1. ' BASHARAT AHMAD SHAIKH, J.--Appellant Muhammad Aslam Khilji and respondent Abdul Haq Abbasi were initially serving in the Revenue Department. The appellant, Muhammad Aslam Khilji, became a Tehsildar on 11th of February, 1974, while respondent Abdul Haq Abbasi became Tehsildar on 16th of May, 1974. Later on Muhammad Aslam Khilji was promoted as Revenue Assistant prior in time as compared to Abdul Haq Abbasi and it is now clear that appellant Aslam Khilji was senior to respondent Abdul Haq Abbasi.
2. ' Both of them were working as Revenue Assistants when on 2-12-1980 the President of Azad Jammu and Kashmir, in exercise of powers under section 23 of the Civil Servants Act, framed the Azad Jammu and Kashmir Extra Assistant Commissioners (Recruitment and Promotion) Rules, 1980 in order to regulate the recruitment and promotion of Extra Assistant Commissioners and prescribing their conditions of service. By these Rules the cadre of Extra Assistant Commissioners was constituted and the posts of Revenue Assistants were re-named as Extra Assistant Commissioners and it was provided in rule 15 that all officers substantively holding the posts of Revenue Assistant on the date of coming into force of these rules shall be deemed to have been appointed as Extra Assistant Commissioners under these rules subject to certain conditions. One of such conditions was that if an officer had not completed his period of probation he was required to complete it. The other condition was that the officers who were deemed to have been appointed under these rules were to complete successfully the training programme and pass the departmental examination as was prescribed in Punjab for the post of Extra Assistant Commissioner. It was laid down in sub-rule (5) of Rule 8 that in case a member of the service failed to successfully complete his training or pass any departmental examination prescribed under sub- rule (4) within such period or in such number of attempts as the appointing authority may fix he shall be liable to be reverted to his former post and if there was no such post his service could be dispensed with. This stipulation was however subsequently withdrawn.
3. ' As both the contestants before us had become Extra Assistant Commissioners after the promulgation of the Rules mentioned above their next promotion was possible as Assistant Commissioners. The post of Assistant Commissioner is not a promotion post but is a post which is to be filled in on the basis of merit and forms part of another service known as the Azad Jammu and Kashmir Management Group which was created on 20th of December, 1980 when the President of Azad Jammu and Kashmir promulgated the Azad Jammu and Kashmir Management Group (Composition, Recruitment and Promotion) Rules, 1980. In accordance with these Rules all the posts of Assistant Commissioners and Deputy Commissioner as well as the specified number of posts of Secretary to the Government etc. Were to form part of Management Group. In order to be inducted in this group the entry point was the post of Assistant Commissioner. Sixty per cent of these posts were to be filled in by initial recruitment on the basis of competitive examinations while forty per cent of the posts were to be filled in 'by promotion on the recommendation of Selection Board from members of Extra Assistant Commissioners Service on the basis of merit and fitness for higher responsibilities'. It was provided in rule 6 of the Rules that no person could be appointed to the Management Group unless he was a graduate from a recognised University.
4. ' There fell vacant two vacancies in the cadre of Assistant Commissioner which were to be filled from amongst the Extra Assistant Commissioners and it is on 20th of March, 1984 that the order which is bone of contention between the two contendants before us was issued. By virtue of this order two Extra Assistant Commissioners, namely: Ghulam Abbas Nagiana (not before us) and respondent Abdul Haq Abbasi were promoted as Assistant Commissioners on the recommendation of the Selection Board. As has become evident during the litigation between the parties when this order was passed appellant Muhammad Aslam Khilji had not cleared the departmental examination in higher standard while Abdul Haq Abbasi respondent had already done so. In respect of appellant Muhammad Aslam Khilji and two other Extra Assistant Commissioners the order under reference said that if they did not clear the departmental examination in higher standard in two opportunities which had been given to them on 11th of February, 1982, they would not remain Extra Assistant Commissioners and in that case Abdul Haq Abbasi, respondent, would be deemed to have superseded them. The appellant Muhammad Aslam Khilji felt aggrieved due to the fact that he was senior as Extra Assistant Commissioner to Abdul Haq Abbasi and he moved a review petition which was dismissed on the 1st of July, 1986, whereupon he filed an appeal before the Service Tribunal. The Service Tribunal dismissed the appeal finding no merit in it on the 31st of October, 1987.
