' SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN).-- The instant appeal is directed against Government Notification No, Admin/A1(11)188, dated 21-4-1988 by which respondent No,3 Syed Sajid Hussain was promoted as Secretary to the Government and was placed in B.P.S. No,
20. The appellant Ch. Muhammad Latif is a Grade-19 Officer at present posted as Additional Secretary, Services and General Administration Department.
2. The claim of the appellant is that:--
(i) He is an M.A. (Public Administration) and holds the Degree of Laws from Punjab University in addition to that. He is better qualified than the respondent No, 3 who is simply a graduate.
(ii) By virtue of his regular promotion in Grade No, 19 w,e,f, June 1st, 1972 he was senior to respondent No, 3 at the relevant time while the latter was placed in that grade on September 1st, 1979 long after the promotion of the appellant in B.P.S. No, 19.
(iii) He was drawing a sum of Rs, 250 p.m. As special pay in addition to his pay and allowances fixed in B.P.S. No, 19 and because of special pay attached to his post at the relevant time he held the status and position of Additional Secretary while respondent No,3 was then holding the post of Joint Secretary lower in rank and pay scale to that enjoyed by the appellant.
(iv) He was also appointed as Chief Administrator of Ushr and Zakat carrying basic Pay Scale No,20 and this fact further supported the view that at the relevant time the appellant held and enjoyed higher status and position as compared to respondent No,3.
(v) He also claims his seniority as against respondent No,3 on the ground that at the relevant time because of his higher academic qualifications, long office experience and his devotion to hardwork, he topped the merit list from among the attached Heads of Departments to be considered for promotion to the post of Secretary to the Government in B.P.S. No,20.
3. The grievance of the appellant is that the respondent No,2 in its meeting held on January 11th, 1987 considered only the case of respondent No,3 and two other Joint Secretaries who are no longer in service and selected them for their regular promotion to the posts of Secretaries to the Government in violation of the rules of practice and procedure and thereby ignoring the legitimate rights of promotion of the appellant as well as many other Heads of Departments. He is also aggrieved by this fact that under the provisions of Azad Jammu and Kashmir Civil Servants Act, 1976 (hereinafter referred to be as the Act) all vacancies in the services under the Government are filled up either through ad hoc appointments or initial recruitments or by way of promotion from among the subordinate Officers in accordance with the rules and procedure prescribed for that but in his case even the rule of practice was ignored and he was not considered for promotion alongwith the respondent promotee No,3. He feels aggrieved on this account as well that the provisions of the Act which enjoined upon the respondent Government to frame rules for carrying out the purposes of the Act were bypassed by the respondents Nos.1 and 2 as no rules were framed by them to fill up the vacancies of Secretaries on merits.
4. Under the instructions issued on 20th of June, 1983, it was emphasised upon all the Departments by the Government that the cases of promotion as are to be found unaccompanied by Departmental Rules shall not be considered by the Selection Board. But in the instant case the respondent Government itself ignored these instructions and made the impugned order to give benefit to the respondent No,3 with retrospective effect. The appellant moved a review petition before the respondent Government for setting aside the impugned order and making the order of his promotion . But no decision was taken on that petition and finally he was left with no alternative except to invoke the jurisdiction of this Tribunal.
5. The relief claimed by the appellant is that the impugned orders issued under Government Notification No,A-1(11)/88 dated 21-4-1988 and No, Admin/3-3(2)/85 dated 21-12-1985 may be set aside with cost with a direction to the respondent Government to promote the appellant as Secretary to the Government w,e,f, 3-12-1985 the date on which the respondent No,3 was promoted.
6. We have examined the record and have also heard the arguments as were addressed by the learned counsel of each party. It is postulated by section 3 of the Act that the terms and conditions of service in respect of a civil servant shall be regulated as provided in the Act and the Rules made thereunder. Section 8 of the Act, deals with the cases of promotion. The said section 8 of the Act, is reproduced below :-- "8. Promotion.--(1) A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a post for the time being reserved under the rules for departmental promotion in any higher grade of the service or cadre to which he belongs.
(2) A post referred to in subsection (1) may either be a selection post or a non-selection post to which promotions shall be made as may be prescribed:--
(a) in the case of a selection post, on the basis of selection on merit; and
(b) in the case of a non-selection post, on the basis of seniority-cum-fitness.
' The Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service Rules), 1977 made under the Act also provide that only such persons as possess the qualifications and meet the conditions laid down for the purpose of promotion or transfer to a post shall be considered by the selection authority.
7. In the instant case the Departmental Service Rules are not available and presently we do not know what are the required qualifications to fill up the post of Secretary to the Government. But the well-established principles regulating promotions are that the promotion from one post to another should be by selection on merits with due regard to seniority. The word "merit" does not mean good service record only but it also includes experience, qualifications and suitability for the post or service to which promotion is made. The words "with due regard to seniority" imply that while emphasis is to be placed on good service record qualifications and aptitude for the higher post, the Officers relative seniority in the cadre from which the promotion is being made should be given due weight.
