MUHAMMAD YUNUS SURAKHVI, J.---This appeal, with the leave of the Court, is directed against an order recorded by the Service Tribunal of Azad Jammu and Kashmir on October 31, 1995, whereby the appeal filed by the appellant herein for his promotion was dismissed.
2. The precise facts forming the background of the present appeal are that the appellant was inducted in the Ministerial Service of Revenue Department as a Junior Clerk on November 17, 1974 and was promoted as Senior Clerk in Grade B-7 on 1st of September, 1990. Sikandar Hayat, respondent No.4, was appointed as Junior Clerk in Grade B-5 on November 23, 1974, and was promoted as senior clerk in Grade B-7 much later than the appellant i.e. On January 11, 1992. It is claimed that seniority list of Senior Clerks was prepared by the Revenue Commissioner on March 8, 1992 wherein the appellant was placed at Serial No. 2 and Sikandar Hayat Khan respondent No.4 at Serial No.3. The Revenue Commissioner, Mirpur Division in violation of relevant Rules and ignoring the seniority of appellant promoted Sikandar Hayat Khan respondent No. 4, as Accountant in Grade B-11 on acting charge basis vide order, dated May 24, 1995. Being dissatisfied with the above order the appellant filed an appeal before the Board of Revenue which was dismissed vide order, dated February 28, 1993. The appellant then preferred an appeal before the Service Tribunal which was also dismissed vide order, dated October 31, 1995 which is the subject of present appeal.
3. Arguing the case on behalf of appellant it was contended by Sardar Rafique Mahmood Khan, the learned counsel for the appellant that the appellant was senior to respondent No.4 not only as a Junior Clerk but also in the senior garde. The seniority list prepared by the Revenue Commissioner bears the testimony to the above fact. It was argued with vehemence that according to the rules known as Ministerial Staff Revenue Department Rules, 1984 (hereinafter to be referred as the Revenue Rules of 1984) a post of Accountant Grade B-11 was to be filled up 50% by initial recruitment and 50% by promotion on the basis of seniority-cum-fitness. The learned counsel maintained that the appellant being senior to respondent No. 4 was fully eligible for promotion i.e Grade B-11 under Revenue Rules, 1984 but the learned Service Tribunal failed to interpret the Rules in its true perspective. According to the learned counsel the Service Tribunal as well as the Selection Committee were persuaded only by the fact that respondent No. 4 was a law graduate and was found fit for promotion whereas no such condition is stipulated under the aforesaid Rules. The Service Tribunal as well as the Selection Committee fell in error in ignoring the seniority of the appellant. According to the learned counsel the findings recorded by the Service Tribunal and the Revenue Board. That appellant was not an aggrieved person and that the fitness for promotion determined by the Selection Committee could not be challenged before the Departmental Authority or Service Tribunal were based on misconception of law and against the Service Rules.
The learned counsel for the appellant in support of his submissions relied on the reported case of this Court titled Munir Hussain Shah v. Secretary, Forests Department, Azad Government of the State of Jammu and Kashmir, Muzaffarabad and another (1993 PLC (C.S.) 1153) and maintained that order of promotion of respondent having been made in violation of rules section 4 of Service Tribunal Act would not stand in the Way of appellant to prefer an appeal before the Service Tribunal.
4. On the other hand it was strenuously contended by Mr. Ghulam Mustafa Mughal, the learned counsel for respondent No.4, that by virtue of mere seniority a civil servant cannot claim to be promoted in the senior grade but it was the seniority-cum-fitness the basic criteria for promotion in the senior grade. The learned counsel for respondent submitted that the case of appellant alongwith respondent No. 4 and one Muhammad Akram was considered by the Selection Committee but out of them only respondent No. 4 was found to be fit for promotion not only on the ground that he was a graduate but also on the basis of experience. The learned counsel pressed into service the submission that appellant was found unfit by the relevant selection committee and as such the order determining the fitness of respondent No. 4 for promotion as Accountant was not appealable in view of second proviso of clause (d) of section 4 of Azad Jammu and Kashmir Civil Servants (Appeal) Rules, 1991 and section 4 (b) of the Azad Jammu and Kashmir Service Tribunal Act, 1975. The learned counsel for respondent maintained that the orders recorded by the Member, Board of Revenue and the Service Tribunal need no interference and as such the appeal may be dismissed.
