1. ' BASHARAT AHMED SHEIKH, J.---Before examining the facts and the points involved in the present appeals we wish to bring on the record that in this case initially arguments were heard on 13-2-1991 and two separate judgments were signed but it became necessary to re-hear the appeals. The necessity arose on account of the fact that a Notification No,Admn/345- 405/82, dated 12-1-1982 was filed before hearing commenced in this Court. According to this notification the post of Registrar Cooperative Societies was made a part of Management Group set up by virtue of Management Group Composition, Recruitment and Promotion Rules 1980. In accordance with the aforesaid notification the post of Registrar Cooperative Societies, which at the relevant time was held by Ch. Muhammad Latif respondent, and four posts of Secretaries to the Government were made a part of the Management Group. This notification was brought under consideration in the judgment written by one of us [Basharat Ahmed Sheikh, J.] and certain conclusions were drawn in light of contents of this notification. Sardar Said Muhammad Khan, C.J. Concurred with this judgment. When Sardar Muhammad Ashraf Khan, J., had the occasion to go through the judgment, another notification, which was not part of the record, came to his notice. This notification issued on 13-9-1984 amended the notification of 12-1-1982, mentioned earlier, and the post of Registrar Cooperative Societies as well as four posts of Secretaries to the Government were deleted from the posts borne on the Management Group. This notification was taken note of by Sardar Muhammad Ashraf Khan, J., and he drew different conclusions. In this view of the situation it became clear that in the majority judgment a notification which stood materially amended had been brought into consideration. Thus, it was decided to re-hear the cases and necessary notices were issued. This judgment is being written after the rehearing. The judgments previously recorded and signed have been included in the record. In the present judgment the notification of 12-14982 has been kept out of consideration. The result, has however, remained unchanged.
2. ' The procedure we have followed is in consonance with rule 2 of Order X of the Supreme Court Rules, which is to the following effect:--- "2. Save as may otherwise be provided in these Rules, a judgment pronounced by the Court or by a majority of the Court or by a dissenting Judge in open Court shall not afterwards be altered or added to, save for the purpose of correcting a clerical or arithemetical mistake or an error arising from any accidental slip or omission."
3. It follows that a judgment can always be altered or added to at any time before it is pronounced in open Court.
4. ' Syed Sajid Hussain, appellant in Appeal No,35 of 1990, was promoted as Secretary to the Government and was placed in Grade 20 on the recommendation of the Azad Jammu and Kashmir Selection Board vide Government Order issued on 21-4-1988. Ch. Muhammad Latif, who was at the relevant time posted as Additional Secretary Services and General Administration Department, challenged this order by filing an appeal with the Azad Jammu and Kashmir Service Tribunal on 5-9-1988. Immediately before promotion as Secretary to the Government Syed Sajid Hussain was a Joint Secretary in the Azad Jammu and Kashmir Secretariat. Ch. Muhammad Latif based his claim on the grounds that he was MA. Public Administration and also a law graduate while Sajid Hussain was only a graduate; he was senior in Grade-19 by more than seven years; he was holding the post of Additional Secretary while Syed Sajid Hussain was a Joint Secretary; and that he had been working as Chief Administrator Ushr and Zakat which was a Grade-20 post. Ch. Muhammad Latif averred in his appeal that his name was not considered by the Selection Board in violation of the rules applicable to the case. He contended that the promotion of Syed Sajid Hussain was vitiated on the ground that no rules had been framed to lay down the qualifications and other connected matters for promotion to the post of Secretary to the Government although the framing of the rules was mandatory. He also raised the point that the Selection Board violated the instructions issued by the Government in its order, dated 20th of June, 1983 that the Selection Board shall not consider the case of any promotion which is unaccompanied by departmental rules.
5. ' The Service Tribunal accepted the appeal by its order recorded on 8th of April, 1990. The Tribunal rejected the contention raised on behalf of the respondents that Ch. Muhammad Latin.. Case had been brought under consideration by the Selection Board and he was not found fit for promotion.