8. It is also of immense importance that while making a promotion of a person against a selection post or non-selection post the appointing Authority must determine the suitability of a person after assessm ent of all relevant considerations such as seniority, competence, rectitude and antecedent official record. But in the instant case the inter se seniority of Officers employed in Secretariat Service as Joint Secretaries as well as in the ranks of attached Heads of Departments was not taken into consideration by the Selection Board perhaps for the reasons that the posts of Secretaries were not to be filled up in open merits.
9. We agree with this argument that under the statutory provisions of law hereinbefore referred to it is one of the important functions of the respondent Government that its every administrative unit must have its own rules of service so that the persons falling in one line of promotion or cadre could get an equal opportunity of being considered for promotion to a next higher post. At the same time fixation of line of promotion in a particular grade of service or cadre entirely depends upon the employer (promoting authority) because if he provides in rules of law that experience for one post will also be sufficient for another then it is not for any other person to say that two posts are not in the same line of promotion. While going through 'the record as maintained in the Office of Secretary Services and General Administration Department, we find that before passing the impugned order the posts of Secretaries were either filled up through promotion or by transfer from among the Heads of attached Departments. The orders of promotion of Mr. Abdul Hamid, Ex- Director of Industries and Khawaja Ghulam Ahmad Pandit, Director of Information supply the ample proof of the fact that the post of Secretary to Government falls within the line of promotion of attached Heads of Departments. But there is no instance to quote that the post of Secretary who is also designated as Head of Department was ever filled up from among the Joint Secretaries with the exception of those promoted under the impugned order despite the fact that they also situate within the same line of promotion.
10. If there are no departmental rules, legally speaking, there can be no selection on merits. There is no quarrel about it that the powers of making appointments of Secretaries to the Government vests in the respondent Government and the Government alone can provide the mode of selection from among the employees from one line of promotion or the other. But it is always desirable that all the candidates eligible for promotion to the post of Secretary to the Government must get equal opportunity of being considered for promotion. This is possible only when the rules are framed and the line of promotion in respect of each cadre or group of civil servants is established and their qualifications and experience are prescribed as may be presenting the required qualifications for promotion to the post of Secretary. In the instant case not only that there are no rules to follow the instructions issued by the Government itself banning the promotions in the given circumstances have also been ignored in making the impugned order.
11. It is argued on behalf of respondents that in compliance with the observations of High Court, the case of appellant was also considered earlier for promotion but he was not found fit for that. There is no truth in this argument. In fact, the name of appellant was placed in Qartas-a-Kar, but the same was dropped in the meeting of Selection Board on the ground that only the Officers of Secretariat Service were to be considered for promotion to the post of Secretaries to the Government.
12. In absence of Departmental Rules prescribing the necessary qualifications for the post, the promotion of respondent No,3 is not in accordance with law and the rules made under the Civil Servants Act. If the rule of practice is to be followed then, of course according to the practice in vogue, the post of Secretary to the Government falls within the line of promotion of the appellant who is basically a Head of the attached Department. The appellant stood posted in the Secretariat w,e,f, 3-4-1983 as Joint Secretary and Additional Secretary and since he is not on deputation in the Secretariat Service and his lien is not traceable in his parent department, he is presumed to be a Member of the Secretariat Service also w,e,f, the date of his posting in the Secretariat Service viz. 3- 4-1983. He has definitely acquired sufficient experience by now in the Secretariat business and for that reason his consideration for promotion out of Secretariat Service was also the need of time.
13. The appellant is an M.A. (Public Administration) and he also holds Degree of Laws in addition from the Punjab University and the fact that he is better qualified than the respondent promotee needs no proof. It is even conceded by the learned counsel for the respondents. Under section 9 of the Act referred to a civil servant can be posted anywhere against the post of equal grade and pay provided the same is not less favourable to him and the appellant too had no option to his services being transferred in the Secretariat. Because of his earlier entry in Grade-19 he also held a senior position to respondent promotee who was placed in that grade about seven years after the entry of the appellant in that grade and being a Member of Secretariat Service as Joint Secretary and Additional Secretary, the appellant also stood in the line of promotion of promotee (respondent No,3).
14. For the aforesaid reasons, the appellant should have been considered for promotion by respondent No,2. But it is unfortunate that he was not considered for his promotion to the post of Secretary at the relevant time. In the given circumstances, we cannot endorse the promotion of respondent No,3 as a regular order of promotion although we are of the view that he should be permitted to continue till the Rules are framed and his promotion is regularised. At the same time in view of larger interest of justice, fair play and equity, we also feel advised to allow this appeal to this extent that the case of the appellant for promotion as Secretary to the Government w,e,f, the date of promotion as such of respondent No,3 should also be considered and decided on merits without further delay. No order as to the costs.