5. After hearing the respective contentions of the learned counsel for the parties and perusing the record made available with care it may be stated that though the appellant is senior to respondent No. 4 not only as a Junior Clerk but also as a Senior -Clerk but the fact remains that the appellant alongwith respondent No. 4 and one Muhammad Akram who is a senior most were considered by the Selection Committee in its meeting held on April 28, 1992 and respondent No 4 was found fit for promotion out of them, whereas appellant was found unfit for promotion not only on the basis that appellant is under-Matric but also on the ground that respondent No.4 has an experience of accounts as well. So on the basis of fitness the respondent No.4 was promoted as Accountant. We have also perused the impugned order recorded by the Service Tribunal wherein it was held that respondent No. 4 is not only a law graduate but also had an experience of accounts at his credit and, therefore, on the basis of fitness he was promoted as Accountant. The case of Munir Hussain Shah cited by the learned counsel for the appellant has no relevancy or bearing on the case in hand on the ground that in the precedent case it was held at page 1159:-- "It is evident from proviso (b)(i) to section 4 that the fitness or otherwise of a person to be appointed or hold a particular post or to be promoted to a higher post or grade is not appealable meaning thereby that if it has been determined by the competent Authority that a person is not fit to be promoted then such a finding cannot be assailed. In the instant case it has not been held by any of the departmental authorities that the appellant was not fit to be promoted as guard: rather respondent has been held to be entitled to the promotion because in the estimation of the Secretary of the Department he was better qualified and had also undergone some training. In other words the impugned order of promotion of respondent has been made on the basis of better academic qualification as compared to the appellant and not to the basis that the appellant was not fit for promotion. If it is shown that the appellant was also fit for promotion and the order of promotion of respondent was made in violation of the rules, then the proviso to section 4 of the Service Tribunal Act would not stand in the way of the appellant to prefer an appeal before the Service Tribunal. Because as has already been stated the findings of the Departmental Authorities are not that the appellant was unfit for promotion rather the findings are that other person had better qualification for promotion. If it is found that under rules it is appellant who was to be promoted then the order can be challenged in the appeal."
6. In the present appeal the distinct feature of the case is that not only respondent No. 4 was found fit for promotion but at the same the appellant was found unfit for promotion as such the above case relied by the learned counsel for the appellant has no relevancy.
7. Second proviso of clause (d) of Rule 4 of Azad Jammu and Kashmir Civil Servants (Appeal) Rules, 1991, provides as under:-- "Provided further that no appeal or review shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade."
Similarly section 4, clause (b) of Azad Jammu and Kashmir Service Tribunal Act Dostulates:- "No appeal shall lie to a Tribunal against an order or 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 grade."
8. The above provisions make it abundantly clear that if a civil servant is found to be unfit to be promoted and the Departmental Authority determines the fitness of another civil servant to be promoted any appeal or review against the order determining the fitness or otherwise of a person shall not be competent.
9. In the case reported as Federation of Pakistan v. Muhammad Naqi Khan and others (1985 SCM R 2099), the precise question to be resolved-by the Supreme Court of Pakistan was whether the Service Tribunal was competent to grant relief to Muhammad Naqi Khan respondent No. 1, 8 therein in respect of his claim to seniority in service from 26-5-1960 in view of the bar contained in proviso
(c) of subsection (1) of section 4 of the Service Tribunal Act dealing with the proposition it was observed at page 2101 in the following manner:- Obviously the Tribunal failed to apply its mind to the legal objections raised before it in regard to its jurisdiction and the competency of the appeal. By virtue of proviso (c) to subsection (1) of section 4 of the Service Tribunals Act, the jurisdiction of the Tribunal did not extend to an order or decision of a departmental authority made at any the before the 1st July, 1969. The Tribunal therefore, was not competent to interfere with the decision or the effect of such decision taken by the Departmental Authority prior to the said date. Moreover, since under subsection (4) of section 8 of the Civil Servants Act seniority in a post service or cadre to which a civil servant is promoted shall take effect from the date of regular appointment to that post the seniority of the respondent could not be taken back to an earlier date without antedating his regular promotion as a Section Officer.