6. The Tribunal held that the departmental rules prescribing qualifications for the post of Secretary to the Government had not been framed which invalidated the promotion of Syed Sajid Hussain. The Tribunal was of the view that Ch. Muhammad Latif had the right to be considered for promotion as Secretary to the Government because basically he was the head of the attached department "
7. (Registrar Cooperative Societies) and also had been serving in the Secretariat for more than five years as Joint Secretary and Additional Secretary and he had definitely acquired qualifications and sufficient experience for the secretariat service. It was also found that Ch. Muhammad Latifs lien in the present department was not traceable and he was presumed to be a member of the secretariat service with effect from his posting there since 3rd of April, 1983. It was also observed that because of his earlier entry in Grade-19 and also because he was holding a senior post as compared to Syed Sajid Hussain, Ch. Muhammad Latif should have been considered for promotion as Secretary to the Government. After holding that the promotion of Syed Sajid Hussain was not in accordance with law, the Tribunal permitted him to continue as Secretary till framing of the relevant rules and regularisation of his promotion. The Tribunal gave another direction, which needs to be reproduced verbatim:- "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."
8. ' There seems to be a slight vagueness in the relief granted by the Tribunal but since the matter before the Tribunal related only to one post of Secretary the only conclusion which can be drawn is that the Tribunal has directed that after the framing of the relevant rules the case of Ch. Muhammad Latif shall also be considered by the Selection Board alongwith that of Syed Sajid Hussain and that it should be done without delay.
9. ' Against this order of the Service Tribunal two appeals were filed. One was filed by Syed Sajid Hussain while the other was filed on behalf of the Azad Government of the State of Jammu and Kashmir and the Chairman Selection Board. Both the appeals are being disposed of by this judgment.
10. ' We heard Mr. Manzoor Hussain Gillani in support of the two appeals and Raja Muhammad Hanif Khan on behalf of Ch. Muhammad Latif respondent in both the appeals. At the re-hearing of the cases on 3-11-1991 Kh. Shahad Ahmad appeared on behalf of the appellants in both the appeals.
11. Before dealing with other points involved in the appeals we would like to deal with a preliminary objection raised on behalf of the appellants that the appeal filed by Ch. Muhammad Latif did not lie in view of the following proviso (b) of section 4(1) of the Service Tribunals Act: "4. Appeal to Tribunals. (1)................
(a) ............ ..... ......... .
(b) To appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade; and (c)......................................
12. ' This bar is applicable to cases where the case of a person has been considered and he has not been found fit for promotion but the record shows that the case of Ch. Muhammad Latif was not considered by the Selection Board. The record shows that on the 6th of January, 1987 the Chief Secretary wrote a note that this time officers belonging to Secretariat should only be considered for promotion as Secretaries to the Government. He even mentioned the names of Sardar Muhammad Ibrahim Khan, Kh. Abdul Ahd Kant and Syed Sajid Hussain as the officers who in the opinion of the Chief Secretary should be considered for promotion. The Prime Minister accorded sanction to this proposal on the same day. It is also clearly recorded in the minutes of the Selection Committee dated 3-1-1988 that the High Court had, on a writ petition filed by Ch. Muhammad Latif, directed that at the time of selection Ch. Muhammad Latil's name be considered and his case, therefore, was brought under consideration but the Prime Minister had already approved the proposal of the Chief Secretary that the officers from the Secretariat service alone would be considered in the present selection. It is recorded in the minutes under reference that fitness or otherwise of Syed Sajid Hussain and Kh. Abdul Ahd Kant was considered. It is clear from the minutes that the fitness or otherwise of Ch. Muhammad Latif was not considered by the Selection Board. The objection thus fails.
13. ' It was also contended by the appellants that according to his own averments made in the memo.
14. Of appeal before the Service Tribunal, Ch. Muhammad Latif was held of an attached department and he had no right to be considered for promotion as Secretary to the Government and, therefore, could not challenge the promotion of Syed Sajid Hussain. In the relevant minutes of the Selection Board no such thing was incorporated. A perusal of the minutes mentioned above shows that it was in fact impliedly admitted that Ch. Muhammad Latif could be considered for promotion to the post of Secretary but was not considered because of the decision taken by the Prime Minister that only the officers belonging to the Civil Secretariat should be promoted. It is falsified by the subsequent minutes of the Selection Board, dated 13th of April, 1990 in which the Selection Board presided over by the Prime Minister selected Ch. Muhammad Latif for promotion as Secretary to the Government in Grade-20.
