MUHAMMAD YUNUS SURAKHVI, J.--This appeal, with the special leave of the Court, has been directed against an order recorded by the Service Tribunal of Azad Jammu and Kashmir on December 31, 1995, hereby the order of promotion of the appellant as Assistant Commissioner dated June 23, 1994, was set aside and the case was remanded to the Selection Board for re- examination of the matter mentioned in the order.
2. The precise facts, culminating into the present appeal, are that the appellant was inducted in service of Revenue Department as Naib-Tehsildar on March 6, 1975 and was promoted as Tehsildar on April 27, 1983. The appellant was promoted as Extra-Assistant Commissioner in Grade B-17 vide Notification dated 30-11-1991 since 9-8-1989; whereas the respondent was appointed as Naib- Tehsildar on February 19, 1973 and promoted as Tehsildar on 19-2-1976. In the seniority list of Tehsildars prepared in 199; by the Revenue Department the respondent was shown at Serial No. 13 while the appellant at No. 19. The respondent was promoted as Extra-Assistant Commissioner with effect from 8-2-1989. The petitioner and respondent were both working as Extra-Assistant Commissioner when some posts of Assistant Commissioner fell vacant. Though respondent No.1 was admittedly senior to the appellant but he was not recommended by the Selection Board to be promoted as Assistant Commissioner on the ground that he had no; passed the Higher Standard Departmental Examination. Against the aforesaid order after availing the departmental remedy and lapse of statutory period the respondent filed at appeal before the Service Tribunal which was accepted by the Tribunal vide its order impugned in this appeal.
3. Sardar Rafique Mahmood Khan, the learned counsel for the appellant, vehemently contended that the case of both the appellant and respondent was considered by the Selection Board but respondent was superseded and found unfit to be promoted on the ground that he had not passed the Higher Standard Departmental Examination. According to the learned counsel the passing of Higher Standard Departmental Examination was essential for promotion under the rules prescribed by the Government of Punjab and that those rules also stood adapted in Azad Jammu and Kashmir. In this connection he referred to clause (b) of rule 4(1) and sub--rule (1) of rule 8 of Azad Jammu and Kashmir Management Group (Composition, Recruitment and Promotion) Rules, 1980. The learned counsel also pressed into service the submission that the respondent was found unfit by the relevant Selection Board and as such the order determining the fitness of appellant for promotion as Assistant Commissioner was not appealable in view of second proviso of clause (d) of section 4 of Azad Jammu and Kashmir Civil Servants (Appeal) Rules, 1971, and section 4(b) of the Azad Jammu and Kashmir Service Tribunal Act, 1975. The learned counsel for the appellant on the strength of the aforesaid submissions submitted that the impugned order may be set aside.
4. On the other hand, Mr. M. Tabassum Aftab Alvi, the learned counsel for respondent, controverting the arguments raised by the learned counsel for the appellant maintained that the Selection Board simply superseded the respondent on the ground that he did not pass the Higher Standard Departmental Examination but the passing of such examination was not a legal requirement under the relevant rules. According to the learned counsel under the relevant rules the seniority-cum- fitness was the only criteria for promotion on the post of Assistant Commissioner. Similarly under the rules the essential qualification for promotion on the said post was a graduate from a recognized University. The respondent being senior to appellant by all means and being a law graduate was superseded by the Selection Board on superficial grounds, quite contrary to provisions of relevant rules. The learned counsel also urged that if a person is superseded in violation of the rules and in contravention of the provisions of relevant law, he cannot be debarred from seeking his remedy by way of appeal.
5. After hearing the respective contentions of the learned counsel for the parties and perusal of record made available with care the point that needs resolution by this Court is as to whether the respondent was possessing the requisite qualifications to be promoted as Assistant Commissioner or that the appellant having passed the Higher Standard Examination was better qualified to be promoted as Assistant Commissioner than the respondent. To have a correct perception of the matter it is deemed expedient to refer to rule 4(l)(b) of the Rules called as the Azad Jammu and Kashmir Management Group (Composition, Recruitment and Promotion) Rules, 1980 which reads as under:-- R.
4. Method of recruitment and promotion.--Recruitment and promotion in the service shall be made by the Government in the following manner: -- (i)
(ii)
(b) 40% of the posts of Assistant Commissioner shall be filled in by promotion on the recommendation of Selection Board from Members of Extra-Assistant Commissioner's service on the basis of merit and fitness for higher responsibilities (as Assistant Commissioner in Punjab or promoted from Extra-Assistant Commissioner's service). Similarly rule 8(1) of the aforesaid rules provides as under:-- "8.--(1) No such person shall be confirmed in his cadre unless he successfully completes such training and passes such examination as has been prescribed by the Government of Punjab. All rules on this subject stand adapted in Azad Jammu and Kashmir."
Rule 6 of the afore stated rules stipulates as under:-- "6.--(i) No person shall be appointed to the service unless he is a graduate from a recognized University.
(ii) No person, not already in Government service, shall be appointed to the service unless he produces certificate of character from the Principal Academic Officer of the Academic Institution last attended, and also certificates of character from to other responsible persons not being his relatives who are well-acquainted with his character and antecedents."
