SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN): --This is an appeal by Abdul Latif Ansari, Secretary, Food Department, Azad Government of the State of Jammu and Kashmir against Government Notification No. A-1(5)S.O.V./88, dated 20-6-1988 by which respondent No. 3 was promoted as Additional Chief Secretary (General) in Basic Pay Scale No.21. The appellant has impleaded Azad Government of the State of Jammu and Kashmir through its Chief Secretary, Chairman, Azad Jammu and Kashmir Selection Board for B-21 posts and Mr. Muhammad Yousaf Awan, Additional Chief Secretary (Development) as respondents for seeking his relief against them.
2. In the memo of his appeal, it is claimed by the appellant that he was granted National Pay Scale No. 20 vide Government order issued under No Admin./746-753/75, dated 23-2-1975 w.e.f. 2-4-1973 while the respondent No.3 was allowed National Pay Scale No. 19 on 2-4-1973 and National Pay Scale No. 20 on 20-8-1973 and as such he was senior to respondent No. 3 and was due to be promoted to the next higher post of Additional Chief Secretary in Basic Pay Scale No. 21. According to the appellant, he was not considered for promotion by the Selection Board and he was deprived of his right of promotion. The appellant impugns the above order of the Government on the following grounds: --
(i) that at the relevant time and date of promotion of respondent No. 3, the appellant was senior most officer of the Government in Grade-20;
(ii) that the Selection Board had no authority or power to consider and make recommendations in respect of posts for which no departmental rules existed. The respondent No. 1 also travelled beyond jurisdiction Jammu and Kashmir (Sardar Muhammad Sajawal Khan, Chairman) to accept the unwarranted and illegal recommendations of respondent No. 2 on the basis of which the impugned Notification of promotion was made in respect of respondent No. 3;
(iii) that the appellant has been deprived of a valuable right of consideration by the impugned action of respondents Nos. 1 and 2 and as such he was condemned unheard and was deprived of the right of consideration for being promoted to the post of Additional Chief Secretary (General) in B-21. This action of respondent/Government also runs counter to the principles of natural justice.
3. It is prayed by the appellant that by accepting the present appeal, the impugned order of the promotion of respondent No. 3 may be set aside and the respondent No. 1 be directed to first frame the rules for making promotion to the post of Additional Chief Secretary (General) in B-21 and thereafter fill the post in question after considering the case of the appellant for promotion. The appellant also seeks for a declaration to the effect that he being the senior--most officer of Azad Government in B-20 at the relevant time was entitled to be promoted against the post of Additional Chief Secretary (General) in B-21 and in alternative any other relief may also be granted to him if the appellant is held entitled to that.
4. By a short order of this Tribunal dated 23-2-1989, the above-noted appeal was admitted for regular hearing in this Tribunal and the respondents were called upon to submit their objections, if any against the present appeal. Among the respondents, the Additional Advocate-General appeared on behalf of Government/respondent No. 1 while the other respondents were proceeded ex parte. The objections submitted by the learned Additional Advocate --General are that:--
(a) The appellant has never been granted Basic Pay Scale No. 20 in regular process as required under Rule 4, sub-clause 7(1) of - Appointment and Condition of Service Rules, 1977.
(b) that the appeal is not maintainable because the impugned order pertains to the determination of fitness and promotion of a civil servant under section 4(b) of Azad Jammu and Kashmir Service Tribunal Act, 1976 no appeal is permissible against determination of fitness and promotion;
(c) that the impugned order of promotion was made on the basis of the report of Selection Board which had considered the name of the petitioner alongwith many other officers placed on the working paper. But the appellant was never found fit for promotion by the Selection Board;
(d) promotion cannot be claimed as a matter of right under Rule 9(2) of Appointment and Condition of Service Rules, 1977;
(e) appellant's service record was not clean and he was awarded punishments on different occasions;
(f) the appellant was not confirmed in Basic Pay Scale No. 20. In fact, Pay Scale No. 20 was granted to him in an. Autonomous body and hence that promotion was an ex cadre promotion and it was not regularised by the respondent/Government in the regular service. The appellant was not formly promoted to the posts of Secretary and was only drawing personal pay of the last post held by him;
(g) the transfer and promotion in regard to the appellant is still under consideration of the Government and unless the petitioner is regularly promoted to the post of Secretary, he cannot be considered for higher promotion;
(h) the review petition of the appellant before the respondent/Government was barred by limitation.
5. We have examined the record placed on the file and have also considered the arguments as were advanced on behalf of the appellant. There is nothing on the file to show that the appellant held the post of Secretary on regular basis at the relevant time of impugned promotion. The copy of the order placed on the file as Annexure `A' shows that the appellant was granted Pay Scale No. 20 w.e.f. 2-3-1973 while he was employed in an autonomous body as Chairman, Intermediate and Secondary Education Board, Azad Kashmir. The appellant had brought another appeal also against the promotion and appointment of Mr. Tariq Mashood in National Pay Scale No. 21 before Service Tribunal and the same was dismissed in limine by this Tribunal and on second appeal before the Hon'ble Supreme Court the decision taken by the Service Tribunal was also upheld for the reasons that the appellant had not joined the post of Secretary to the Government earlier than the respondent Tariq Mashood. In fact he had joined the Office of Secretary on 26-10-1989 and previously he held Grade-20 for having been posted out of Education Department after retaining his lien in that Department. This shows that he was employed as Chairman of the Intermediate and Secondary Education Board on deputation and National Pay Scale No. 20 was given to him for a fixed period. Therefore, the appellant held no right to be considered alongwith the Secretaries for his promotion to the post of Additional Chief Secretary (General) B-21. It shall be noted here that soon after the promotion and appointment of respondent No. 3 as Additional Chief Secretary (General) in National Pay Scale No. 21, his services were borrowed to Government of Pakistan and a vacancy of Additional Chief Secretary (General) in B-21 had once again fallen vacant and this time the appellant's name was also considered alongwith other officers for his promotion but he was not found fit for that post. It is true that the name of the appellant was not considered for promotion at the relevant time and date of impugned promotion still his consideration for promotion to the post of Additional Chief Secretary (General) at the second Medical Centre (Mian Ghulam Ahmad, J) session of selection Board makes it abundantly clear that he was not fit person to be promoted to that post. If there existed no Departmental Rules for promotion to the post of Additional Chief Secretary then the appellant's suitability too could not be adjudged and his appeal also fails on that account because the terms and conditions of his service are not violated and he cannot prove himself to be an aggrieved civil servant at this forum.
6. For the above reasons, the appeal fails and the same is hereby dismissed. No order as to the costs.