' SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN).---The instant appeal is directed against Government Notification No,Admin/A3(21)/S.O-VI/86, dated 13-10-1987 by which Dr. Allah Raheem Khokhar, Civil Medical Officer Samani, Dr. Abdul Qadoos, Civil Medical Officer, Chakswari, Dr. Ch. Muhammad Bashir, Civil Medical Officer, Leprosy Centre, Muzaffarabad, Lady Dr. Ferhat Khalid, Headquarters Dispensary, Muzaffarabad, Dr. Shabir Ahmad Dar, Civil Medical Officer Rural Health Centre, Kahuta (A.K.), and Dr. Rafique Ahmad Khawaja, Civil Medical Officer, District Headquarter, Kotli were promoted against departmental quota of 40 per cent and placed in National Pay Scale No,18. The appellant has impleaded the Azad Jammu and Kashmir Government and the aforesaid promotees as respondents in his appeal.
2. The relevant facts as are contained in the instant appeal are that the appellant was appointed as Civil Medical Officer on 5-2-1979 earlier to the respondents who were quite junior to him according to the seniority list drawn up by the Health Department. The appellant because of his seniority in the Department and good record of service was fully qualified for being promoted and placed in National Pay Scale No,18, but unfortunately, he was dropped and the respondents Nos.2 to 7 were promoted and placed in Grade No,B.18. The appellant challenged the order of promotion of respondents Nos.2 to 7 before the Government but his review petition was rejected and he was informed as to the fate of his petition on 6-8-1988 and for that reason he claims his appeal to be within time. The appellant seeks reversal of the impugned order mainly on the following grounds:-
(a) that the appellant is admittedly senior to respondents Nos.2 to 7 and his service record is neat and clean.
(b) that the case of the appellant was not sent to the Selection Board nor he was given an opportunity of being heard by the Selection Board. In fact his service record was withheld by the Department with a mala fide intention.
(c) that the appellant is serving in the Department for the last ten years and no adverse entry was ever recorded in his A.C.Rs, by his superior Officers. The record of the service of the respondents is not better than the appellant who was the senior most Doctor in his regular cadre of service in National Pay Scale No,17 and was entitled to get National Pay Scale No,18.
(d) that the promotion of the appellant in Grade No,18 against service quota of 40 per cent had fallen due to him for the first time in the year 1984 but his case was not processed out of malice and he was also ignored till the cases of respondents Nos.2 to 7 were sent up alongwith the appellant for selection and promotion.
(e) that the impugned order is discriminatory in nature and he was condemned unheard.
3. It is prayed by the appellant that the order of promotion of respondents dated 13-10-1987 and the order of the respondent-Government dated 12-7-1988 passed on his review petition are not maintainable for the aforesaid reasons, may be set aside and the respondent-Government be asked to promote him in Grade No,18 w,e,f, 1st July, 1984.
4. The objections were filed on behalf of the respondents. In their objections the respondents accepted it that the appellant was senior to them but their objection is that promotions including pro forma promotion cannot be claimed as a matter of right by any civil servant. According to Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, the promotions are made on the recommendations of the Selection Board and the case of the appellant was also brought before the Selection Board but he was not considered suitable for the record of his service being unsatisfactory. The respondents Nos.2 to 7 were having better service record as compared to the appellant and, therefore, their promotions were made under the order impugned before this Tribunal. Finally, it is submitted on behalf of the respondents that the instant appeal was meriting dismissal with costs.
