1. SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal, by leave, has been directed, against the judgment of the Service Tribunal, dated 14-6-1998, whereby the appeal filed by Raja Muhamamd Nisar, respondent No,1, was accepted and orders dated 17-9-1990 and 18-10-1995 were set aside; it was further directed that junior most of the appellants Nos.4 to 6 may be reverted and in his place Raja Muhammad Nisar, respondent No,1, be promoted as Assitant Conservator Forests.
2. The brief facts giving rise to the present appeal are that appellants, herein, were promoted as Assistant Conservators Forests in B-17 on the recommendations of concerned Selection Board of Government Notification, dated 17-9-1990. According to the case of Raja Muhammad Nisar, respondent No, 1, he preferred a review petition to the Government on 7-10-1990 against the order of promotion, dated 17-9-1990. One Muhammad Yousaf was appointed as Special Assistant to the Prime Minister for hearing and disposal of the appeals, review petitions, etc. vide Government Notification, dated 23-12-1992. Consequently, the review petition filed by respondent No,1 was also made over by the Prime Minister to Mr. Muhammad Yousaf for hearing and disposal under law, who after hearing the parties decided the said review petition in favour of respondent No,1 on 3-10-1994 in terms that respondent No,1 be promoted as Assistant Conservator Forests and transmitted the file to the Government for issuing the order of his promotion. However, the file for the issuance of the order remained pending in the Prime Minister's Secretariat when an amending notification was issued on 7-2-1995 by Government whereby the notification, dated 23-12-1992 pertaining to the powers of said Muhammad Yousaf was amended and it was provided that in future Special Assistant would be competent only to make recommendations to the Government after hearing the appeals and reviews etc. which would issue the appropriate orders in the case In other words, after amending Notification the Special Assistant who previously had powers to finally decide the disputes of the civil servants, could only make recommendations to the Government. Thereafter, a note was written by the Additional Secretary to the Prime Minister in the file of Raja Muhammad Nisar, respondent, that the review petition decided by the Special Assistant on 3-10-1994 was time- barred and thus entailed dismissal. The Prime Minister agreed to the said note and consequently, the review petition filed by respondent No,1 was dismissed as being time-barred vide Government Notification, dated 18-10-1995. The respondent No,1, preferred an appeal before the Service Tribunal, which was accepted and the order of dismissal, dated 18-10-1995 was set aside, the Service Tribunal further directed the Government to promote respondent No,1 as Assistant Conservator Forests after demoting the junior most of the appellants Nos.4 to 6, herein. It is against the aforesaid judgment of the Service Tribunal that present appeal, by leave, has been preferred to this Court.
3. Before dealing with the merits of the case it may be pointed out that appellants Nos.1 to 3, herein, were not impleaded as party before the Service Tribunal. Thus, their case is distinguishable from the case of the appellants Nos.4 to 6 who were party in the appeal before the Service Tribunal. It has been conceded by the learned counsel for the contesting parties that as the Appellants Nos.1 to 3 were not party before the Service Tribunal, they would not be adversely affected by the impugned order of Service Tribunal or the order of this Court passed in the present appeal. Thus, we hold that the.said appellants not being party before the Service Tribunal, would not be adversely affected by the impugned judmgnet of the Service Tribunal or by the verdict given by this Court in the present appeal.
