SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN): --This is an appeal by Sardar Muhammad Latif Khan against the Government Notification No. S&GAD/A-1(13)/V/92 dated 12-5-1992 by which Mr. S. Sajid Hussain, Professor Abdul Latif Ansari, Raja Naseem Akhtar Khan, Mr. Muhammad Ilyas Sularia, Kh. Muhammad Usman, Ch. Muhammad Rashid, Mr. Ali Asghar Awan, Ch. Muhammad Latif, Sardar Muhammad Abdur Rashid, Raja Muhammad Altaf Kayani and Sardar Riaz Ahmad Khan were placed as Secretaries to the Government in B-20. Through this appeal it is claimed by the appellant that at the relevant time of the impugned order, he held the Office of Director-General, Inspection and Evaluation in Grade B-20 and that he was also acting as an ex officio Secretary Planning and Development Department w.e.f 2-1-1992. Under a policy decision taken by the respondent Government in May, 1992, the services of incumbents who were already performing functions of Secretary to Government and were already placed in Grade B-20 were to be regularised on the post of Secretary to Government in accordance with the provisions of Secretaries, Service Rules, 1992 (hereinafter to be referred as Secretaries Service Rules). A working paper was drawn up by the Services and General Administration Department and the matter was submitted to the Selection Board for the appointments of Secretaries out of the panel of the Officers. But unfortunately the bio-data and other service particulars of the appellant were withheld by the Services and General Administration Department with the result that he was not included in the group of senior Officers and under the impugned notification he was dropped from being placed against the post of Secretary to Government. The appellant felt himself aggrieved by the aforesaid Government notification and brought a review petition against that before the respondent Government but the same was not decided by the respondent Government within the statutory period of 90 days and hence the appellant submitted his present appeal for invoking the jurisdiction of this Tribunal for the redress of his grievances. The grounds taken in his appeal by the appellant are as follows:- (a)that the Services and General Administration Department with mala fide intention had not drawn the bio-data of the appellant showing the correct date of the appellant's appointment in Basic Pay Scale No. 17 his promotion in BPS No. 18, BPS No. 19 and BPS No. 20 and the period of service spent by him in Grade B-20 while it submitted the bio-data of the promotees Officers showing wrong dates of their entry in service as well as the wrong dates of their entry in Grade B-18, B-19 and B-20 including the period of total length of service spent by each Officer in each grade.
(b)that the Services and General Administration Department made groups of Officers in the relevant working paper and mala fidely missed the name of the appellant to be placed in Class I i.e. In the category of the Officers in B-20 and holding the posts of Secretary at the relevant date of drawing working paper and the date on which the meeting of Selection Board No. 1 was held. The name of the appellant was shown in Group `D' of the Officers in working paper which was meant for the Officers of Civil Secretariat. The Selection Board took the cases of the Officers of Class I (Group A) and left all the other officers to be considered for the post of Secretary.
(c)that under the provisions of Secretaries Service Rules, 1992 the appellant was eligible for being considered to be promoted against the post of Secretary to the Government but the impugned Notification was issued by the respondent-Government in violation of the aforesaid Secretaries Service Rules.
(d)that the appellant had qualified himself after undergoing various training courses within the country and abroad and his meritorious services were purposely kept away from being placed on the working paper so that the appellant may be deprived of his legitimate rights of being considered for the post of Secretary.
(e)that the respondent-Government has made the impugned order of promotion of Secretaries illegally and was thus guilty of discrimination.
2. It is prayed by the appellant that the impugned Notification may be modified and the appellant may be declared to have been regularly appointed against the post of Secretary to the Government w.e.f. 2nd January, 1991. It is further prayed by the appellant that any further relief to which the appellant is held entitled may also be granted.
3. The above-noted appeal was admitted for regular hearing by an order of this Tribunal dated 23- 12-1992 and the respondent Government was asked to submit its objections if any, as to why the appeal should not be accepted. The objections filed by the respondent Government are that the appellant, no doubt, held the post of Director-General, Inspection and Evaluation in BPS No. 20 but he held the Office of Secretary Planning and Development Department purely on temporary basis by way of a stopgap arrangement and while doing his duties as ex officio Secretary, the appellant has not earned any right for his posting against the post of Secretary to Government. The bio-data of Officers was supplied by themselves and the same were placed before the Selection Board along with the bio-data supplied by the appellant. The Selection Board considered 34 officers for the post of Secretaries and the name of the appellant was also included to be considered by the Selection Board. The appellant was considered in the meeting of the Board but he was not found suitable for the post of Secretary and was consequently dropped. According to the learned counsel for the respondent Government, the appeal is not maintainable at this forum- because the impugned order pertains to determination of fitness of the Officers for holding the post of Secretary and under Azad Jammu and Kashmir Service Tribunal Act, 1975 no appeal is 'provided for that.