15. ' It seems that there is some confusion as to which post Ch. Muhammad Latif substantively holds. In para. 2 of the memo. Of appeal filed in the Service Tribunal he averred that his cadre was that of a head of an attached department. The Service Tribunal .Has observed that Ch. Muhammad Latifs lien against the post of Registrar, Cooperative Societies is not traceable. This observation seems to be based on the fact that Ch. Muhammad Latif has been away from that post for a number of years when he served as Chief Administrator, Ushr and Zakat and subsequently in the Secretariat where he has been working since 1983. In our view the Tribunal should not have attempted to trace his lien because he averred that he was holding his lien against that post and this fact was admitted by the Azad Government of the State of Jammu and Kashmir as well as Syed Sajid Hussain in their written statements. Thus, the only conclusion which can be reached is that Ch. Muhammad Latif continues to be substantively the Registrar of the Cooperative Societies and the other posts which he has been holding and the post now held by him are in pursuance of section 9 of the Civil Servants Act under which a civil servant can be posted anywhere in the discretion of the Government.
16. ' The learned counsel for the appellants has contended that the Tribunal has wrongly held that the post of Secretary cannot be filled up unless rules for the purpose of laying down necessary qualifications for that post are framed. The view framed by the Service Tribunal on this point is based on the rules known as the AJ&K Civil Servants (Appointment and Conditions of Service)
17. Rules, 1977. As is clear from the opening paragraph of these Rules, these Rules have been framed under rule 23 of the AJ&K Civil Servants Act, 1976 which empowers the Government to make such Rules as may appear to be necessary or expedient for carrying out the purpose of that Act. It is provided in section 4 of the Civil Servants Act that appointment to a civil service or a civil post shall be made in the prescribed manner by the Government, or by a person authorised by it in this behalf. The word `prescribed' is defined in section 2 of the Act to mean 'prescribed by rules'. The scheme of Civil Servants Act shows that if a person is promoted to a post this is termed as an appointment by promotion. In the AJ&K Civil Servants (Appointment and Conditions of Service)
18. Rules, 1977 (hereinafter to be referred to as the Rules of 1977) rule 3(1) provides in specific terms that an appointment to a post shall be made by promotion transfer or initial recruitment. Sub-rule (2) of this rule reads as follows:- "(2) Appointments by promotion or transfer shall be made in accordance with Part II and by initial recruitment in accordance with Part III of these Rules."
19. ' It may be noted that the word 'shall' has been used in this sub-rule which signifies that the procedure laid down in Part II of the Rules has to be followed for appointment by promotion. Part II begins with Rule 9 and ends with Rule 15. Sub-rule (1) of Rule 9 in clear terms lays down that:-- "(1) Appointments by promotion or transfer to posts in various grades shall be made on the recommendations of the appropriate Committee or Board."
20. ' Rule 10 lays down that: "10. 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."
21. Post' is defined in the Rules of 1977 to mean a post in connection with the affairs of the Government.
22. Rule 10 thus clearly provides that no person shall be promoted etc. Unless he possesses the qualifications and meets the conditions laid down for that purpose. The rule in fact prohibits the Selection Authority from even considering the case of such a person. This rule is followed by Rule 12 which is to the following effect: "12. Until the Rules laying down the qualifications and other conditions for the purpose of promotion are made no person shall be promoted to a post in a higher grade on regular basis unless he has passed such test as may be specified by the appointing authority to be conducted by the selection authority: ' Provided that the Government may dispense with the requirement of passing the test in relation to such posts as may be specified."