4. The first question which was subject of controversy at Bar before this Court was as to whether the review petition filed by Raja Muhammad Nisar before the Government was time-barred. It may be stated here that according to the case of Raja Muhammad Nisar, he preferred review petition to the Government against the order of 17-9-1990 on 7-10-1990, within the prescribed period of limitation of thirty days but the said review petition was misplaced somewhere and. thus, he made another application to the Government on 24-12-1993 alone with Photostat copy of the original review petition, dated 7-10-1990. Contrary to the stand of the respondents, the appellants contended that in fact no review petition was filed by respondent No,1 on 7-10-1990 and his subsequent application, dated 13-12-1990 alleging that he had earlier filed a review petition was a device to overcome the hurdle of limitation. According to the appellants, in fact the review petition which was filed by respondent No,1, on 23-12-1993, was hopelessly time-barred. The Service Tribunal after appreciating relevant material has come to the conclusion that in fact respondent No,1 did file the review petition on 7-10-1990, within period of limitation, which was misplaced. The learned counsel for the appellants Mr. Ghulam Mustafa Mughal, has contended that findings of the Service Tribunal are contrary to the record, and thus, are not sustainable. He has argued that onus to prove that any review petition was filed by respondent No,1 on 7-10-1990 was on him but he failed to discharge the same. The learned counsel has maintained that had he filed any review petition on 7-10-1990, he would have mentioned in his memorandum of appeal filed before the Service Tribunal that his earlier review petition was misplaced and thus he had to make the subsequent application on 24-12-1993. The learned counsel has contended that absence of any such averment in the memorandum of appeal filed before the Service Tribunal is a sufficient proof of the fact that no such review petition was filed by the respondent. The learned counsel has also argued that Muhammad Yousaf, the Special Assistant to the Prime Minister, while deciding the review petition filed by respondent No,1 did not specifically condone the delay' in filing the review petition; he has submitted that in fact the order of Special Assistant is altogether silent on the question of limitation and in absence of specific order that delay was condoned, it cannot be assumed that it was condoned merely because the Special Assistant disposed of the review petition filed by the respondent on merits. The learned counsel has referred to a case reported as Chairman, P.I.A.C. v. Mr. Nasim Malik PLD 1990 SC 990, wherein it has been held that as the departmental appeal was filed after more than two years instead of 30 days, the same was time- barred. It was further observed that in absence of specific order by the departmental authority that delay was condoned, the Service Tribunal was not justified in presuming that the departmental authority would be deemed to have condoned the delay.
5. In reply, Mr. M. Tabasco Aftab Alvi, the learned counsel for respondent No,1, has controverted the arguments advanced on behalf of the appellants. The learned counsel has argued that averment in the memorandum of appeal by the respondent, herein, that he had filed a review petition to the Government on 7-10-1990 was admitted in the written statements filed by the appellants' 4 to 6 and by the Government. Thus, he has contended that the appellants cannot be permitted to build up a case different from one set-up in their pleading. The learned counsel has maintained that factum of filing of review petition on 7-10-1990 not only stands proved by other material but also by the affidavit filed by the respondent coupled with the admissions made by the appellants and the Government. The learned counsel has relied upon the following authorities in support of his contention that the point not raised in the pleading, cannot be permitted to raise at the subsequent stage or the fact admitted cannot be resiled without the amendment of the pleading filed by the party.
6. In case reported as Muhammad Siddique Farooqi v. Azad Jammu and Kashmir Government (PLD 1994 SC (AJ&K) 3), it was observed that a point which has not been raised by any party in the pleadings, could not be gone into suo motu by the Court.
7. In case reported as Azad Government v. Qamar-uz-Zaman Khan Niazi 1993 SCR 9, it was observed that no party is allowed to set-up a case different from one which such party has setup in the pleadings. It was further observed that the question of fact cannot be raised for the first time before this Court. Identical view was expressed in cases reported as Muhammad Hussain v. Abdul Majid (1993 SCR 319) and Muhammad Amin v. Muhammad Yunus (1993 SCR 340).
8. We have given due consideration to the matter. After going to the averments made in para. 5 of memorandum of appeal filed in the Service Tribunal and para. 5 of the written statements, we have no doubt that concerned appellants have admitted in their written statements the factum of filing of review petition on 7-10-1990. It is well-settled principle of law that facts admitted need not to be proved. Thus, the contention of the learned counsel that onus to prove filing of the review petition on 7-10-1990 was on respondent No,1, but he did not discharge the same is not sustainable. A party cannot be permitted to resale from its case set up in the pleading until and unless it amends its pleading or resiles from its earlier stand by any other procedure recognized by law. In the instant case the appellants cannot be heard saying after their admission that in fact no review petition was filed by the respondent on 7-10-1990. Therefore, the contentions of the learned counsel for the appellants that review petition filed by respondent No, 1. was time-barred-or that the question of delay was not averted to by the Special Assistant or same has been illegally decided by the Service Tribunal have no force and are hereby repelled.
9. The next question, which falls for determination, is as to whether the Service Tribunal has incorrectly set aside the order, dated 18-10-1995, whereby the review petition filed by respondent No,1 was dismissed by the Prime Minister as being time-barred. It has already been pointed but that Special Assistant decided the review petition in favour of respondent No,1 on 3-10-1994, about nine months before the amending Notification, dated 7-2-1995; the said Notification is prospective in operation and thus it would not affect the decision of the review petition by the Special Assistant, which was made about nine months prior to the withdrawal of the powers of Special Assistant to decide the appeals etc., finally and he was empowered only to make recommendations. It may also be stated that when powers are delegated to a certain authority to do an act, the delegator is not legally competent to exercise such powers until and unless the same are taken back and assumed by the delegator. In the instant case, the power to decide the review petitions on 3-10-1994, solely vested in Special Assistant by virtue of Notification, dated 23-12-1992; the review petition was decided by him before curtailment of the powers vide Notification, dated 7-2-1995. Besides, in view of the aforesaid admission in the written statements and other material, the review petition was filed within time. Hence, the finding of the Service Tribunal that the order, dated 18-10-1995 whereby the review petition filed by respondent No,1, was dismissed by the Prime Minister as being time-barred is without lawful authority and is not sustainable, does not suffer from any legal infirmity.