6. A combined reading of the aforesaid Management Group Rules provides the qualifications and method of promotion as Assistant Commissioner or in other words for induction into the Management Group. These rules nowhere provide that an Extra-Assistant Commissioner must have been confirmed after having passed the required examination before he could be appointed as Assistant Commissioner. Rule 8 (1) referred above explicitly lays down that no person shall be confirmed in his cadre unless he successfully completes training and passes such examination as has been prescribed by the Government of Punjab. This rule has nothing to do with the appointment or promotion of a person or employee as an Assistant Commissioner. Rule. 6 deals with the qualifications of a person to be appointed as Assistant Commissioner and it is titled as such. Rule 4, sub-rule (1) of the aforesaid rules lays down the method of recruitment to the post of Assistant Commissioner. It is provided in clause (b) that 40% of the posts of Assistant Commissioners shall be filled in by promotion on the recommendation of Selection Board from Members of Extra-Assistant Commissioner's service on the basis of merit and fitness for higher responsibilities. This rule nowhere lays down that a person must be a confirmed Extra-Assistant Commissioner or that he must have qualified all the tests which were required for confirmation as Extra-Assistant Commissioner to become qualified to be an Assistant Commissioner.
7. Our aforesaid view is fully supported by an authority of this Court in a reported case Muhammad Aslam Khilji v. Azad Jammu and Kashmir Government and another (1991 PLC (C.S.) 128). While dealing with the promotion of Extra-Assistant Commissioners as Assistant Commissioners it was observed at page 5 in the following manner:-- "The Service Tribunal has adopted reasoning that since the appellant had not passed the Higher Standard Examination prescribed for confirmation as Assistant Commissioner he was not eligible for being promoted as Assistant Commissioner. While doing so the Tribunal relied on the provisions of Extra-Assistant Commissioner's Rules rather than the Management Group Rules. The later set of rules provide the qualifications and method of promotion as Assistant Commissioner or in other words for induction into the Management Group. It is nowhere provided in these rules that an Extra- Assistant Commissioner must have been confirmed after having passed the required examination before he could be appointed as Assistant Commissioner. Rule 6 of the Management Group Rules laid down that no such person shall be appointed on post, unless he is a graduate from a recognised University. This rule is titled 'Qualifications' and the only to qualifications mentioned for induction into the Group are being a graduate and production of a certificate of character. The other relevant rule is rule 4, sub-rule (1) of this rule which lays down the manner of recruitment to the post of Assistant Commissioner. It is provided in clause (b) that 40 % of the posts of Assistant Commissioner shall be filled in by promotion on the recommendation of Selection Board from Members of Extra-Assistant Commissioner's service on the basis of merit and fitness for higher responsibilities. It is nowhere laid down that a person must be a confirmed Extra-Assistant Commissioner or that he must have qualified all the tests which were required for confirmation as Extra-Assistant Commissioner to become qualified to be an Assistant Commissioner."
8. The above-referred authority of this Court on all fours covers the case of parties before us. We, therefore, find nothing in the rules which tray lead us to the conclusion that respondent was not eligible for promotion as Assistant Commissioner on the relevant date as held by the Selection Board. The Selection Board travelled beyond its jurisdiction to hold that respondent was not eligible to be promoted as Assistant Commissioner without having passed the Higher Standard Examination which was not a requirement of the law or the relevant rules; so the contention raised by the learned counsel for the appellant is hereby repelled. It may also be stated that eligibility, merit and fitness are entirely different matters but the fact that respondent was eligible to become Assistant Commissioner did create a right in him to be considered by the Selection Board but the Selection Board in flagrant violation of the relevant rules committed a wrong to respondent and proceeded under the assumption that he was not eligible for promotion because he had not passed the Higher Standard Examination. In our considered view it was rightly held by the Service Tribunal that under the relevant law and rules the respondent was not under any obligation to pass the Higher Standard Examination as the same was not a legal requirement.
9. As regards the next submission of the learned counsel for the appellant that the matter of determining seniority of the contesting Government employees being purely within the jurisdiction of Selection Board could not have been substituted by the Service Tribunal or even by this Court, indeed, generally speaking is correct but once it is established from the record or the attending circumstances that a particular civil servant was deprived of his right of promotion on account of artificial or flimsy grounds or in derogation to the relevant rules or law the proviso of section 4 of the Service Tribunals Act cannot stand in his way. Being confronted with somewhat similar situation in a case reported as Munir Hussain Shah v. Secretary, Forest Department, Azad Government of the State of Jammu and Kashmir (1993 PLC (C. S.) 1153) it was held by this Court at page 1160:-- "It is correct that if under relevant rules, the fitness of a relevant civil servant for the promotion is decided one way or the other that cannot be made basis of appeal to the Service Tribunal.
Similarly in case of selection post, the view in matter of promotion arrived at by the relevant Selection Board cannot be substituted by the Service Tribunal or this Court but if a promotion is made in derogation to the rules, on the subject, it cannot be said that no appeal is competent to the Service Tribunal because the question of promotion is hit by the Bar stipulated in the proviso to section 4 of Service Tribunals Act. It is correct that a person cannot seek promotion as of right but if he has minimum qualification of promotion, he has right to be considered and get the matter of promotion decided according to the rules; if he is not considered or if he is considered but his promotion is refused in derogation to the rules laid down in that regard, then it cannot be said that he cannot come up in appeal despite the fact that the rules on the subject have been violated."
10. As said earlier the Selection Board in flagrant violation of rules governing the subject superseded the respondent merely on the basis of his D not passing the Higher Standard Examination thus it committed a grave illegality which was rightly cured by the Service Tribunal and we uphold the view taken by the Service Tribunal.
11. The unreported case relied upon and referred by the learned counsel for the appellant titled "Sarwar Hussain Shah v. Azad Government and others" (Civil Appeal No. 10 of 1996, decided by this Court on May, 8, 1996) (1997 PLC (C.S.) 302) has no relevancy to the facts of the instant case. In that case the appellant had not been superseded in derogation to the relevant rules governing the subject.
12. In the light of what has been stated above finding no force in this appeal it is hereby dismissed with costs.