RAJA BASHIR AHMAD KHAN (CHAIRMAN). ---This appeal is directed against Notification No. Admin/A-1(2)/Part II/V/93, dated 21-12-1993.
2. The facts of this appeal are that the case of the appellant was sent to the Selection Board for promotion as Additional Secretary alongwith respondents Nos. 2 and 3. The appellant was selected and recommended for promotion to the post of Additional Secretary on the same day of Selection Board. The respondent Government partially gave effect to the recommendations of the Selection Board and promoted respondents Nos. 2 and 3 giving retrospective effect to the promotions from 22-2-1992. The appellant was denied seniority with effect from 22-2-1992 and was given promotion from 21-12-1993. The Government has thus discriminately refused to give effect to the recommendations of the Selection-Board.
3. The appellant has challenged the Notification dated 21-12-1993 on the following grounds:-- Grounds
(A) That the promotion of the appellant was due with effect from 22-2-1992, as accorded to the respondents Nos. 2 and 3 for simple reason that the appellant was also selected and recommended for promotion by Selection Board alongwith the respondents Nos.2 and 3 on the same day and date. As three posts of Additional Secretaries were also available according to Secretariat quota at that the when the appellant was comparatively better in merit and from all other aspects vis-a-vis to the respondents Nos.2 and 3 as stated in para.(2) of Memo of Appeal.
Therefore, the respondent-- Government has no legal, moral and any other technical justification or reason to treat discriminately to the appellant i.e. By picking and choosing, rewarding to one and making discrimination with the other Keeping in view the provisions of subsection (15) of section 4 of the Interim Constitution Act, 1974 which provides that "all State subjects are equal before law and are entitled to equal protection of law". In service matter, subsection (17) of section 4 of the Interim Constitution Act, 1974 provides that No State subject otherwise qualified for appointment in the service of Azad Jammu and Kashmir shall be discriminated". In the given circumstances the impugned Notification is liable to be amended accordingly.
(B) That the impugned Notification dated 21-12-1993 is also liable to be amended for the reason that the same is mala fide which has been issued by colourable exercise of powers by the respondent --Government because the respondent No.1 in spite of the fact that the post of Additional Secretary in question was also available since long for the Secretariat group deprived the appellant from due date of his promotion so that the respondents Nos. 2 and 3 become senior to the appellant as well as for giving financial loss to the appellant intentionally for ulterior motives.
(C) That the impugned Notification dated 21-12-1993, is also liable to be amended because the same has been issued in disregard to the recommendations of the Selection Board as the Selection Board, did not make any difference between the respondents Nos. 2 and 3 and the appellant in respect of fixation of their seniority and the date of promotion."
4. We have heard the counsel for the parties and have also gone through the record.
5. The only contention made before us by the counsel for the appellant is that the. Appellant, respondents Nos. 2 and 3 were recommended for promotion to the post of Additional Secretary on the same date by the Selection Board. The respondents have been given retrospective promotion in pursuance to the recommendations of the Selection Board whereas the appellant has been denied his entitlement of retrospective promotion discriminately and has thus caused grievance to the appellant. On the point of discrimination the counsel for appellant relied on 1994 SCR 402, 1983 SCM R 34 and PLD 1993 SC (Pak.) 375.
6. We have carefully gone through the Notification No.Admin/A-1(2)/ Section V/93, dated 2-11-1993 whereby respondents Nos. 2 and 3 were given retrospective promotion and also the impugned Notification through which the appellant was promoted as Additional Secretary. The perusal of these Notifications reveals that respondents Nos. 2 and 3 were already working against the post of Additional Secretary in their own pay and scale whereas appellant was not working against the post of Additional Secretary. The argument that the case of the appellant was dealt with discrimination is not available to the appellant on the simple ground that the respondents were working against the post of Additional Secretaries B-19, although in their own pay and scales and after the recommendations of the Selection Board they were given the benefits of the post of Additional Secretary. The appellant at the relevant the was working as Deputy Secretary and he could only be given benefits of the post of Additional Secretary from the date when he was promoted.
7. We have gone through the authorities relied on by the counsel for appellant. The facts of the reported case are entirely different from the facts of the instant case. In the reported cases the question of granting Secretariat Allowance was involved and it was resolved that if the allowance was given to one set of employees the same allowance can be given to the group of the employees performing the duties of similar nature. In the instant case the respondents were already holding the post of Additional Secretary whereas the appellant was working as Deputy Secretary. The question of discrimination in the present case, therefore, does not arise.
8. In the light of the above the appellant has failed to make out the case for interference by this Tribunal. We, therefore, dismiss this appeal with no order as to costs.