5. ' Before the Service Tribunal a number of points were urged. Amongst them was the contention that the appellant was already in BPS-17 when the extra Assistant Commissioners Rules were promulgated on 2nd of December, 1980, and these Rules unlawfully deprived him of his status which he was enjoying at that time as Assistant Commissioner and to that extent the Rules may be declared as inoperative. It was prayed that it may be declared that he was an Assistant Commissioner and continued to be so even after the promulgation of the Extra Assistant Commissioners Rules. This plea has been dealt with at length by the Service Tribunal and has been decided against the appellant. This contention was not raised before us and, in our view, wisely so.
6. ' On merits, the Service Tribunal formed the view that since the appellant had not passed the departmental examination in higher standard at the time of the selection of Abdul Haq Abbasi as Assistant Commissioner the appellant was not eligible for promotion. This view has been vehemently contested by the learned counsel for the appellant, Ch. Muhammad Ibrahim Zia.
7. Before dealing with the question whether the appellant was not eligible for promotion as Assistant Commissioner on the relevant date, we would like to clear a factual dispute whether the case of the appellant Muhammad Aslam Khilji was considered by the Selection Board and he was not found fit for promotion or his case was not brought under consideration at all.
8. ' In the appeal filed before the Service Tribunal by Muhammad Aslam Khilji it was averred by him that his name was not brought under consideration while recommending the names of respondent Abdul Haq Abbasi and Ghulam Abbas Nagiana, against whom no appeal has been filed by Muhammad Aslam Khilji. This averment is duly supported by an affidavit filed by Muhammad Aslam Khilji in the Service Tribunal. In the objections filed by the Government this statement was not controverted. However, respondent Abdul Haq Abbasi denied this averment and submitted that the appellant had not been found suitable for promotion on the ground that he had not passed the departmental examination in the higher standard. Respondent Abdul Haq Abbasi did not file any affidavit along with his objections and this fact was duly pointed out by the appellant in the replication filed by him in the Service Tribunal. Even then Abdul Haq Abbasi did not file any affidavit in support of his contention that the appellant had been found unsuitable for being promoted as Assistant Commissioner. It is laid down in rule 14 of The Azad Jammu and Kashmir Service Tribunal (Procedure) Rules 1976 that questions arising for determination by the Tribunal shall be decided ordinarily upon affidavit but the Tribunal may direct that such questions as it may consider necessary be decided on such other evidence and in such manner as it may deem fit. Since no other evidence has been led in the case and there is no affidavit controverting the claim of the appellant that he was not considered for promotion by the Selection Board, the only conclusion which can legally be drawn is that the position taken by the appellant is factually correct.
9. ' The relevant file of the Services and General Administration Department was summoned by the.
10. Service Tribunal and has also been transmitted to this Court along with the record of the case. This file contains a copy of the working paper which was sent to the Selection Board. The working per shows that the case of the appellant was not placed before the Selection Board for consideration.
11. The names of the appellant and two other civil servants are mentioned in another context but operative part of the working paper says that the names of Ghulam Abbas Nagiana and Abdul Haq Abbasi may be considered for two posts of Assistant Commissioners in Grade-18 which were available for promotion from the Extra Assistant Commissioners. From this we conclude that the case of the appellant was not sent for consideration by the Services Department and consequently the Selection Board did not examine the fitness or otherwise of the appellant.
12. ' Objections filed in the Service Tribunal by the Azad Government of the State of Jammu and Kashmir are favourable to the appellant. It is surprising that when the appellant filed a review petition against the order by which respondent Abdul Haq Abbasi was promoted it was dismissed but before the Service Tribunal, just a few months later the Government fully endorsed the position taken by the appellant. The position taken by the Government before the Service Tribunal was that the appellant was entitled to provisional promotion as Assistant Commissioner as had been ordered in the case of Shaikh Hafeez-ur-Rehman and others. However, Abdul Haq Abbasi respondent contended that the appellant was not promoted because he had not passed the required departmental examination and his case was rejected on the ground that he had not passed the aforementioned examination. As already noted in actual fact appellant Muhammad Aslam Khilji's case was not sent by the Services Department and it is not on the record as to why it was not thought necessary to send his case although it is an admitted position that Aslam Khilji was senior to Abdul Haq Abbasi at every stage before the latter's promotion as Assistant Commissioner. The appellant became Tchsildar on 11th of February, 1974 and was promoted as Revenue Assistant on 19th of November, 1975, while respondent Abdul Haq Abbasi's dates of,promotion as Tehsildar and Revenue Assistant respectively are 16th of May, 1974 and 19th of November, 1975. The Service Tribunal has adopted the reasoning that since the appellant had not passed the higher standard examination prescribed for confirmation as Extra Assistant Commissioner he was not eligible for being promoted as Assistant Commissioner. While doing so the Tribunal relied on the provisions of the Extra Assistant Commissioners Rules rather than the Management Group Rules. The latter set of rules provide the qualifications and method of promotion as Assistant Commissioner or in other words for induction into the Management Group.
