SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN): --The appellant Syed Ali Ashraf Shah Gillani is at present posted as Tehsildar in Development Programme at Muzaffarabad. He has brought this appeal against the order of promotion No. S.M/5767-84/90, dated 19-11-1990 made by the respondent-Government in favour of respondents Nos. 2 to 4. The appellant has impleaded Azad Government of the State of Jammu and Kashmir through its Chief Secretary and the respondent-- -s promotees Nos. 2 to 4 for the redress of his grievances.
2. The facts giving rise to this appeal are that the appellant was promoted and appointed to serve as Tehsildar in the Revenue Department w.e.f. 5-11-1975` and since then he has been doing his job to the best of satisfaction of his superior officers. It is stated by the appellant that while submitting his objections on draft seniority list invited by his Department, he had pointed it out to the Authorities concerned that he was senior to Sardar Taj Muhammad Khan respondent No.2 because of the fact that he had joined the service of the Department as Tehsildar on 5-11-1975 three days earlier than the respondent No.2 who had joined as such on 8-11-1975. But his objections were not attended to by the competent Authority and he was placed in the seniority list next to Sardar Taj Muhammad Khan respondent No.2, Mr. Arbab Khalid Abbasi and Qazi Muhammad Tayyab respondents Nos.3 and 4 were most junior to the appellant because they had entered the service of the Department w.e.f 30-1-1977 and 21-2-1976 respectively long after the promotion and appointment of the appellant as Tehsildar in the Department. According to the seniority list which had -attained its finality on the date of issue of the impugned order, the appellant was placed as senior to respondents Nos. 3 and 4 but strangely enough the appellant was not considered for his promotion to the next higher post and under the impugned order the aforesaid respondents Nos.3 and 4 were promoted to the post of Extra-Assistant Commissioner w.e.f 19-11-1990. It is claimed by the appellant that the seniority of a civil servant in the cadre of his service is the vested right of the civil servant and the appellant was illegally and capriciously deprived of his vested right of seniority and promotion to the next higher post. Feeling himself aggrieved, the appellant brought a review petition before the Government/respondent No.1 but the same was not heard and disposed of within the stipulated period of 90 days provided by the law. Hence through this appeal, the appellant has invoked the jurisdiction of this Tribunal under section 4 of Service Tribunals Act, 1975.
3. It is prayed by the appellant that the order of promotion of respondents Nos.2 to 4 may be cancelled for the above reasons submitted in the appeal and after having considered the case of promotion of the appellant, he may be promoted and -appointed as Extra-Assistant Commissioner and in case he is held entitled to any other alternate relief, the same may also be granted to him for the ends of justice.
4. The above appeal was admitted for regular hearing by a short order of this Tribunal dated 22-5- 1991 and the respondents were asked to submit their objections, if any, as to the maintainability of the impugned order of promotion of respondents Nos.2 to 4. On behalf of Government (respondent No.1), it was submitted that the order of promotion of respondents Nos. 2 to 4 was made after considering the case of the promotion of the appellant on the basis of his seniority-cum-fitness.
According to the respondent-Government, the seniority alone does not supply a valid ground of promotion to be made in a case of a civil servant unless his suitability is assessed on merits and fitness. The respondents Nos.2 to 4 after having been assessed more suitable than the appellant were promoted to the next higher grade and post. On behalf of respondents Nos.2 to 4, it was submitted that the appeal was not maintainable against the order of their promotion because the Selection Board and the Secretary Revenue were the necessary parties to be impleaded in the appeal and without having them brought on record, the appellant was not entitled to seek any relief against them. The impugned order of promotion is not the final order and for that reasons, the appeal against them was also incompetent. According to them, the appellant is not an aggrieved civil servant and was therefore, not entitled to seek any relief before this Tribunal.
5. We have considered the arguments as were addressed by the learned counsel of each party. We nave carefully gone through the record as was placed on the file by the appellant as well as his adversaries (respondents). Before we take up the case of promotion of the appellant, we shall be required to go through the relevant ruler of promotion by which the posts of Extra-Assistant Commissioner are filled up through promotion from among the members of appellant's service and cadre. The Azad Jammu and Kashmir Extra-Assistant Commissioner (Recruitment and Promotion) Rules, 1980 (herein after to be called as EA.C. (Promotion) Rules prescribe the procedure to be followed for filling up the vacancies of EA.C. By promotion. Rule 5, sub-rule (2) of EA.C.