10. Next, it has been contended by Mr. Ghulam Mustafa Mughal, the learned counsel for the appellants, that appeal before the Service Tribunal was incompetent because the concerned Selection Board superseded Raja Muhammad Nisar, respondent No,1, in its meetings held in November, 1989, and January 1990 and in pursuance of the said recommendations the impugned order, dated 7-10- 1990 was passed by the Government. The learned counsel has contended that if the fitness or otherwise of a civil servant for promotion has been determined by the concerned Selection Board, an appeal is not competent in view of the bar contained in section 4 of the Service Tribunal Act. The learned counsel has further argued that the supersessions of the respondent No,1, was made in view of his adverse Annual Confidential Reports, particularly for the years 1985-86 and 1988. The learned counsel has argued that the said adveise Annual Confidential Reports were not challenged by the said respondent before the consideration of promotion of the parties by the Selection Board and, thus, the said reports held ground when Selection Board made its final recommendations in January 1990 and at the time when promotion orders of appellants, dated 7-2-1990 were issued by the Government. According to the learned counsel the Selection Board was not a 'departmental' authority' within the meaning of section 4 of Service Tribunals Act and thus it could not substitute its view for one contained in the Annual Confidential Reports of the respondent; similarly, the Service Tribunal was also not legally competent to substitute its opinion for one recorded in the Annual Confidential Reports of the respondent. The learned counsel went on to argue that in absence of an order of the concerned departmental authority about the incorrectness or otherwise of the Annual Confidential Reports, an appeal to the Service Tribunal was not competent challenging the correctness of the Annual Confidential Reports. The learned counsel contended that it was necessary for Raja Muhammad Nisar, respondent No,1, to challenge the said adverse Annual Confidential Reports before departmental authority and get the matter settled before the consideration of the matter of promotion of the parties by the Selection Board but this was not done.
11. The learned counsel for the appellants has cited the following authorities in support of his contention:-- In case reported as Muhammad Anis v. Abdul Haseeb (PLD 1994 SC 539), in an appeal arising from a judgment passed by the High Court in writ jurisdiction, while discussing the scope of section 4(1) of the Service Tribunals Act, 1973 and Article 212 of the Constitution of Pakistan it was observed that the question of eligibility is different from the question of fitness for promotion as envisaged under the Service Tribunals Act. It was observed that the Service Tribunal has the jurisdiction to pass an order regarding the terms and conditions of service of a civil servant but it cannot substitute its view in case of promotion of a civil servant on the question of his fitness. The question of 'eligibility' relates to the terms and conditions of service whereas the question of 'fitness' is subjective evaluation on the basis of objective criteria and, thus, the opinion of the competent Authority in the matter of promotion cannot be disturbed by the Service Tribunal.
12. In case reported as Sarwar Hussain Shah v. Azad Government of the State of Jammu and Kashmir (1997 PLC (C.S.) 302), it was observed that as the respondent was found fit for promotion whereas the appellant was found unfit by the Departmental Selection Committee, the view of the Selection Committee could not be substituted by the Service Tribunal because it has no such jurisdiction. It was observed that the substitution of its view by the Service Tribunal in case of promotion for the view formed by the concerned Selection Authority is not permissible under law.
13. In case reported as Muhammad Bashir Khan v. Inspector-General of Police (1993 PLC (C.S.) 986), it was observed that bar to file an appeal to the Service Tribunal envisaged under section 4(1), Proviso (b) of the Service Tribunals Act, would be applicable only in those cases where fitness of concerned person for promotion is determined; the bar has no application to the cases where the fitness of concerned civil servant has not been examined by the concerned authority; in such cases, the appeal would be competent to the Service Tribunal, despite the aforesaid bar.