23. Rule 12 gives a temporary relaxation that till the framing of the rules laying down the qualifications and other conditions postulated by rule 10 promotion of a civil servant may be ordered but only as a result of a test which may be specified by the appointing authority. The Rules of 1977 are in the nature of fundamental rules which are applicable to all civil-servants as is clear from sub-rule (3) of Rule 1 and whenever a post is to be filled by appointment by promotion, transfer or deputation or an ad hoc appointment has to be made these Rules have been made applicable. These Rules eliminate to a great extent arbitrary exercise of powers by the concerned authority in the matter of appointment and promotion of civil servants. The wording in which the Rules referred to above have been couched show, in unmistakable words that these Rules are mandatory. Therefore, the conclusion is that the post of Secretary cannot be legally filled up whether by promotion or otherwise unless 'there exist rules conforming to the requirement of rule 10 mentioned above. We, therefore, uphold the view of the Service Tribunal in this aspect.
24. ' Government Order issued under No, Admn/A-(46)/83 dated 20-6-1983 is clearly in consonance with the mandate of Rules of 1977. In this notification it has been ordered in paragraph 3 that whenever a case is sent to the Selection Board/Selection Committee the working paper shall be accompanied by the relevant Service Rules otherwise the Selection Board/Selection Committee shall not bring the matter under consideration. In paragraph 4 of the Government Order it is laid down that any violation of the instructions contained in the Government Order shall be recognizable and anybody who violates these instructions shall be proceeded against for appropriate disciplinary action. It was held in The Punjab Province of West Pakistan v. Din Muhammad and others PLD 1964 SC 21 that administrative instructions contained in memorandum issued by the authority competent to alter or amend Rules are effective and binding as statutory Rules. Similar view was expressed by the Indian Supreme Court in Lalit Mohan Deb and others v.
25. Union of India and others AIR 1972 SC 995 by holding that administrative instructions which are not inconsistent with rules already framed can be issued by the Government. Thus the Azad Jammu and Kashmir Selection Board which is a body set up by the Government is bound by these instructions and any disobeyance would render the proceedings taken by it as illegal.
26. ' During the course of arguments it was submitted "before us that there are no rules in respect of the posts of Secretary in the Punjab. This argument has no force. We are interpreting the law and Rules which are in force in Azad Jammu and Kashmir and the mere fact that, as claimed, no rules have been made in the Punjab would not advance the case of the appellant.
27. ' During the course of arguments a point was raised that Ch. Muhammad Latif could not challenge the promotion of Syed Sajid Hussain because under section 8 of the Civil Servants Act a civil servant is eligible for promotion only to a post for the time being reserved under rules for departmental promotion in any higher cadre or grade of service to which he belongs. It was contended that since the post of Secretary was not a post borne on the cadre or service to which Ch. Muhammad Latif belongs and, therefore, he could not be termed as an aggrieved civil servant within the meaning of section 4 of the Service Tribunals Act. This argument did not find favour with this Court in the majority judgment in case titled Abdul Latif Ansari v. Azad Government and others Civil Appeal No,42 of 1990, decided on 5-5-1991. Speaking for the majority of the Bench one of us Sardar Said Muhammad Khan, C.J. Observed as follows:--- "Before parting with the case it may be pointed out that I am unable to subscribe to some of the observations made in the judgment proposed by my learned brother at pages 10 to 12 to the effect that even if the appellant had been regularly holding the post of Secretary on the relevant dates, he could not be regarded as an 'aggrieved' person within the meaning of section 4(a) of the Service Tribunals Act and, thus, would have no locus standi to assail the impugned order. I am of the view that the interpretation of the word 'aggrieved' made by my learned brother is too 'strict and is not in consonance with the scheme of the Civil Servants Act and the rules framed thereunder. As I agree with the final conclusion arrived at by my brother, I need not dilate on this aspect of the matter in detail."
28. ' We have already reached the conclusion that there are no rules for filling up the posts of Secretary to the Government, whether by promotion or by direct recruitment. The Government has not constituted any Secretariat service so far. The post of a Secretary is one of the most important posts in the Government and it should go without saying that the most experienced and best civil servants are to be appointed to perform the functions of a Secretary.