(Promotion) Rules provides that the vacancies shall be filled up by promotion from among the members of the sub-cadres of the A J & K Tehsildars whose names will be available in select list `A' to be maintained in accordance with the provisions of clause (a) of sub-rule (3) in proportion of the strength of such sub-cadre. Sub-rule (3) of rule 5 provides how a select list is to be maintained and according to sub-rule (3), clause (a), a select list `A' in Form I to the said rules shall be prepared in consultation with the Secretary, Revenue of the Tehsildars who will be considered fit for promotion to the service and only the Tehsildar of outstanding ability and merit shall be considered for promotion. Further, selection of officers for being brought on the select list referred to in sub-rule (3) shall be strictly on merit with particular reference to their fitness for higher responsibilities. It is further provided in sub-rule (5) of rule 5 that no entry shall be made in the select list to be maintained under the provisions of sub-rule (3) (a) of that rule nor shall an entry appearing therein be removed or the order in which the names in select list be altered without the previous approval of the Commission. Sub-rule (6) of rule 5 postulates that in making appointments from among Tehsildars whose names appear in a select list to be maintained under the provisions of sub-rule (3)(a) the order in which the names appear in the select list shall be followed. This rule further provides that no person who is not less than forty-eight years of age shall be appointed to the service by promotion and according to the proviso attached to that sub-rule, the, age limit for granting promotion to the post of EA.C. Can be extended up to 50 years. Sub-rule
(7) prescribes qualifications and according to clause (a) of that rule, no person shall be appointed by promotion unless he is a Graduate from a recognised University and has undertaken successfully the training and passed the departmental examinations in the required standard as prescribed for members of such service by the Government of Punjab.
7. The impugned order of promotion of respondents Nos.2 to 4 was made by the respondent- Government on the basis of recommendations of Secretary, Revenue Department. Among the respondents Sardar Taj Muhammad Khan although a Matriculate held senior position than the appellant in the seniority list and his seniority having been taken into consideration of his promotion leaves little scope for the appellant to challenge the order of his promotion on the basis of his seniority. But the promotion to this officer has also been granted after committing departure from the relevant EA.C. (Promotion) Rules referred to above and, therefore, he also cannot be categorised to win the race on merits especially when he does not have the requisite qualifications for his next higher promotion. We have verified it from the office of Secretary, Revenue that in case of promotion of officers, respondents Nos.2 to 4, no select list was maintained by that officer and that they were picked up for promotion on the sole report of the Revenue Secretary. While going through the recommendations of Secretary, Revenue placed on the file on `noting side' at pages 1 to 4, we find that the appellant was not considered for promotion because his service record was found generally not good. The Secretary has not given some reasons in support of his view and `prima facie' his recommendation is nothing short of his personal liking and disliking about the officers to be brought on the promotion list and those to be dropped from that list. We have very carefully gone through the service record of the appellant alongwith the record of A.C.Rs. Written by his senior officers. There is nothing in that record to blamish the record of service of the appellant excepting a few A.C.Rs. Which were not conveyed to him for his explanation and final decision at the higher level. Legally speaking these A.C.Rs. As were not conveyed to the appellant do not have any adverse affect on the service career of the appellant and were not supplying a reasonable ground for refusing him promotion if he otherwise fulfilled necessary qualifications required for his promotion to the post of EA.C. However, we take this opportunity to discuss below a few of the A.C.Rs. Which are written by the senior officers of the appellant and which are purported to be the adverse remarks on the file of the appellant. For example in A.C.R. For the year, 1988 the appellant was graded to be a good officer than the majority of the officers in the Department and he was also declared fit to be promoted on his turn by the reporting officer, Sardar Muhammad Rafique Khan the then Rehabilitation Commissioner. These remarks were not endorsed by the countersigning officer Mr. Sajad Hussain who was perhaps then holding the higher office of Secretary, Rehabilitation Department. But Mr. Sajad Hussain has not given his reasons as to why he differed with the view held by the reporting officer. It shall be noted here that the countersiging officer while differing with the view held by the reporting officer was required to give his cogent reasons for not accepting the report of reporting officer by quoting specific instances with regard to the work and conduct of the appellant. It shall suffice to say that the reporting officer had numerous opportunities to closely watch the work and conduct of the appellant and in our opinion he was the best suited person to judge the competence of the appellant who had worked under him for the reporting year. The next report is that of Mr. Rashid Ahmad Gardeezi, Assistant Commissioner Authmaqam, which has graded the appellant to be below average and not fit for promotion at the relevant time of making remarks. It is recorded that the appellant was not showing full attentions to his responsibilities and was not regular of his duty. The reporting officer should have given his remarks by quoting specific instances and must have conveyed his remarks to the appellant for improvements but the reporting officer failed and no such remarks as were considered to have been adversely affecting the service record were conveyed to the appellant. It is important to note here that adverse remarks should ordinarily be communicated to the officer concerned mainly to enable him to make efforts for his improvements and when any adverse remarks are made in the annual confidential report of any officer, copy of the whole report should be furnished to that officer at the earliest opportunity i.e., within one month from the date the report is countersigned by the next higher senior officer. The remarks recorded by Mr. Rashid Gardeezi are of general nature and cannot be considered sufficient for refusing the appellant to be placed on the select list to be maintained for the promotion of the appellant.
