1. BASHARAT AHMAD SHAIKH, J.---The appellant is an employee of the Board of Intermediate and Secondary Education, Mirpur. At the relevant time he was holding the post of Assistant (B-11) from where he could be promoted as Superintendent (B-16). On 16th of July, 1996 three posts of Superintendent (B-16) were filled in on the recommendations of Departmental Selection Committee. Two posts were allocated for promotion and one post was reserved for selection from within the office on the basis of merit and qualifications. Ghulam Hussain Mir and Arshad Ahmad Khan were promoted against the two posts meant for promotion while Muhammad Nawaz was promoted against the quota reserved for selection. Ghulam Hussain Mir was at No,1 in the seniority list of Assistants while Arshad Ahmad Khan was at No,3. The appellant was at No,2. About the appellant the following remarks were given:-- "His three years A.C.Rs, are average and service record is also not good. His promotion is unanimously deferred."
2. On 16th of July, 1996 Chairman of the Board issued a show-cause notice to the appellant wherein he stated that on 16th of July, 1996 a letter was received from Haji Muhammad Younas Azam, correspondent of daily Jang at Mirpur, in which he asked for the promotion of Muhammad Nazir Chaudhry to B-16. He wrote that injustice had been done to him previously and again this time there was apprehension of injustice. Notice went on to say that office matters were of confidential nature and, as was notified from time to time, the employees were required not to discuss these matters outside the office. Despite that getting recommendations from the journalists and even otherwise using of blackmailing tactics was not appropriate and was also a violation of service rules. It was further stated in the notice that the Chairman summoned the appellant to the office and asked what injustice had been done to him about which he was raising hue and cry in the town but the appellant told the Chairman that people in the office were expressing sympathies with him. It was further stated that a Committee was seized with the promotion matters and was working impartially and honestly, and that no decision had till then been taken. He was asked to explain as to who were the persons who were spreading disinformation in the office and were, thus, spoiling the office discipline. He was also asked to explain as to why he behaved rudely with the Chairman. In reply to this notice the appellant submitted his explanation which was not found to be satisfactory and in an order addressed to the appellant the Chairman recorded the following three observations against him:-- "(a) You are guilty of narrating confidential matters to outside people, particularly journalists;
(b) The language of the explanation submitted by you was impolite and against the office decorum; and
(c) Your conduct has caused breach of good working."
3. However, in the end the Chairman said that he was adopting lenient view and he only warned the appellant to be careful in future. This was done on 28th July, 1996.
4. The order by which the promotion of the appellant was deferred had already been issued on 16th July, 1996. Thereupon, the appellant filed an "appeal" on 17th July, 1996 against the order by which his promotion had been deferred. On 4th September, 1996 Secretary of the Board informed the appellant that as a consequence of the appeal filed by him on 17th July, 1996 the appellant was given a hearing by the Selection Board which re-examined the record and reached the conclusion that the previous decision was correct. Referring to a prayer made by the appellant that the Selection Committee was partial and, therefore, it should be reconstituted, the appellant was informed that the Chairman had not agreed with this submission and the previous decision was kept intact. Consequently the appeal was dismissed.
5. On 29th September, 1996, the appellant filed a writ petition in the High Court seeking the quashment of the orders passed on 16th July, 1996 and 4th September, 1996. It was submitted by him that the appellant was senior to Arshad Ahmad Khan and Muhammad Nawaz and the Selection Committee wrongly and without any basis reported against the appellant. It was further submitted that the order had been passed to penalize and to deprive the appellant his right of promotion without any justified reason or cause. He further stated that he had no concern with the letter written by Haji Muhammad Younas Azam. He also claimed that the proceedings taken against him were illegal and in derogation of his rights. It may be pointed out that Ghulam Hussain Mir was senior to the appellant and his promotion was not challenged. A learned Judge in the High Court dismissed the writ petition. It was observed that the order of promotion was passed by a competent Authority and the appellant had failed to point out violation of any rule or regulation so that writ petition could be exercised in his favour. It was observed that under section 25(a) of the K.S.R. Volume II the disputed promotion was to be made on grounds of merit and ability while seniority was to be considered only if merit and ability were approximately equal. It was observed that appellant was senior to Arshad Ahmad Khan but his A.C.Rs, attached with the written statement were adverse and in the service book there was a red entry as well as some warnings issued by the competent Authority. It was also observed that promotion was not a vested right as was held by Supreme Court of Pakistan in Falak Sher Khan and another v. Mukhtar Ahmed and others (PLD 1989 SC 262)
6. Before adverting to the other points needing adjudication it seems proper to point out that the functionaries of the Board pleaded before the High Court that seniority was only to be considered when merit and ability are approximately equal. This point has been upheld by the learned Judge in the High Court by reference to section 25(a) of the K.S.R., but the relevant law on the subject has not been correctly applied. Rule 25(a) of the Kashmir Civil Service Rules (K.S.R., Vol. II) has ceased to be operative since many years and the matters of promotion are now governed by Azad Jammu and Kashmir Civil Servants Act and the rules made thereunder. Thus, the learned Judge fell in error in deciding the case in light of Kashmir Civil Service Rules (K.S.R., Vol. II).
