks while Akhtar Mahmood Ansari did not secure the same for lack of experience of earlier service by him. We fail to understand this logic as the circular on which the learned District and Sessions Judge, has made reliance is only directory in nature and not mandatory. It does provide guideline but ultimate decision rests with the Committee itself which is the sole judge of the candidates appearing before it for a particular post, which was a post of initial recruitment.
The learned District and Sessions Judge has also failed to realize that the appellant in the written test which was qualified with interview by him, had secured 9 out of 10 marks whereas the respondent had secured 4 out of 10 marks. This important aspect of the case was also negated. Be that as it may, all this consideration pales into insignificance when we face with the crucial issue as to whether the appeal was competent against the decision of the Selection Committee in matter of selection/promotion respectively, or not. We have given our considered thought to this issue and do not feel any hesitation to hold that no appeal lies against the decision of Selection/Promotion Committee in matter of selection/promotion etc. Unless and until it is found that the selection was based B on malice. In the present case we do not find any malice in the order of selection as we have examined the same and find that the Selection Committee came to its conclusion and was fully justified to ignore the experience and to rely on the personality of the appellant after he was given the test and interview. With their discretion it was not influenced by any malice, no authority can interfere with the same. This has been spelled out under section 21 of the Punjab Civil Servants Act, 1974, that "no representation shall lie in the matters relating to determination of fitness of a person to hold a particular post."
9. In view of the above we accept the appeal, set aside both the impugned orders and direct that the appellant be treated as having remained in service all along and will be entitled to all hack benefits. There will be no order as to costs.