8. Under section 8 of Azad Jammu and Kashmir Civil Servants Act, 1976 a civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a post reserve under the rules for departmental promotion in the higher grade of the service or cadre to which he belongs. Such post may either be a selection post or a non-selection post. In case of a selection post, selection is to be made on merit and in case of non---selection post appointment is to be made on the basis of seniority-cum-fitness. It is, no doubt, that no civil servant has a claim to ask for promotion as of right and the giving, or refusal of promotion is a matter, which is within the exclusive discretionary domain of the Executive Authorities concerned in the matter. The equality guaranteed under the Constitution cannot take away the right of Government to pick and choose proper persons for employment in Government service. The accepted principles of promotion from one post to another in case of selection post is a selection on merit with due regard to seniority.
Merit does not mean good service record only. It includes experience, qualifications and suitability for the post of service to which promotion is made. The words, "with due regard to seniority" imply that while emphasis is to be placed on good service record, qualifications and aptitude for the higher post, the officer's relative seniority in the cadre from which promotion is being made should be given due weight. The greater the disparity in seniority the greater should be the junior officer's superiority in merit. Adverting to the merits of the case, we find that the relevant EA.C. (Promotion; Rules appear to have not been consulted by the respondent Government while making the impugned order of promotion of respondents Nos. 2 to 4. The first requirement of the aforesaid rules is that the names of the candidates must have been brought on the select list, which was not prepared in the instant case of promotion. This rule of procedure - also envisages that the post of EA.C. Shall be filled up by selection from among the suitable candidates of the subordinate cadre.
Secondly this rule prescribes that a candidate for his promotion to the post of EA.C. Must be a Graduate from a recognised University. Thirdly, he must have passed all the departmental examinations of the required standard in the papers prescribed by the Punjab Government and according to the said rule the fourth prerequisite condition is that a candidate must not be above the age of forty-eight years. But excepting age factor, none of the respondents possessed that qualifications provided in the rule of procedure to make himself eligible for promotion. The post of EA.C. Falls in the most important branch of the executive and sometimes the holder of that post is deputed to meet with the grave situations of maintaining law and order apart from his magisterial work which he is required to perform under the Criminal Procedure Code. It is provided by rule 12 of EA.C. (Promotion) Rules that any of the rules may be after recording reasons in writing relaxed in an individual case if Government is satisfied that a strict application of the rule would cause undue hardship to the individual concerned. But this provision is further controlled by the proviso to the effect that wherever such relaxation involves a question on which the consultation with the Commission is mandatory the Commission shall be consulted before the relaxation is made. In the instant case the respondent-Government has relaxed the application of EA.C. (Promotion) Rules and has not obtained the previous permission of the Public Service Commission which of course, is mandatory provision of Rule 12 with Rule 5, sub-rule (5) of EA.C. (Promotion) Rules. Therefore, the departure in following the service rules on wholesome basis shall be considered as unwholesome and reprehensible. If this practice is allowed to continue, we are afraid things would not reach normalcy and one day the entire administrative structure will fall to the ground because of the grippled administrative machinery and the nation as a whole will receive tremendous set-back at the hands of corrupt and ill-elements. At the same time, we also believe that in situation like this act of the Government in exempting some members of service from passing test required to be passed for promotion and its denial of such exemption to other members by itself constitute an unequal discriminatory treatment. There is no denying the fact that the appellant was senior to respondents Nos. 3 and 4 and this qualification was not shared by the respondents promotees Nos.
3 and 4. The appellant having been placed senior to respondents Nos. 3 and 4 was entitled to be considered and equated with the respondents even if all of them were possessing necessary qualifications but as we find none of them fulfilled required qualifications for promotion and the respondent-Government after having exempted them from the operation of EA.C. (Promotion)
Rules did not do justice to the appellant.
9. For the aforesaid reasons, we find ourselves unable to endorse the order of promotion of respondents Nos.2 to 4 passed under the impugned order. The objection of the respondents that the order being not final one was not appealable at this forum, is also considered to be of little force. Keeping in view the fact that in written statement the respondent/Government has already accepted the impugned order to be a promotion order, we find no force in this argument that the impugned order is not a final order. It shall be noted here that a promotion order is always accepted to be a final order even if it is providing a temporary or a stopgap arrangement. Hence we allow this appeal and order that the impugned order of promotion shall be vacated and the available vacancies of EA.Cs. Shall be filled up from among the members of the service available in the subordinate cadre of Tehsildars in accordance with the rule of procedure prescribed. No order as to costs.