SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN)---The above-noted two appeals entitled Muhammad Bashir, Sub-Inspector of Police v. Inspector-General of Police and others and Muhammad Rafique Khan, Sub---Inspector of Police v. Inspector-General of Police and others are directed against the orders of Inspector-General of Police dated 5-11-1989 and the order dated 19- 11-1989 by which respondents Nos. 2 to 4 were placed in `F' list and subsequently respondents Nos. 2 to 3 were promoted as Inspector of Police. Since the subject-matter of the appeals as well as the impugned orders in both the appeals are the same, we propose to dispose them of by this single judgment.
2. The relevant facts as are contained in the memo of appeals are that the appellants were senior to respondents Nos. 2 to 4 but their names were firstly wrongly dropped from being included in the `F list and subsequently from being promoted to the next higher post of Inspector of Police. The appellants' claim is that they were fully qualified for promotion and on merits fully deserved the promotion but they were not considered for promotion alongwith the respondents and the promotion was refused to them. It is prayed by the appellants that the impugned orders of promotion of respondents Nos. 2 to 4 may be set aside and they may be substituted as promotees instead of the respondents.
3. The 'aforesaid appeals were admitted for regular hearing in this Tribunal and the respondents were called upon to submit their objections, if any. On behalf of the respondents, it was submitted to this Tribunal that the appellants were not senior to the respondents and were also not fit for promotion otherwise. Their appeals were time-barred and as such not maintainable.
4. We have heard the arguments as were addressed at the Bar by the learned counsel of each party and we have also considered the arguments as were placed before this Tribunal in writing.
There is no denying the fact that the appellants were promoted to the posts of Sub-Inspectors of Police earlier than the respondents Nos. 2 to 4. But this fact alone is not sufficient to determine them senior to respondents for granting them further promotion to the higher posts of Inspectors.
Under Rule 12.2, sub-rule (3) of Police Rules, it is provided that seniority, in case of upper subordinates of Police Department will be reckoned in the first instance from the date of first appointment and the officers promoted from a lower rank shall be considered senior to persons appointed direct on the same date and the seniority of officers appointed direct on the same date being reckoned according to age. But the inter se seniority among the officers of the same rank shall, however, be finally settled by dates of confirmation. In case of respondent No. 2 Khurshid-ul- Hassan, we find that he was confirmed against the post of Sub-Inspector of Police on 1-2-1976 while Mr. Muhammad Bashir the first appellant was confirmed against that post on 1-10-1976 and the second appellant on 4-6-1980 long after the confirmation of respondent No. 2. So, the claim of the appellants that at the relevant time of promotion of respondents, they were senior to respondent promotee No. 2 falls to the grounds. But as against Raja Abdul Rauf, respondent No. 3 their seniority at the time of promotion is well-established from the date of first entry in service as well as from the date of their confirmation because Mr. Rauf as per record available in the Central Police Office was confirmed against the post of Sub-Inspector of Police on 22-11-1984. The case of Ch. Bashir Ullah respondent, No. 4 is not much controverted perhaps for the reason that his promotion was not ordered under the impugned orders excepting that his name was brought on the `F list.
5. The principle of promotion from one post to another is that it should be made by selection on merit with due regard to seniority and this principle is applied uniformly all along the lines from the lowest to the higher posts and from one class of service to another. The words "with due regard to seniority", imply that while emphasis is to be placed on good service record, qualification and rectitude for the higher posts, the officers relative seniority in the cadre from which promotion is being made should be given due weight. It is for the promoting authority to determine the suitability of a person for promotion after an assessment of all relevant considerations, such as seniority, competence, rectitude and antecedent official record. So, the seniority is in substance one of the elements in the assessm ent of merit and it is not the final rule of granting promotion to a civil servant. Rule 13.1, Police Rules deals with the promotion of subordinate members of the staff of Police Department and the same is reproduced below for guidance: -- "13.1. Promotion from one rank to another.---(1) Promotion from one rank to another and from one grade to another in the same rank. Shall be made by selection tempered by seniority. Efficiency and honesty shall be the main factors governing selection specific qualifications. Whether in the nature of training- course passed or practical experience shall be carefully considered in each case. When the _qualification of two officers are otherwise actual the senior shall be promoted This rule does not affect increments within a time scale."
This rule of procedure also provides that the promotion in the ranks of Police Officers is to be made by selection tempered by seniority. Efficiency and honesty shall be the main factors governing selection for promotion from one rank to another.
6. It is next argued by the learned counsel for the respondents that the appellants have not availed of the departmental remedy and as such their appeals before this Tribunal are not competent.
