1. ' MUHAMMAD SIDIQUE FAROOQI (CHAIRMAN).--The above 3 appeals are directed against Government Notification No, SM/P(1)123/903- 15/84 dated 25-4-1984, whereby some officers of revenue department namely; Ch. Muhammad Sharif, Raja Abdul Rauf Khan, Mr. Abu Talib Kazmi, Raja Zaffar Hussain, Chaudhry Abdul Qayyum, Sardar Muhammad Khurshid and Sheikh Muhammad Khalil were admitted to select list 'A' under rule 3 of Azad Jammu and Kashmir Extra- Assistant Commissioner Service Rules, 1980. The three appellants in the above entitled appeals submitted review petitions to the Government against Government Notification dated 25-4-1984.
2. The review petition of Sardar Muhammad Anwar Khan was rejected, vide No, Appeal (8)/SM/2052, dated 8-7-1984 and the review petitions of Sheikh Muhammad Khalil and Muhammad Rafiq Mughal were rejected vide No, P(1)/123/2286-93, dated 25-7-1984. Hence the present appeals have been filed by the appellants against the order dated 25-4-1984 and the orders passed in review dated 8-7-1984 and 25-7-1984.
2. Sardar Muhammad Anwar Khan, in his appeal No, 260 pleaded that having entered in service, earlier than the respondents in his appeal, he was senior to them but contrary to the rules, he was ignored when the select list 'A meant for the promotion of Tehsildars to the post of Extra-Assistant Commissioners, was prepared and circulated vide Notification dated 25-4-1984 He maintained that he was a graduate and had also qualified the department examination, prescribed for the post of Tehsildar, therefore, he was eligible f promotion to the post of Extra-Assistant commissioners, at the time preparation of the list. The condition of having qualified the B.A.
3. Examination 1980 or earlier laid down by the Government or the Selection Board is violate rules, therefore, the Select List 'A' should be set aside or amended by inclusion his name, in the list with due regard to his seniority in the department. Accord to the learned counsel for the respondents, the appeal of Sardar Muham Anwar Khan is time-barred. It was argued that the order passed on his re petition was received in his office on 10-7-1984 and it should be deemed that was not informed of the impugned order on 10-7-1984 and but on 26-7-1 when he recorded a note on the order conveyed to him. Raja Mumtaz Hussain Rathore, learned counsel for the respondent No, 8 vehemently contested this point of limitation on the ground that the appeal was preferred after the lapse of more than 120 days, therefore, it was not entertain able. It was also pleaded that order passed was applicable under the provisions of Civil Servants Act, 1976. Only a representation could have been made. No right of appeal has been given under the Extra-Assistant Commissioner Rules, 1980. It was further contended that the right of representation was also not available in this case, for the fact that the order passed related to the determination of fitness of a person to hold a post.
4. The Appeal Rules 1982 (wrongly described as 1977 by the learned counsel) do not provide for an appeal or review in such cases. The appeal before the Tribunal could, therefore, be preferred within 30 days, from the date of preparation of Select List 'A' and not after waiting any further for the result of the review petition. It was also pleaded that appellant should have satisfied the authority that he was a graduate when the particulars of the officers were circulated, for objections, but the appellant failed to do so. He was not qualified at the time, therefore, his name could not be referred to the Selection Board, nor he could be considered. Raja Mumtaz Hussain Rathore further pleaded that promotion could be made on the basis of merit and ability. Referring to a letter of Government of West Pakistan No, 57/3-1/Rs, he maintained that "merit does not mean service record only. It included experience, qualification and suitability for the post or the service to which promotion is being made". Thus, according to the learned counsel, Select List 'A' can neither be set aside nor the name of the appellant can be entered in it. Sardar Rafiq Mahmood, learned counsel for respondents Nos. 2 to 7 also opposed the appeal of Muhammad Anwar Khan. He contended no proof was produced before the department that the appellant had qualified the Bachelor of Arts Examination at the time of preparation of Working Paper. It was further argued by him that the officers entered in the Select List 'A' had occupied the higher position in NPS-17, prior to the consideration of the case, by the Selection Board. They held these posts after the enforcement of Extra-Assistant Commissioner Rules. Their appointment to the post of Extra Assistant Commissioner were temporary, nevertheless the respondent acquired the experience of a higher post, which the appellant did not have, therefore, the Selection Board or the department had rightly ignored the appellant. The learned counsel for the respondents stated that decision of the President dated 10- 4-1984 was correct whereby he directed that officers having graduated earlier than 1980 should be considered first, for admission to Select List 'A'. According to him, this policy directive by the President/Chief Executive was not violative of the rules. It was argued that the appeal is not competent for the reason that the order of promotion has not been challenged.