29. ' The question, therefore, arises wherefrom the incumbents of these posts would be drawn. Since the post of Secretary itself is not borne on any cadre of service it naturally follows that the post of a Secretary, if needed to be filled up by promotion, would be filled up by selection from the senior civil servants of Azad Jammu and Kashmir. Such civil sevants may be heads of attached departments or civil servants working in the Secretariat or elsewhere. It is agreed between the parties that the posts of Secretary to the Government are filled up by promotion from amongst the heads of attached departments of different grades as well as from amongst the civil servants working in the Secretariat. It is significant that it is recorded in the relevant minutes of the Selection Board that the case of Ch. Muhammad Latif was to be considered by Selection Board alongwith the name of Syed Sajid Hussain but it was not done because of the fact that the Prime Minister had ordered that the vacancy lying vacant at the relevant time should be filled up from the civil servants belonging to the secretariat. This shows that the respondent was otherwise eligible for promotion as Secretary.
30. The very fact that the name of Ch. Muhammad Latif was not considered as aforesaid makes him an aggrieved person having locus standi to challenge the promotion. It is not disputed that Ch. Muhammad Latif is the senior most head of the attached department and when the impugned promotion was made he had been working in the Secretariat for a number of years and was holding the post of Additional Secretary. He was senior to Syed Sajid Hussain in Grade-19 as well as in the posts they were then holding. It is, therefore, that he was being considered for the post of Secretary. It is also on the record that Ch. Muhammad Latif was subsequently approved by the Selection Board for the post of a Secretary [this selection has not so far been given effect to]. We, therefore, conclude that Ch. Muhammad Latif could raise grievance against the promotion of Syed Sajid Hussain.
31. The appeals have, therefore, no force and are dismissed. We uphold the view of the Service Tribunal that the promotion of Syed Sajid Hussain as Secretary to the Government was invalid beause no Rules had been framed with respect to the appointment to the posts of Secretaries to the Government. We also uphold the direction given by the Service Tribunal that Syed Sajid J Hussain may continue as Secretary to the Government till the post which he is holding is filled up on regular basis. This may be done after framing of the Rules and in accordance with law. We desire that the matter of framing Rules under discussion may be finalised expeditiously by the Government.
32. ' We have noted that during the selection of the post of Secretary to the Government certain officers who were not themselves in Grade-20 sat as members of the Selection Board. In our view this is in conflict with the spirit of law. Although it is nowhere provided by law that a senior person should be a member of the Selection Board but we have no doubt that such a requirement inheres in the concept of selection. Selection means evaluation of merits, ability and suitability of the concerned officers. How can such a judgment be passed by officers who do not have sufficient training and experience. How can a-person who is not himself Secretary to the Government examine the fitness of a civil servant senior to him to hold the post of Secretary to the Government.
33. Since the appeals can be decided on other points we do not want to specifically record a verdict on this point, but it would be desirable if the Government may re-constitute the Selection Board keeping in view the purpose and concept of selection so that possibility may be excluded that a selection may be found to be a sham selection or a fraud on statute.
34. ' SARDAR MUHAMMAD ASHRAF KHAN, J.---I have had the privilege of going through the judgment recorded by my learned brother Mr. Justice Basharat Ahmad Shaikh and agreed to by the learned Chief Justice but regret my inability to subscribe to the order of dismissal of appeal proposed to be made therein as, in my view, the appeal of Ch. Muhammad Latif, respondent, against the order of Government appointing by promotion Syed Sajid Hussain appellant, as Secretary to the Government in N.P.S. No,20 was not maintainable before the Service Tribunal in view of the provisions of Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter referred to as Constitution), the Azad Jammu and Kashmir Civil Servants Act, 1976 (hereinafter referred to as Civil Servants Act) and the Azad Jammu and Kashmir Service Tribunal Act, 1976 (hereinafter referred to as the Service Tribunal Act) for which reason alone it ought to have been dismissed by the Service Tribunal.
35. ' The Service Tribunal has been established by the Act of Legislature known as Service Tribunal Act in prusuance of the provisions contained in section 47 of the Constitution which reads as under:-- "Administrative Courts and Tribunals.--(1) Notwithstanding anything hereinbefore contained, the (Council in respect of matters to which its executive authority extends, and the Assembly in respect of matters to which the executive authority of the Government extends), may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of---
(a) matters relating to the terms and conditions of persons who are or have been in the service of (Azad Jammu and Kashmir) including disciplinary matters; (b).....................................
36. (c).....................................