13. It is nowhere provided in these rules that an Extra Assistant Commissioner must have been confirmed after having passed the required examination before he could be appointed as Assistant Commissioner. Rule 6 of the Management Group Rules laid down that no such person shall be appointed to the post unless he is a graduate from a recognised University. This rule is titled 'qualifications' and the only two qualifications mentioned for induction into the Group are being a graduate and production of a certificate of character. The other relevant rule is rule 4. Sub- rule (1) of this rule lays down the manner of recruitment to the post of Assistant Commissioner. It is provided in clause (b) that 40 per cent of the posts of Assistant Commissioners shall be filled in by promotion on the recommendation of the Selection Board from members of the Extra Assistant Commissioners Service on the basis of merit and fitness for higher responsibilities. It is nowhere laid down that a person must be a confirmed Extra Assistant Commissioner or that he must have qualified all the tests which were required for confirmation as Extra Assistant Commissioner to become qualified to be an Assistant Commissioner. We, therefore, do not find any thing in the Rules which may lead us to the conclusion that the appellant was not eligible for promotion as Assistant Commissioner on the relevant date, as held by the Service Tribunal.
14. ' One of the factors which found favour with the Service Tribunal was that for his failure to pass higher standard examination Muhammad Aslam Khilji was liable to be reverted from the post of Extra Assistant Commissioner, therefore, he could not be promoted as Assistant Commissioner. The Tribunal observed on page 9 that: "It is a matter of common sense that an officer who is not fit or qualified to hold a post in NPS-17 how he can be treated fit or eligible to hold a post in Grade-18."
15. ' Obviously the Tribunal while making these observations did not keep in view the apparent distinction between qualification and fitness and thus fell in error. Even otherwise, the Tribunal wrongly assumed that Muhammad Aslam Khilji was liable to be reverted from the post of Extra Assistant Commissioner in case he failed to pass the required test. This assumption runs counter to para.2(ii) of Government Notification issued on 16-4-1984 which is on page 47 of the Service Tribunal file. It is provided therein that Muhammad Aslam Khilji, amongst others, would continue to hold Grade-17 post even if he failed to pass the departmental examination.
16. No doubt 'eligibility' and 'merit and fitness' are entirely different matters. The fact that the appellant was eligible to become Assistant Commissioner did not necessarily mean that he must have been promoted as such. But the fact that he was eligible did create a right in him to be considered by the Selection Board. By denying this right a wrong was done to him and it should have been undone by the service Tribunal which it has failed to do on the assumption that he was not eligible for promotion because he had not passed the examination under reference.
17. ' In order to undo the wrong done to Muhammad Aslam Khilji the normal course for us would have been to set aside the promotion order of respondent Abdul Haq Abbasi and to order that the Selection Board may reconsider the matter with Muhammad Aslam Khilji as one of the candidates but in the peculiar circumstances of the case, we are not adopting this course. The order of Abdul Haq Abbasi's promotion against which Muhammad Aslam Khilji appealed to the Service Tribunal was passed on 28-2-1984. In the intervening period of six years many new developments have taken place. Muhammad Aslam Khilji was subsequently considered fit for promotion by the Selection Board and he was promoted as Assistant Commissioner and both of them have now moved into Deputy Commissioner's grade. Since Muhammad Aslam Khilji has already been found fit for promotion, there is now no question that this exercise may be gone through again. After giving anxious thought to this aspect of the matter we have reached the conclusion that the order which can meet the ends of justice is that Muhammad Aslam Khilji would be deemed to have been promoted from 28-2-1984 in place of Abdul Haq Abbasi. In this respect our attention has been drawn to a similar course adopted by Federal Service Tribunal in Haq Nawaz v. Secretary to Government of Pakistan, Ministry of Defence and 2 others 1984 PLC (C.S.) 8 and we are satisfied that the course adopted in that case was just and proper.
18. ' The appeal is, therefore, accepted and order of the Service Tribunal is set aside. It is ordered that appellant Muhammad Aslam Khilji shall be deemed to have been promoted as Assistant Commissioner on 28-2-1984 in place of respondent Abdul Haq Abbasi. Consequently the appellant would take the respondent's place in the seniority list and vice versa.