14. In case reported as Islamic Republic of Pakistan v. Israrul Haq (PLD 1981 SC 531), it was observed that criteria for promotion against the selection post is different from promotion to a non-selection post which is to be filled in on the basis of seniority-cum-fitness. The comparative assessment of eligible person for promotion in latter class of officers is always made starting from senior most officer. It was further observed that as the appellant claimed promotion on the basis of seniority- cum-fitness, his promotion would remain deferred tilll he earns an Annual Confidential Report relevant for determining his fitness as D.I.-G. or till he gets such outstanding competence of ability for his selection as D.I.-G.; it was further observed that fitness for promotion to the higher grade is within the competence of the concerned Selection Board and it can be assessed on other grounds without considering the Confidential Report for the past five years.
15. In case reported as Khizar Mahmood Qureshi v. Azad Jammu and Kashmir Government (1992 SCR 223), it has been held that the seniority list prepared under rules after inviting objections by the competent Authority is not revisable by the authority which prepared the list or by the Selection Board.
16. In case reported as Muhammad Aslam Khilji v. Azad Government of State of Jammu and Kashmir (1991 PLC (C.S.) 128), Muhammad Aslam Khilji, appellant, preferred an appeal against the judgment of the Service Tribunal that he was' eligible for promotion as Assistant Commissioner but despite that his case was not considered by the concerned Selection Board and instead respondent was promoted. After discussing the merits of the case, it was held that as Muhammad Aslam Khilji was eligible for promotion and, thus, he had a vested right to be considered by the concerned Selection Board but this was not done. Therefore, accepting his appeal, instead of remanding the case to the concerned Selection Board to reconsider the case of promotion of contesting parties, it was observed that as Muhammad Aslam Khilji, had already been promoted as Assistant Commissioner after the recommendations of the Selection Board, it was not necessary to direct the Selection Board to reconsider the case of parties afresh and make recommendations. While dealing with the peculiar circumstances of the case, it was observed as under:-- "No doubt 'eligiblity' and 'merit and fitness' are entirely different matters. The fact that the appellant was eligible to become Assistant Commissioner did not necessarily mean that he must have been promoted as such. But the fact that he was eligible did create a right in him to be considered by the Selection Board. By denying this right a wrong was done to him and it should have been undone by the Service Tribunal which it has failed to do on the assumption that he was not eligible for promotion because he had not passed the examination under reference.
17. In order to undo the wrong to Muhammad Aslam Khilji the normal course for us would have been to set aside the promotion order of respondent Abdul Haq Abbasi and to order that the Selection Board may reconsider the matter with Muhammad Aslam Khilji as one of the candidates but in the peculiar circumstances of the case, we are not adopting this course. The order of Abdul Haq Abbasi's promotion against which Muhammad Aslam Khilji appealed to the Service Tribunal was passed on 28-2-1994. In the intervening period of six years many few developments have taken place. Muhammad Aslam Khilji was promoted as Assistant Commissioner and both of them have now moved into Deputy Commissioner's grade. Since Muhammad Aslam Khilji has already been found fit for promotion, there is now no question that this exercise may be gone through again.
18. After giving anxious thought to this aspect of the matter we have reached the conclusion that the order which can meet the ends of justice is that Muhammad Aslam Khilji would be deemed to have been promoted from 28-2-1994 in place of Abdul Haq Abbasi. In this respect our attention has been drawn to a similar course adopted by Federal Service Tribunal in Haq Nawaz v. Secretary to Government of Pakistan. Ministry of Defence and 2 others (1984 PLC (C.S.) 8) and we are satisfied that the course adopted in that case was just and proper."
19. In the case reported as Government of N.-W.F.P. v. Buner Khan (1985 SCMR 1158), there was fixed quota for filling in certain vacancies by direct recruitment and by promotion in the higher grade; a joint seniority list of the promotees was in existence. It was observed that the seniority of the promotes is to be considered from the date when the vacancy in their respective quota became available. Thus, it was directed that joint seniority list of the officers directly recruited and those appointed by promotion may be issued according to the relevant rules in the light of the aforesaid observations.
20. In an unreported case entitled Sardar Muhammad Taj Khan v. Syed Ali Ashraf Shah Gillani (Civil Appeal No, 55 of 1992 decided on 4-8-1993), it has been observed that it is well-settled principle of law that if a civil servant has not been considered for promotion and his fitness has not been determined, an appeal before the Service Tribunal lies and such a person can get relief from the Service Tribunal if he shows that the impugned order before the Tribunal was bad in law. However, if the fitness for promotion has been determined, no appeal lies therefrom. After discussing the merits of the case it was found that as the Secretary Revenue had considered the case of Ali Ashraf Shah, appellant, for promotion and found him unfit; the appeal before the Service Tribunal was not competent. Hence the judgment of the Service Tribunal was set aside by this Court.