37. ' The bare reading of the above provision of law/Constitution makes it clear that the jurisdiction of the Service Tribunal is restricted only to matters relating to terms and conditions of the civil servants. Now the question arises as to what is meant by the terms and conditions of service of persons who are or have been in the service of Azad Jammu and Kashmir. The answer to the above question has been provided in the Constitution itself. Section 49 which deals with the services lays down that:- "Subject to this Act, the appointment of persons to, and the terms and conditions of service of persons in, the service of Azad Jammu and Kashmir may be regulated by law."
38. ' Thus, the terms and conditions of services of civil servants which fall within the ambit of exclusive jurisdiction of the Service Tribunal in terms of provisions of the Constitution referred to and reproduced above would only be those terms and conditions which have been determined by the law which has been enacted. The law enacted in this respect is Civil Servants Act whose section 3 is to the effect that the terms and conditions of a civil servant shall be as provided in this Act and the Rules which means that the services of civil servants shall be governed by the terms and conditions as laid down in the aforesaid Act and the Rules made thereunder.
39. ' The right of appeal to the civil servant against the order of departmental authority before the Service Tribunal is conferred on him by section 4 of the Service Tribunal Act which is reproduced below:--- "4. Appeals to Tribunals.-- Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service including disciplinary matter may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal- "
40. ' The above provision of law would show that it is not each and every order of the departmental authority which has been made appealable before the Service Tribunal by a civil servant but only that order of the departmental authority made in respect of any terms 'and conditions of his service of which the civil servant is aggrieved is made subject to the appellate jurisdiction of the Service Tribunal. A civil servant, thus would only be aggrieved by an order of the departmental authority whereby any of the terms and conditions of his service guaranteed by law or Rules have been adversely and prejudicially affected.
41. ' When the case of the respondent is examined in the light of the above state of law there remains no manner of doubt that the respondent is not a person aggrieved by the impugned order of promotion of the appellant inasmu ch as none of the terms and conditions of the service guaranteed to him under the Civil Servants Act or any Rules made thereunder had been infringed or violated. Section 8 of the Civil Servants Act deals with the promotion of a civil servant and is couched in the following words:- "8. Promotion.---(1) A civil servant possessing such minimum qualification 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 promotion shall be made as may be prescribed.--
(a) in the case of selection post, on the basis of selection on merit, and
(b) in the case of a non-selection post, on the basis of seniority-cumfitness."
42. ' The above provision of law unambiguously restricts the eligibility for promotion of a civil servant only to any post of higher grade of his service or cadre provided he possesses necessary qualifications prescribed by Rules for such a post and he as a right cannot lay any claim to eligibility or right to promotion to any post carrying higher grade of pay which does not belong to his service or cadre. The case of the respondent as made out before the Service Tribunal as well as before this Court is that he substantially holds the post of Registrar Cooperative Societies in which capacity he is a head of the department which stand also finds support from the record. Thus, he in view of the provisions of section 8 of the Act has a right to promotion to a post higher in grade in the department of Cooperative Societies to which he belongs and not to any post in higher grade belonging to some other department of the Government. It is undisputed that the post of Secretary to the Government does not belong to the department of the Cooperative Societies and as such promotion or eligibility to promotion to the aforesaid post cannot be demanded by the respondent by way of right vested in him under any service law or rules. In this view of the matter the imugned promotion of the appellant to the post of Secretary to the Government has not in any way adversely affected any of the terms and conditions of the service guaranteed to him under law and he cannot make any legal grievance of his non-consideration for promotion to the said post by the Selection Board while selecting the appellant for appointment to it. Even otherwise when the terms and conditions of his service as guaranteed under law do not confer on him a right to eligibility for promotion to the post of Secretary his appeal against the impugned promotion of the appellant was also barred both under proviso (b) to section 4 of the Service Tribunal Act and Rule 9(2) of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service)
43. Rules, 1977. The proviso to the aforesaid section of the Service Tribunal Act envisages that no appeal shall lie to the Service Tribunal against the order or decision of the departmental authority while rule 9 (2) above lays down that promotion including pro forma promotion shall not be claimed as of right by any civil servant. The above provisions of law debarred the appeal of the respondent against the impugned order of promotion of the appellant to the Service Tribunal. Had the respondnet been eligible as of right for promotion to the post of Secretary to the Government and he was not considered by the Selection Board while making selection for the said post then, of course, he could make legal grievance against his non-consideration for promotion by the Selection Board and could consequently challenge the impugned order of promotion of the appellant made by the Government on such recommendations of the Selection Board but as held ealier since he was not eligible for promotion under the terms and conditions of his service guaranteed to him under law his appeal before the Service Tribunal against the impugned promotion of the appellant was incompetent and unmaintainable.