4. We have considered the arguments as were addressed by the learned counsel for the parties and have also examined the contents of the appeal and the relevant rules-for making the appointments of Secretaries. The appeal was admitted for the determination of following important points of law and facts:- (i)Whether the appellant is an aggrieved civil servant? .
(ii)Whether the appellant at the relevant time of making the impugned order possessed necessary qualifications for being promoted to the post of Secretary, to the Government under the Secretaries Service Rules, 1992?
(iii)Whether the merits of the appellant were mala fidely kept away by the Services Department from being considered by the Selection Board and thus the promotion was refused to the appellant?
(iv) Whether the case of promotion of the appellant to the post of Secretary to the Government was not considered by the Selection Board. If so how does it affect the promotion of other Officers named in the appeal?
(v)Whether the Officers promoted under the impugned Notification are the necessary parties and without impleading them as respondents, the present appeal is not maintainable?
(vi)To what relief, the appellant is entitled?
5. In Secretaries Service Rules, 1992, the post of Secretary to Government has been declared to be a selection post and the method of its appointment is provided in Rule 4 of the said Rules. Under sub- rule (1) of Rule 4 a Head of the attached Department and Commissioners or any person holding equivalent rank of Management Group and also the Head of Department in BPS No. 19 and the Additional Secretaries have been made eligible to be placed on the post of Secretary to Government subject to their selection by the Selection Board No. 1. It is, no doubt, that at the relevant date of selection of candidates from among the Officers brought on the working paper, the appellant held the Office of Director-General, Inspection arid Evaluation in Grade B-20 and he was also acting as ex officio Secretary of Planning and Development Department. Therefore, it shall have to be accepted that the appellant possessed necessary qualifications to be placed on the post of Secretary to the Government and if for any reason he was not properly considered by the Selection Board No. 1 for that post, he is definitely an aggrieved civil servant and for that reason his appeal at this forum is quite competent.
6. A copy of working paper prepared by the- Services and General Administration Department has been placed on the file and while going through the same we find that the name of the appellant was placed in group (sic) despite of the fact that his present posting was shown as Secretary, Planning and Development Department. It appears that the service particulars of the appellant were not noted in the working paper and if anything about him was noted, it was totally incorrect and false. For example, according to service record, the appellant entered in Grade B-17 on 21-10- 1967 and he was recorded to have entered in that grade on 22-2-1976. Similarly he entered in the Grade B-19 on 12-1-1983 but this fact was altogether omitted. The total period of service of the appellant is shown 14 years in the working paper whereas on record, it is about 25 years. There is no comparative statement in respect of the contesting Officers attached to this working paper for ascertaining the suitability of the Officers to be selected for the post of Secretary to the Government. There is also nothing on record to show that after consulting annual confidential reports of the Officers, their grading was maintained for being considered by the Selection Board.
There is no evidence on the file that the particulars of service record of the appellant were withheld mala fidely by any Officer or they were not shown under a mistake due to oversight. But this fact is well established that the correct service particulars of the appellant were not brought on the working paper to be considered by the Selection Board. The mere fact that the name of the appellant was included in the panel of the Officers is not itself sufficient to reach the conclusion that the appellant was also considered for his appointment as Secretary to Government. In the recommendations made by the Selection Board placed on the File No.13 of Selection Board, it is recorded that the Selection Board considered the service particulars of 34 Officers and their annual confidential reports in detail and has selected the eleven Officers promoted to the posts of Secretaries under the impugned order. The appellant has not impleaded the successful Officers and as such we do not have the jurisdiction to say anything about their selection. But this fact is well established that the appellant was not given his proper place in the working paper and nothing was recorded on the file to this effect that he was not fit for the post of Secretary for some reason.
7. It is not out of place to mention here that under Section 8 of the Civil Servants Act, the promotion in the case of a selection post is to be made on the basis of merits and in case of a non-selection post on the basis of seniority-cum-fitness. Thus it was incumbent upon the Selection Board to consider the merits of all the 34 Officers who were included in the panel for promotion to the 11 posts of Secretaries mentioned in the relevant working paper. It appears that the Selection Board considered only the cases of first 11 persons and did not consider the cases of remaining 23 persons including the appellant. A civil servant cannot claim promotion as a matter of right but in view of the provisions contained under Rule 10 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 a civil servant possessing minimum qualifications for promotion to a higher grade/position has a right to be considered for the same.
Since the appellant has not impleaded the Officers placed against the post of Secretary; we have no jurisdiction to make any order about them nor the appellant is entitled to any relief for placing him against one of the posts held by those Officers. The only relief that the appellant may be granted is that his claim for the post of Secretary should be considered by the Selection Board concerned afresh if there is any vacancy of Secretary available to be filled up in the Secretariat of the Government. The appeal is, therefore; accepted to that extent and it is ordered that the case of the appellant for his promotion to the post of Secretary to Government shall be reconsidered by the Selection Board if and when there is a vacancy of Secretary available to be filled up in the Secretariat. No order as to the costs.