According to the learned counsel under the Azad Jammu and Kashmir Civil Servants Appeal Rules, 1991, the appellants were entitled to bring an appeal or a representation against the impugned orders of promotion of respondents before the next higher authority for the redress of their grievances and without availing of that remedy they were debarred from filing an appeal at this forum. In support of their contention, the learned counsel for the respondents have 'cited an unreported judgment of the Hon'ble Supreme Court entitled Raja Muhammad Latif Khan and others v. Khurshid-ul-Hassan and others decided on 31-3-1991. In reply arguments, it is contended by the learned counsel for the appellants that both Police Rules and Azad Jammu and Kashmir Civil Servants Appeal Rules, 1991 do not provide any departmental remedy to an aggrieved civil servant against the orders of a Departmental Authority determining the fitness of a civil servant to hold a particular post or promotion and hence the present appeal against the orders of fitness and promotion of the respondents Nos. 2 to 4 have been brought by the appellants direct to this Tribunal for invoking its jurisdiction under section 4 of the Service Tribunal Act, 1975. It shall be noted here that if no Departmental remedy was available to the appellants under any rule of procedure then, of course, the question will arise whether their appeals under section 4 of the Service Tribunal Act, 1975 are competent at this forum. In this behalf a reference to the provisos (a), (b) and (c) to section 4 of the Service Tribunal Act will be quite necessary. It is provided in para. (b) of the proviso to section 4 of Service Tribunal Act that no appeal shall lie to this Tribunal against an order or a decision of a Departmental Authority determining the fitness or otherwise of a person to be appointed or to hold a particular post or to be promoted to a higher post or grade. It follows that in cases wherein no Departmental remedy is available under the provisions of the relevant rules, an appeal is also not permissible in those cases at this forum. But the case-law so far developed on this point is that appeals against the orders of promotion made by a Departmental Authority by which another civil servant feels himself aggrieved for not being considered for promotion alongwith the promotees are also admitted in this Tribunal for regular hearing 'such appeals are found competent otherwise. As is provided in Civil Servants Act, 1976 promotion is also one of the terms and conditions of service of a civil servant and breach thereof is undoubtedly an infringement of his right to be considered for promotion to the next higher post and grade. Hence, a civil servant who is duly qualified for his promotion to the next higher post and grade at the event of not being considered for promotion by his Departmental Authority must firstly avail of his departmental remedy before the next higher Authority failing which his appeal at this forum will be meriting dismissal for being incompetent.
7. We have gone through the relevant record and we find that the appellants were not considered for their promotion at the relevant time while making the impugned orders by the Inspector- General of Police respondent No.1 and under such circumstances they were firstly to avail of the Departmental remedy before invoking the jurisdiction of this Tribunal under section 4 of the Service Tribunal Act. If an exception is taken by them from general rule of procedure then, of course, they shall be required to follow the normal course of business provided under the relevant rules. Since the appellants after claiming exception from the general rule of procedure have failed to avail of the Departmental remedy through an appeal or a representation before the next higher authority, their appeals are hit by para. (b) of the proviso to section 4 of the Service Tribunal Act and are held incompetent at this forum.
8. It is next argued on behalf of the respondents that the appeals are time-barred and for that reason too they are meriting dismissal. The period provided for an appeal or a representation to an aggrieved civil servant before the net Jammu higher authority is sixty days from the date of the communication of order to be appealed against and after waiting for three months more for knowing the result of his appeal from the date of filing such appeal or representation he has thirty days more for an appeal to be brought before this Tribunal In the instant case, the appellants have not availed of their remedy before the next higher authority and they have straightaway come to this Tribunal for seeking relief under section 4 of the Service Tribunal Act. It shall be noted here that the appeal of Muhammad Bashir, Sub-Inspector was brought to this Tribunal on 19-12-1989 while the impugned orders are dating back as 5-11-1989 and 19-11-1989. In his appeal, the appellant has not mentioned anything as to when the impugned order was actually communicated to him nor has he applied for extension of limitation in his favour. However, we allow his appeal to be within time because the period spent by him for obtaining copies of the impugned orders is permissible to be deducted from the period of limitation. The case of Muhammad Rafique appellant is somewhat different from that of first appellant. In his memo of appeal, Mr: Rafique has submitted to this Tribunal that the impugned orders were communicated to him on 4-12-1989 and there being no evidence to the contrary, his appeal at this forum shall have to be accepted as within time. But as discussed above both the appeals have been brought to this Tribunal without availing of the Departmental remedy by the appellants and are meriting dismissal on that account. Before recording our conclusion, we feel ourselves advised to place it on the file that the seniority of the appellants as against respondent Raja Abdul Rauf was well-established at the relevant time of promotion of respondents and in view of their seniority they may also be considered for their promotion to the next higher post.
9. For the reasons recorded above, we find no force in these appeals and the same are hereby dismissed with cost: A copy of this judgment shall be placed on the next file also which is entitled Muhammad Rafique v. Inspector --General of Police and others.