44. ' My learned brother in his judgment has found the respondent eligible for promotion to the post of Secretary to the Government and entitled to raise grievance against the impugned promotion under consideration on the grounds that the post of Secretary to the Government was filled up by promotion from amongst the heads of the attached departments of different grades as well as from amongst the civil servants working in the Secretariat; that he would have been considered by the Selection Board for promotion to the post of Secretary to the Government at the relevant time but for the orders of Prime Minister to the effect that the vacancy lying vacant should be filled from the civil servants belonging to the Secretariat; that the respondent is seniormost head of the attached deparment and had been working in the Secretariat for number of years and was senior to the appellant in Garde-19 as well as holding the post senior to the appellant and that he was subsequently approved by the Selection Board for the post of Secretary. But with due respect I may say that in my view the above grounds did not make the respondent either eligible as of right to promotion to the post of Secretary to which the appellant was appointed or made him a person aggrieved by such promotion in terms of provisions of section 4 of the Service Tribunal Act. The mere precedents, conventions or the fact of the respondent being head of department and senior in Grade-19 as compared to the appellant did not vest the respondent with the right to eligibility to promotion to the post under consideration and thus entitled him to challenge the impugned order before the Service Tribunal in appeal.
45. The above consideration, in my view, cannot have a force of law so as to declare the respondent as eligible for promotion to the post of Secretary to the Government under law especially when section 49 of the Constitution clearly postulates that the terms and conditions of civil servants shall be governed by law. The relevant law referred in the earlier part of this judgment only entitles the respondent for eligibility to promotion to higher grade in his service to which he belongs and not to any post in higher grade in any other service.
46. None of the above grounds on which the respondent is held to be eligible for promotion to the post of Secretary by my learned brother in his judgment, in my view, can legally be given the status of a term and condition of service of the respondent guaranteed to him under law made in pursuance to the requirement of the provisions of the Constitution referred to above. On the contrary all of them run counter to the provisions of section 8 of the Civil Servants Act which circumvent the eligibility of a Civil Servant to promotion only to a higher grade of his service and cadre.
47. ' The very ground made the basis by the respondent to assail the impugned order itself negates his claim to eligibility for promotion to the post of Secretary to the Government. The respondent has taken exception to the promotion of the appellant to the said post on the ground that it has been made in absence of rules required to be framed under rule 12 of the Azad Jammu and Kashmir Civil Servants (Appointments and Conditions of Service) Rules, 1977 which places an embargo on the promotion of a civil servant to a post in higher grade on regular basis unless the rules laying down the qualifications and other conditions for promotion to the said post are made. Thus, how the respondent can lay claim to eligibility to promotion to the post under consideration when the Rules laying down the qualifications and other conditions for promotion to it have yet not been framed.
48. ' For the reasons stated above I am of the opinion that the appeal of the respondent before the Service Tribunal against the impugned promotion of the appellant was barred under law. When the appeal of the respondent was not entertainable by the Service Tribunal the question of giving any decision as to whether the order promoting the appellant was valid or not did not arise. The above question, therefore, cannot be gone into by this Court when the Service Tribunal against whose judgment the present appeal is filed was not competent to decide it.
49. ' For the foregoing reasons the appeal is accepted and by setting aside the order and judgment of Service Tribunal dated 8-4-1990, the appeal of the respondent before the Service Tribunal against the impugned order of the appellant is dismissed.
50. ORDER OF THE COURT Since in case of difference of opinion the majority view has to prevail, the appeals are dismissed.
51. The majority view shall be the judgment in these cases.