3. Mr. Abdul Rashid Abbasi learned counsel for the appellant in replication submitted that the appeal was not time-barred because there is nothing on record to show that the impugned order dated 25-41984 was communicated to the appellant on 10-7-1984. According to the learned counsel, the word "him" used in Section 4 of the Service Tribunal Act in context of the communication of the order sought to be challenged has a reference to the person of the officer concerned which means that the limitation would start from the day an individual personally gets the information of an order. Leaving of an order in the office of an individual does not amount to the communication of the order. The counsel for the appellant maintained that objection of the respondent that the appeal is not competent because the order of promotion not being challenged, is not valid office, the knowledge will be presumed from the date of delivery. If he was not at the Headquarter then, the knowledge will be presumed from the date of his return to Headquarter, unless he proves that it was not shown to him prior upto the date indicated by him in the note on the order. There is no proof adduced by the appellant that he was absent from the Headquarter from 10-74984 to 25-71984. Even there is no pleading by him to this effect. When a question of limitation is involved, the appellant while preferring an appeal should explain each day from the date of the receipt of the letter in his office to the date, he claims the knowledge and the circumstances in which he could not get the information. No circumstances have been incorporated in the pleadings. After the receipt of document, in the office of an officer, the initial presumption would be that the letter was received by the officer. If such an officer claims the lack of knowledge he must establish it by evidence, even before that by express pleading. Nobody can creak an evidence in his own favour, in the way the note is recorded on the order dated 8-7-1984.
5. At any rate it is not a pleading, on the subject. The assertion that the appellate received the information on 26-7-1984, is not a pleading. We had requisitioned certain documents, from the department about the tour of the officer but found them contradictory, moreover, in absence of pleading, we cannot resort to the evidence on the point. In these circumstances, it is held that the appeal against order dated 8-7-1984 is not in time.
6. ' It appears from the record that Mr. Muhammad Anwar Khan had passed the BA. Examination and result card was issued to him on 31-1-1984. Record shows that he had made some applications to the authorities, intimating his result to the authorities concerned. The degree was however, not issued in his favour, by that time. The date of degree indicated in the Photostat copy is 31-31985.
7. The Selection Board appears to have considered only such Tehsildars for admission to list 'A' who had qualified the B.A. Examination, in 1980 or earlier. The provisions relevant for the admission in list 'A' embodied in the rule 5, of the Azad Jammu and Kashmir EA.C. (Recruitment and promotion rules) 1980, for the sake of convenience, are reproduced below:-- "5. Method of Recruitment.--(1) All the posts of Extra-Assistant Commissioners shall be filled by promotion.
(2) The vacancies by promotion shall be filled from among members of the sub-cadres of the Azad Jammu and Kashmir Tehsildars whose names appear in select list 'A' to be maintained in accordance with the provisions of clause (a) of sub-rule (3) in proportion of the strength of such sub-cadres.
(3) Government shall maintain:-- (a ) a select list 'A' in form I annexed to these rules, which shall be prepared in consultation with the Selection Board of the Tehsildars, who are considered fit for promotion to the service: ' Provided that only Tehsildars of outstanding ability and merit shall be considered for promotion to the service;
(4) Selection of officers for being brought on the select lists referred to in sub-rule (3) shall be strictly on merit with particular reference to fitness for higher responsibilities.
8. (5)No entry shall be made in the select list to be maintained under the provisions of sub-rule (3)(a) of this rule nor shall an entry appearing ' Therein be removed or the order in which the names in ,Select List be altered without the previous approval of the Commission.
9. The working paper, forwarded by Secretary Revenue shows that officers at S.Nos. 1 to 8 had passed the BA. Examination, prior to the promulgation of the rules. Out of these 8 officers, 7 had already worked on the post of Extra-Assistant Commissioner or equivalent although on temporary basis.
10. Sardar Muhammad Khurshid has not been Extra-Assistant Commissioner, prior to the selection but he is shown to have passed BA. Examination, in January, 1974, much before the appellants.