21. In reply, the learned counsel for respondent No,1, has controverted the argument advanced by the learned counsel for the appellants. He has argued that under instruction 36 of the instructions known as Instructions About the Annual Confidential Reports, dated 30-1-1998 the report containing adverse remarks should be communicated to the civil servant concerned along with a D.O. letter signed by the concerned civil servant in acknowledgment of the report; under Instruction No,37, such report should be communicated at least within one month from the date of the completion of the same. If the aforesaid instructions are not complied with, such adverse remarks are to be ignored while considering the question of the promotion of the concerned civil servants under instruction 40 of the instruction 40 is reproduced below:-- "40. If the report containing adverse remarks is not communicated or if communicated there is no record of its having been communicated and acknowledgment by the civil servant concerned, the adverse remarks contained therein should be ignored for purpose of promotion and premature retirement. But in the C.R. dossier of the persons responsible for failure or delay in communication of such a report adverse entry should be recorded, which would be in addition to the disciplinary action required to be taken under para. 37 and which has to take its course." (Underlining is our).
22. It was incumbent upon the authority concerned to convey the adverse Annual Confidential Reports to respondent No,1 within thirty days but as has been held by the Service Tribunal, the Annual Confidential Reports pertaining to the years 1985 and 1986 were communicated to respondent No,1 in the year 1990, after the case of promotion of the parties had already been sent to the Selection Board. The learned counsel has argued that at the time of transmitting the relevant papers to the Selection Board, the Annual Confidential Reports for the years 1985 and 1986 were not in existence and same were written sometime afterwards and, thus, were conveyed to the respondent in the year 1990. Thereafter, the respondent No,1, promptly challenged the same before the competent Authority, who set at naught the adverse remarks vide its order, dated 23-9-1993, whereas recommendations made by the Selection Board had already been made in January 1990. Similarly, the Annual Confidential Report pertaining to the year 1988 was conveyed to respondent No,1 in 1989 which was also challenged before the competent authority and was sub judice before the concerned authority when the said recommendations superseding respondent No,1 were made in January, 1990. The learned counsel has argued that evidently the respondent was superseded on incorrect Annual Confidential Reports, as the same were set aside by the competent Authority vide its order dated 23-2-1993; the advise remarks should have been otherwise ignored under Instruction No,40. The learned counsel has maintained that no fault could be attributed to the respondent because he promptly challenged the said Annual Confidential Reports when the same were conveyed to him. The learned counsel further submitted that the respondent was M.A. in Political Science vide in the relevant papers transmitted to the Selection Board, he was described.
23. Only as F.Sc. pass. Thus, according to the learned counsel for the respondent, the recommendations whereby respondent No,1 was superseded were based on incorrect data as is evident from the relevant minutes of the meeting held by the Selection Board. It was further contended by the learned counsel for the respondent that the arguments that appeal to the Service Tribunal was not competent because there was no order of any departmental authority regarding Annual Confidential Reports of respondent was fallacious, because the Government, on the basis of recommendations of Selection Board, passed the impugned order, dated 7-10-1990.
24. Thus, the aforesaid Government order when challenged as being illegal on the basis of incorrect data before the Service Tribunals how it could be argued that the appeal was incompetent; specially so when the Government is also a 'departmental authority' in view of the provisions contained in section 4 of the Service Tribunals Act. The learned counsel further contended that the embargo to appeal contained in section 4 of Service Tribunals Act is not applicable where a civil servant has not been considered for promotion or if he was considered but he was denied promotion in contravention of relevant rules or on the basis of patently incorrect working papers, as in the present case. The learned counsel has referred the following authorities in support of his contention:-- In an unreported case entitled Ch. Qurban Hussain v. Sardar Abdul Latif Khan Chughtai (Civil Appeal No,16 of 1996, decided on 8-6-1996) (1997 PLC (C.S.) 385), it was observed that it is correct that a person cannot seek promotion as of right but if he has minimum qualification necessary for promotion, he has right to be considered and get the matter of his promotion decided according to rules. Thus, it was observed that if a civil servant eligible for promotion is not considered by the concerned authority or if he was considered but his promotion was refused in derogation of the rules laid down in that regard, then it cannot be said that he cannot come up in appeal in view of embargo contained in section 4 of the Service Tribunals Act.