7. Leaving that aspect aside we notice that rule 25(a) has not been properly interpreted. Rule 25(a) is as follows:-- "25. (a) All promotions shall be made by the appointing authority.
(i) Promotions to a service or class or to a selection category or grade in such service or class shall be made on grounds of merit and ability and shall be subject to the passing of any tests that Government may prescribe in this behalf, seniority being considered only where the merit and ability are approximately equal.
(ii) All other promotions shall be made in accordance with seniority and subject to any test or special qualifications prescribed by Government 'unless:--
(i) the promotion of a member has been withheld as a penalty, or
(ii) a member is given special promotion for conspicuous merit and ability.
(b) When the date by which ...
8. Clause (i) of rule 25(a) reproduced above, stipulates that promotion is of two kinds. First category is promotion to a service or class or to a selection category or grade which is to be made on grounds of merit and ability and-not on the basis of seniority. The other category is mentioned in clause (ii) which lays down that all other promotions will be made in accordance with seniority subject to any test or special qualifications except in cases in which promotion has been withheld as a penalty. Under the Civil Service Rules it was always necessary before making a promotion to find out whether the case tell under clause (i) or clause (ii) reproduced above. In cases falling under clause (ii) the senior person was to be promoted on his turn except when his promotion had been withheld as a penalty. In the present case the High Court did not find out whether the disputed promotions fell in clause (i) or clause (ii). As will be presently discussed, the disputed post in fact fell under clause (ii) and promotion to it was to be made on the basis of seniority-cum- fitness.
9. Rule 25(a) of the Kashmir Civil Service Rules has now been replaced by section 8 of the Azad Jammu and Kashmir Civil Servants Act, it runs as follows:-- "8. Promotion.---(l) A civil servant possessing such minimum qualification as may be prescribed shall be eligible for promotion to a post, for the time being, reserved under the rules for departmental promotion in any higher grade of the service or cadre to which he belongs.
(2) A post referred to in subsection (1) may either be a selection post or a non-selection post to which promotion shall be made as trray be prescribed:--
(a) in the case of a selection post, on the basis of selection on merit, and
(b) in the case of non-selection post, on the basis of seniority-cum-fitness."
10. The section reproduced above is continuity of the categorisation of posts visualised in rule 25(a) of the Kashmir Civil Service Rules. Section 8, like rule 25(a) of the Kashmir Service Rules, also lays down that promotion posts will comprise of two categories, namely, selection posts and non- selection posts. Clause (a) lays down that the promotion to a selection post will be made on the basis of selection on merit, it makes no reference to seniority. Clause (b) lays down that promotion of a non-selection post will be made on the basis of seniority-cum-fitness. The term "seniority- cum-fitness", broadly speaking, connotes that a senior person will be eligible for promotion if he is otherwise fit to hold that post. Further, elucidation may be found in part II of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. Rules 9 and 10 are relevant for the present discussion and may be usefully reproduced as under:-- "Rule 9. (1) Appointments by promotion or transfer to posts in various grades shall be made on the recommendations of the appropriate Committee or Board.
(2) Promotion including pro forma promotion shall not be claimed as a matter of right by any civil servant.