11. Muhammad Rafiq and Sheikh Khalil were also considered by the Selection Board but the former was not admitted to the list. The jurisdiction of the Tribunal in the matter of selection for promotion is limited. Only in the cases of the violation of rules or the mala fide exercise of powers, by the Selection Authority, the Tribunal can interfere. The proceedings of Selection Board can be set aside and direction can be made for reconsideration of the matter, in the aforesaid circumstances. In the instant case, we have to consider the spirit of the rules. As per proviso to clause (a) of sub-rule 3 of Rule 5, reproduced in the earlier part of the judgment, only the Tehsildars of outstanding ability shall be considered for promotion to the service, as Extra-Assistant Commissioner. This rule empowers the authority to leave out of consideration such officers, who in its opinion are not of outstanding ability and merit. It appears that the Selection Board was of the opinion that officers not having passed the B.A. Examination, upto the enforcement of Extra-Assistant Commissioner Rule could not be treated to have outstanding capability. This criteria adopted by the Selection Board is not violative of rules. The rules do not provide that all persons holding the post of Tehsildar shall be considered by the Selection Authority, rather the outstanding ability and merit is a condition precedent for such consideration. In the opinion of the Selection Authority, graduation before the promulgation of rule is outstanding ability and merit. The person who without requirement of rules acquired the higher qualification, have been treated as possessing more ability and merit than those who entered the service earlier but did not care to improve the qualification. The phraseology used in the proviso to, clause (a) of sub-rule (3) of Rule 5, leaves it open for the Selection Authority to impose certain conditions, even before the consideration of officers, for the selection. Another aspect is also important that the vacancies which occurred immediately after the promulgation of rules and before the selection were filled in by temporary appointment of some officers, who were graduates. The officers, who were not graduate, could have not been appointed, even on ad hoc basis, prior to their having passed the BA. Examination.
12. This is another ground of preference of the respondents. Had the Selection Authority taken the steps, immediately after the enforcement of the rules, only those officers, who are respondent, in the present case, could have been considered and the others were to be automatically left out of the consideration, for lack of the qualification, prescribed by rules. If the action of Selection Authority was delayed, by 4 years, for one reason or the other, it had still the discretion to prefer the officers, who were qualified in 1980, at the time of enforcement of rules, for the retrospective promotion. It can thus leave aside who were not qualified at that time, because they cannot be given retrospective promotion. The select list should have been prepared immediately after the promulgation of rules, so that the vacancies falling vacant at the time of enforcement of rules or those occurring immediately thereafter could be filled in. If the Selection was delayed, it should not adversely affect the right of those persons, who were qualified at the appropriate time, by this inclusion of others, qualifying later. The third aspect is the fitness for higher responsibility as provided by sub-rule (4). The yardstick to measure the fitness is again not provided. The selection authority as well as the Government appear to have rightly taken the aspect of early qualification as a basis for consideration. A person, who voluntarily acquires the qualification without compulsion of rules is certainly better than a person, who attaches no qualification, or is unable to have the better qualification. It is lawful for the Government to make the retrospective promotion to the post, which could not be properly filled in upto the end of 1983. Only such persons could have been considered by the Selection Authority, who were qualified at that time. The Selection Authority determined the suitability on the basis of qualification to enable the Government to make even a retrospective promotion, to which the person already qualified had a right for consideration.
13. Another provision appearing in sub-rule (6), shows that the appointment of persons to the service shall be made in the order, in which the names appear in the select list. This provision again empowers the Selection Authority to place the names of more suitable persons, earlier in the list, than those, who are less suitable, although the later may also be suitable for promotion. The provision for assigning any order, in the list also shows that the Selection Authority has wide discretion in preparing the list. The seniority etc. Finds no place in the rules, for consideration in the matter of selection, for the post. The service record of Muhammad Anwar and Rafiq Mughal appellants is not otherwise very much meritorious that they should be given preference over the respondents. It was argued that the Selection Authority had not considered this aspect. It may be noted that before granting any relief to any appellant, it is necessary for the Tribunal to take into consideration all the aspects, specially, the Annual Confidential Reports and Service Record. We cannot shut our eyes to the record, which should have been considered by the selection authority.
14. If on the basis of record, a person does not deserve preference, the mere fact that record was not considered by the departmental authority will not result in the reversal of the order or proceeding of the lower authority. The Tribunal as a Court of appeal has all the powers vested in the lower authority. The relief is not to be granted on mere technicalities. The appellants, before us were not confirmed even as Tehsildars for a long time because they had not acquired the departmental examination. Even, this aspect shows that the appellants were not having the outstanding ability and merit. This institution is an Administrative Tribunal. It cannot ignore the record.
15. So far as the matter of preference of Muhammad Khurshid over Sheikh Khalil is concerned, it is again a matter to be determined by the Selection Authority. The Selection Board has to prepare the list on the basis of merit and ability and the order in the list should conform the merit and not the seniority. The seniority does not find a place in the rules, for consideration as a factor, for admission to select list.
16. ' As upshot of the above discussion, the appeals are devoid of any force and are, therefore, dismissed. In view of the circumstances of the case, we pass no order as to the costs.