Thus, the Tribunal could not do as it has no jurisdiction in view of the provision of proviso (b) to section 4(1) of the Service Tribunal Act, to interfere with an order or decision of a departmental authority determining fitness or otherwise of a person to be appointed to or hold a particular post of to be promoted to a higher post or grade."
10. In a reported case Secretary, Government of Sind Education Department and another v. Syed Riyazul Hassan Zaidi (1986 SCM R 64) attending somewhat similar proposition it was opined at page 66 in the following words:- "That a civil servant has no vested right to promotion and prospects of promotion cannot be included in conditions of service was a settled proposition of law even before the enforcement of the Civil Servants Act, 1973. However, the provisions of section 9 of the said Act clearly postulate that promotion to a selection post can be made on the basis of selection on merit and to a non- selection post on the basis of seniority-cum-fitness. On the plain reading of the section the criteria far making promotion to the higher grade implies a decision by the competent Authority according to the individual judgment of such authority. The underlying principle seems to be that seniority alone is not the determining factor for judging the suitability or fitness of civil servant for discharging the functions attaching to a post in the higher grade. An outside forum in the very nature of thing cannot sit in appeal and review the judgment of the competent Authority regarding the fitness for promotion of a civil servant. This seems to be the philosophy underlying the embargo contained in clause (b) of the proviso to section 4 of the Sind Service Tribunals Act, 1973 which provides that no appeal shall lie to the Tribunal against such order of a Departmental Authority for purpose of promotion to higher post or grade. It is not disputed before us that no appeal lies against an order of a Departmental Authority refusing to promote a civil servant."
11. In another case reported as Mian Abdul Malik v. Dr. Sabir Zameer Siddique and 4 others (1991 SCM R 1129). A distinction was drawn between the question of fitness of a civil servant for promotion and the question of eligibility to promotion it was held at page 1130:-- "What is barred from the jurisdiction of the Tribunal is the question of fitness of a civil servant for promotion. The determination of his eligibility is a question on which jurisdiction of the Tribunal has not been barred. The question of eligibility relates primarily to the terms and conditions of service and their applicability -to the civil servant concerned. Fitness introduces an element of subjective evaluation on the basis of objective criteria where substitution for an opinion of the competent Authority is not possible by that of a Tribunal or a Court. It is in this background that the question of fitness or suitability for promotion has always been considered to be exclusively within the jurisdiction of the competent Authority not shared by the Court or Tribunal exercising supervisory jurisdiction in respect of eligibility and qualification."
12. From the survey of the case-law there remains no manner of doubt that an order of the Departmental Authority determining the fitness or otherwise of a civil servant to be promoted to a higher grade is always within the jurisdiction and domain of that authority. A Tribunal or a Court cannot substitute its own view in place of the view of the Departmental Authority. As the question of promotion of respondent No. 4 was determined by the Selection Committee and he was found fit to be promoted as an Accountant whereas the appellant was found unfit to be promoted to a higher grade, the Service Tribunal was right in observing that appeal filed by the appellant was incompetent on account of the embargo contained in section 4(1), clause (b) of Service Tribunals Act and second proviso of clause (d) of Rule 4 of Azad Jammu and Kashmir Civil Servants (Appeals) Rules, 1991.
For the reasons stated above finding no force in this appeal the same is, therefore, dismissed with costs.