11. Rule 10. Only such persons as possess the qualifications and meet the conditions laid down for the purpose of promotion or transfer to a post shall be considered by the selection authority."
12. The Board of Intermediate and Secondary Education was set up under an Act of the Assembly Rules and Regulations have been framed to provide for the proper functioning of the Board". They are all consolidated in a book known as "calendar of the Board. In rule 9 of Chapter 45 it is laid down that the financial and civil service rules of the Government shall be applicable in those cases where the Board Calendar is silent. It follows that section 8 and rules 9 and 10, reproduced above, are applicable to employees of the Board.
13. Now we come to the disputed promotions. In Chapter 20 mode of promotion to the post of Superintendent is as follows:-- "(VII) Superintendents 80% by promotion and 20% by selection from within the Office on the basis of merit and qualification as mentioned in Rule 20.1 (VII)."
14. The rule, reproduced above, clearly creates two categories. Eighty per cent. posts are reserved for p-:-motion while twenty per cent. for selection on the basis of merit. Out of the three persons promoted by the Board Muhammad Nawaz was promoted against the post meant for selection on the basis of merit while Ghulam Hussain Mir and Arshad Ahmad Khan were promoted against eighty per cent. quota fixed for promotion. It follows that the posts against which Ghulam Hussain Mir and Arshad Ahmad Khan were promoted were not selection posts but were promotion posts.
15. Contrarily the High Court held that the posts against which Ghulam Hussain Mir and Arshad Ahmad Khan were promoted were selection posts in which seniority was not to be considered. The correct position is that, according to entry 7 in Chapter XX of the Calendar, these posts were meant for promotion while the third post was meant for selection. Two posts under reference fell in category
(ii) of rule 25(a) of the (Repealed) Kashmir Civil Service Rules and clause (b) of section 8(2) of the Civil Servants Act. During the pendency of the writ petition Arshad Ahmad Khan died and the post again became vacant. It was stated before the High Court by the learned counsel for the Board that Muhammad Nazir Chaudhry would also be considered while filling up the post but that did nor satisfy him and he requested that the petition may be decided on merits. We have expressed the view that the High Court wrongly held that the promotion to the post against which Arshad Ahmad Khan was promoted was to be made on the basis of merit and ability and seniority was not to be considered. The correct legal position, as already stated, is that the post against which Arshad Ahmad Khan was promoted was a non-selection post against which seniority-cum-fitness was to be kept in view.
16. Thus, the view taken by the High Court that the disputed post was to be filled in by selection on merit without regard to seniority is not correct and must be vacated. Due to the death of Arshad Ahmad Khan the post is again vacant. The promotion to the post is to be made on the basis of the recommendations of the Selection Board as laid down in rule 9 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 read with rule 9 of Chapter 45 of the Board's Calendar, both provisions having already been reproduced. Ordinarily upon the death of Arshad Ahmad Khan it was not necessary to decide the case on merits because promotion had become non-existent but the High Court, upon the insistence of the appellant, decided the legal points involved in the case. The principles applicable to the case laid down by the High Court have been set aside in this judgment. Now the Board will follow the principles laid down in this judgment and fill in the post previously held by Arshad Ahmad Khan on the basis of seniority-cum-fitness.
17. This is a job of the Selection Committee. This Court cannot at this stage enter into an exercise whether the appellant is eligible for promotion on the basis of seniority-cum-fitness. This Court cannot pre-empt the functions of the Selection Committee. Therefore, the matter is left to be decided by Selection Committee and the competent Authority.
18. Before parting, we have to point out that some cases were cited by Ch. Muhammad Azam Khan, the learned counsel for the Board of Intermediate and Secondary Education, in which it has been laid down that promotion cannot be claimed as a matter of right. There is a specific provision to that effect in sub-rule (2) of rule 9 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 and in the corresponding rules in Pakistan but we want to emphasise that it does not mean that a person can be deprived of promotion in an illegal manner or by violating principles of law or on the basis of mala fides.
19. The appeal is, therefore, accepted and the judgment of the High Court is vacated. The Board of Intermediate and Secondary Education shall fill up the post previously held by Arshad Ahmad Khan in light of the principles laid down in this judgment. However, there will be no order as to costs.