25. In another unreported case entitled Munir Hussain Shah v. Secretary, Forests Department and another (Civil . Appeal No,8 of 1993 decided on 16-5-1993) = (1993 PLC (C.S.) 1153), the concerned civil servant who was an employee of Forests Department as Baildar/watcher and was admittedly senior to respondent but was not considered for promotion as Forest Guard. The promotion under the relevant rules was to be made on the basis of seniority-cum-fitness but the concerned authority expressed the view that respondent was 'more qualified' than the appellant. However, both of them were eligible for promotion under the relevant rules. It was observed that the appeal was not barred under section 4 of the Service Tribunals Act because the appellant was not declared as unfit for promotion, rather his promotion was refused on a ground which was extraneous to the conditions necessary for promotion as laid down in the relevant rules. Thus, it was held that the appeal was not barred and the relevant orders passed by the Secretary Forests and the Service Tribunal were set aside and that of Chief Conservator of Forests was restored.
26. We have given due consideration to the arguments raised at Bar. It is not controverted when the matter was transmitted for consideration for the recommendations of the Selection Board, the Annual Confidential Reports pertaining to the years 1985 and 1986 had not been conveyed to respondent No,1; only Annual Confidential Reports pertaining to the year 1988 was conveyed in the year 1989 which was challenged before the competent Authority and the matter had not been finalized when case of the promotion of the parties was sent to Selection Board. The Annual Confidential Reports of respondent No,1 pertaining to the years 1985 and 1986 were conveyed to the respondent in 1990 and he promptly challenged the same before the competent Authority and same were set aside. Similarly, in the relevant papers transmitted to the Selection Board, the respondent has shown to be F.Sc. pass, whereas he is M.A. Political Science. The relevant Annual Confidential Reports were not conveyed to the respondent within the period of thirty days as envisaged under relevant instructions; thus, the adverse remarks could not be read against respondent No,l. It is also preposterous to argue that the respondent did not challenge the same before the consideration of the matter of his promotion by the Selection Board. As has been stated above that the said Annual Confidential Reports were conveyed to the respondent after the matter had already been sent to the Selection Board. It is evident from the survey of case-law made above that the embargo to appeal contained in section 4 of Service Tribunals Act is applicable only if a candidate for promotion has been considered and question of his fitness has been determined according to law. Even if a civil servant is considered for promotion but he is denied his promotion in violation of law or on the basis of incorrect facts i,e, in the present case incorrect Annual Confidential Reports and matter with regard to the academic qualifications of the respondent, it cannot be said that as the case of the concerned civil servant pertains to his fitness for promotion, he has no right of appeal. In this view of the matter, we are of the opinion that as the supersessions of the respondent No,1 by the Selection Board, was based on incorrect facts, it cannot be said that said recommendations of the Selection Board or for that matter the impugned Government order, dated 7-10-1990 is sacrosanct and cannot be challenged in appeal. Thus, we repel the contention of the learned counsel for the appellants that appeal before the Service Tribunal was incompetent.
27. The next question which falls for determination is as to what relief the appellants Nos.4 to 6 are entitled. We agree with the learned counsel for the appellants that Service Tribunal could not itself order the promotion of respondent No,1 from 7-10-1990, the date from which the promotion of the other appellants became effective, because the question of fitness or otherwise of respondent No,1 on 7-10-1990 was still to be determined by the Selection Board, despite the fact that respondent No,1 was also subsequently promoted as Assistant Conservator Forests when his appeal was pending in the Service Tribunal. As has already been pointed out, the crucial question of determining the inter se seniority of the appellants Nos.4 to 6 and respondent No,1 depends on the question of fitness or otherwise of respondent No,1 for promotion when the Selection Board recommended the appellants for promotion and superseded respondent No, 1 .
28. In the light of what has been stated above, we partly accept the appeal and amend the order of the Service Tribunal in terms that the Selection Board shall reconsider the question as to whether respondent No,1 was fit for promotion as Assistant Conservator Forests on 14-1-1990, when the matter regarding the promotion of the parties was finally finalized and the recommendations were made to the Government. After reconsideration of matter of promotion of respondent No,1, if it is found by the Selection Board that in view of the corrections of the aforesaid Annoal Confidential Reports and academic qualification of respondent No,1, he was fit for promotion on 14-1-1990, he would be senior to appellants Nos.4 to 6; in such an eventuality respondent No,1 would also be entitled to other benefits which may flow from his promotion order from 17-9-1990.