5. We have carefully examined the A.C.Rs, and other service record of the appellant as well as of the respondents Nos.2 to 7. We have also considered the arguments as were addressed at the Bar by the learned counsel of each party. It is contended on behalf of the respondents that no civil servant can claim promotion out of right and that by virtue of section 4 of Service Tribunal Act, 1975 the instant appeal is not maintainable against the impugned order which is passed in favour of the respondents after adjudging their fitness by the Selection Board. We agree to this extent that the jurisdiction of this Tribunal is limited and confined to service matters only as are brought to it under section 4 of the Tribunals Act referred to. But it will be relevant to be pointed out that this limitation does not place any embargo on the powers of this Tribunal to look into the proceedings of Selection Board or Selection Committee or of Public Service Commission wherein the malice is alleged or material mistake is reported to have occurred. The law laid down by the Hon'ble Supreme Court in case Ghias-ul-Haq v. Azad Government of the State of Jammu and Kashmir etc. Reported in PLD 1980 SC (AJ&K) 5 has settled this point of controversy and has laid down that this Tribunal has complete jurisdiction in respect of the proceedings recorded in service matters and that its decision can only be interfered with by the Hon'ble Supreme Court after granting special leave to appeal. In the above-referred case it is further held that this Tribunal has the powers even to go into the vires of statutory rules. This Tribunal is even held competent to strike down a rule also which is found in violation of natural justice. In another case entitled Secretary Government of Punjab v. Ahmad Kamal-ud-Din reported as 1981 SCMR 392, the learned Judges of Supreme Court of -Pakistan have elaborately discussed sections 3 and 4 of Service Tribunals Act pertaining to the jurisdiction of this Tribunal in regard to the terms and conditions of service of civil servants. In this case, it is held by the learned Judges of that Court; "Although the recording of annual remarks is within the exclusive competence of superior Officers, yet such record is not immune from review or reconsideration by this Tribunal and the appeal was always competent to the Service Tribunal." In fact the whole matter of promotion gets re-opened on preferring of an appeal against an order of departmental authority in the Service Tribunal and the Service Tribunal is empowered to confirm, modify or substitute its opinion for that of departmental authority even if the impugned order might have been passed on the report of Selection Board. A similar view was taken in a case entitled Muhammad Sharif v. Inspector-General of Police and three others by this Tribunal consisting of Mr. Muhammad Siddique Farooqi the former Chairman and Sardar Mushtaq Ahmad Khan former Member of this Tribunal reported as 1988 PLC (C.S.) 685. In the aforesaid case, it is held that this Tribunal is competent to go through the proceedings relevant to the promotion of a civil servant wherein the violation of rules, mistake or misrepresentation of facts is alleged and that this Tribunal has got all the powers to quash such proceedings of Selection Authority and make appropriate orders.
6. We agree with this argument that as is envisaged by section 9 of the Civil Servants Act the posts, carrying Pay Scale No, 18 are filled up on the recommendation of the Selection Board and that no civil servant is entitled to claim promotion out of right. But at the same time the prospects for promotion are necessarily deemed to be part of terms and conditions of service and this Tribunal does have the jurisdiction to go into all such cases wherein violation of any of the terms and conditions of service in respect of a civil servant has taken place or the- rules of service have been ignored or misinterpreted. The word `Promotion' has been defined in Rule 1 in Kashmir Service Rules Volume II as follows:-- "The appointment of a member of a service or a class of service of any category or grade to a higher category or grade of such service or class."
7. On a careful analysis of above definition, it can easily be inferred that what is essential to constitute a promotion is the appointment of the civil servant from a lower category or class to a higher category or class of service PLD 1968 Azad J&K 64. It is contended that under section 8 of Azad Jammu and Kashmir Civil Servants Act, 1976 a promotion on a selection post is to be made on the basis of selection on merits and since the case of the appellant has already been considered on merits, his appeal was not maintainable at this forum. The word 'Merit' is not defined in the Civil Servants Act referred to. In Black's Law Dictionary, the word 'Merit' has been defined as under:- ' Merit. "The word 'merit' as a legal term is to be regarded as referring to the strict legal rights of the parties."
A plain reading of the above definition makes it clear that selection on merits would take place after an assessm ent of all relevant considerations such as seniority, honesty, integrity, competence, good service record. In other words it would mean seniority is also to be looked into while selecting a civil servant for a higher post or grade.
8. The right of promotion has been discussed in AIR 1963 Mys. 219 and it is held that among the well-known attributes of public service, one that is least subject to exception is that no employee can claim as of right a promotion from one position to another unless he could do so under a statutory provision or an enforceable condition of service. It is further held in that case that it would be for the State or the promoting authorities to determine such suit abilities after an assessment of all relevant considerations such as seniority, competence, rectitude and antecedent official record, none of which is less important than the other, for the preservation of purity and efficiency in public service. The basis or governing consideration in all promotions is what may be shortly described as merit or suitability. Seniority is in substance one of the necessary elements in the assessment of merit. Besides, equality of opportunity can never be taken to exclude the order of selection. It only requires that while making the selection the Government of the State should apply same standards to all persons similarly situated with respect to the questions in hand. Even with regards to promotional posts other than selection posts idea of selection is not ruled out. The seniority by itself can never confer an absolute right of promotion irrespective of other considerations. But the settled principle of promotion from one post to another is by selection on merit with due regard to seniority and this principle shall be applied uniformally all along the line from the lowest to the highest posts and from one class of service to another. Merit does not mean good service record only. It includes seniority, experience, qualification and suitability for the post or service to which promotion is being 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 Officer's relative seniority in the cadre from which promotion is being made should be given due weight, the greater the disparity in seniority the greater should be the junior Officer's superiority in merit. It is very important to note here that the Azad Jammu and Kashmir Health Department Service Rules, 1984 also provide promotion in that Department to be ordered on the basis of selection on merit- cum-seniority and fitness.
9. In the instant case we have examined the service record, A.C.Rs, alongwith the file of Selection Board of the appellant as well as that of promotees respondents. There is no denying the fact that the record of service of promotees respondents other than Dr. Rafique Ahmad Khawaja respondent No, 7 is comparatively better than the service record of the appellant. But with regard to Mr. Rafique Ahmad Khawaja we find that he has not earned better A.C.Rs, than the appellant who has been classified to be a good officer in one of the A.C.Rs, while both the Officers are shown to be of average standard in other A.C.Rs, excepting that the appellant was once censured for having not written description of some patient who was later on admitted in Hospital and at another occasion he was warned to be careful because of having proceeded on leave without seeking prior permission. We have come across some judicial pronouncements PLC 1985 (C.S.) 848 wherein a minor punishment cannot stand in way of promotion to higher rank in respect of a civil servant.
Legally speaking, the punishment like censure although included in the chapter of minor punishments of Efficiency and Discipline Rules, 1977 still it is nothing short of displeasure of the authority competent to take disciplinary action against a civil servant and this punishment can be even remedied if a civil servant could mend himself and show better performance in his subsequent service. If a civil servant is refused promotion on account of censure then it would mean that he was vexed twice for the same charge. A civil servant, no doubt, can be refused promotion at one time or the second time for his earning bad remarks or any minor penalty, but in absence of any adverse entry appearing in his service record he cannot be ignored of his due promotion on several occasions provided he fulfils the requisite qualifications for being promoted to the next higher grade. The unfortunate aspect of the present case is that the officer was the senior most officer in the penal of Officers sent up for selection before the Selection Board but somehow this important factor of his seniority escaped the notice of the learned Chairman and the Members of the Board and this resulted in a material mistake of fact giving rise to this appeal.
10. There is no iota of doubt in it that the appellant fulfils the requisite qualifications for his promotion to the next higher grade and the fact that he wa superseded and put behind six of his colleagues has left no charm for him to continue his service. There is no adverse entry against the appellant in his A.C.Rs, and withholding of his promotion for an indefinite period despite the fact that he has been categorised in his A.C.Rs, to be fit for promotion at his own turn amounts to negation of justice and fairplay. We agree with this argument that the Service Tribunals Act, 1975 does not authorise this Tribunal to assume the role of the Selection Board in making the selection or that of the State Government in making appointment by promotion. But at the same time we are convinced that the Selection Board should reconsider the matter on the footing that there were no adverse remarks against the appellant and make a proper categorisation on the basis of record of service merits and seniority by applying the same standard and test as was adopted in case of Dr. Rafique Ahmad Khan respondent No, 7.
11. The upshot of the above discussion is that the appeal succeeds and is allowed. The Selection Board shall reconsider the impugned select list prepared in 1987 on the basis of which the impugned order of promotion of respondents was made. If appellant's claim is accepted upon re- consideration in the light of the above exercise, then the order of his selection should provide for his appointment with effect from the date on which the respondents were placed in the selection grade. There will be no order regarding costs.