' BASHARAT AHMAD SHAIKH, J.---In this service appeal the appellant challenges the order passed by the Service Tribunal by which appeal filed by him before the Service Tribunal was dismissed. The appeal had been filed to seek vacation of Government Notification issued on 17th May, 1995 by which respondent No,4 was promoted from the post of Planning Officer B-17 to B-18 post of Deputy Director (Planning, Development and Evaluation) in the Department of Animal Husbandry. The promotion was ordered on the recommendation of the Azad Jammu and Kashmir Selection Board No,2 while dismissing the appeal filed by the appellant the Service Tribunal has held that the appellant as well as respondent No,4 are employed in the Department of Animal Husbandry but they belong to different cadres, and that the rules relating to the post of Deputy Director (Planning.
Development and Evaluation) framed on 28th February, 1994 do not lay down that the holder of the post of Poultry Development Officer, the post previously held by the appellant, will be qualified for promotion to the post in dispute. The Tribunal has held that in this view of the matter the appellant had no locus standi to challenge the promotion of respondent No,4.
2. The dispute between the appellant and respondent No,4 about the promotion as Deputy Director (Planning, Development and Evaluation) has been brought to this Court for the second time, Therefore, before examining the validity of the conclusions reached by the Service Tribunal it is necessary to take into consideration the facts of the previous round. Respondent No,4 Maqsood Ahmad Malik, was holding the post of Planning Officer B-17 in the Animal Husbandry Department, when this post was upgraded to the post of Deputy Director (Planning, Development and Evaluation) to which may refer as the disputed post, on 18th November, 1992. This post was in addition to the post of Deputy Directors which already existed in the department. At that point of time Khawaja Mushtaq Ahmad, the appellant was Poultry Development Officer (B-17) in the same department. In the Government Order by which the post of Planning Officer was upgraded and re- designated it was stated that the new post will be regulated by Up-gradation Rules, 1984. On the next day respondent No,4 was "posted" against the abovementioned post in his own pay and scale.
At that time no rules were framed for appointment, promotion etc. Of the disputed post. The order of "posting of respondent No,4 was challenged by the appellant filing appeal before the Service Tribunal but it was dismissed. The Tribunal took the view that the appellant could not challenge posting of respondent No,4 as Deputy Director because it was only a temporary arrangement. The Tribunal held that Khawaja Mushtaq Ahmad could challenge the appointment of Maqsood Ahmad Malik only if and when he was regularly promoted as Deputy Director. The Service Tribunal also held that the appellant was at number 16 in the seniority list of Veterinary Doctors and if Veterinary Doctors were to be considered for promotion to the disputed post only the senior most Doctor could be considered for promotion; thus, the appellant had no locus standi in the matter. The appellant was granted leave to appeal to challenge the judgment of the Service Tribunal, which was passed on 30th April, 1994. This Court vacated the order of the Service Tribunal in its judgment pronounced on 20th November, 1994 and passed the following order:-- "As an upshot of the above the appeal is accepted and Government Order No, Admin/A-5(6)/S.O.- V/92, dated 19th November 1992 is set aside with the result that respondent No,1 shall cease to hold office as Deputy Director (Planning, Development and Evaluation). The Government may fill up the post in accordance with law, whether temporarily or on permanent basis."
3. When the previous round started rules for the disputed post had not been framed and the judgment of this Court deals with the situation in which there were no rules in existence, and respective claims of the two contesting civil servants were considered in light of that situation. In the previous judgment the posting of respondent No,4 in his own pay and scale was vacated on the ground that it was illegal to appoint a civil servant to a post carrying higher grade in his own pay and scale. On this point reliance was placed on two earlier judgments of this Court reported as Mubashar-ul-Haq v. Azad Government of the State of Jammu and Kashmir and 2 others (PLD 1990 SC (AJ&K) 66) and Muhammad Rashid Chaudhry v. Chairman AKLASC and others (1995 SCR 73). It was also observed in the previous judgment that although the two contesting civil servants belonged to different cadres, the appellant was senior to respondent No,4 and, apart from his professional degree as a Veterinary Doctor, also held a degree of M.A. (Economic), the degree also held by respondent No,4 and had also served in Planning and Development Department of the Government for more than three years. Keeping these factors in view it was held by this Court that in absence of rules relating to promotion to the disputed post the appellant was entitled to be considered for promotion to the disputed post.
4. After the previous judgment respondent No,4 was sent back to his original post. In the previous judgment the Government was directed to fill up the post in accordance with law. For doing so method of recruitment, academic qualification etc. Had to be laid down. It was done by inserting item No,2-A in the Animal Husbandry Department Establishment Service Rules, 1992. The newly created post of Deputy Director (Planning, Development & Evaluation), mentioned at serial No,2-A, is also described as part of functional unit "Technical". For promotion to this post the following conditions have been laid down:-- "(ii) 75% by promotion on the basis of seniority-cum-fitness from amongst the Planning Officer/Statistical Officer B-17 having 5 years' service as such. If none is available then by promotion on basis of seniority-cum-fitness from amongst Assistant Director (H-Q)Assistant Director Districts)/Assistant Director (A.I)/Assistant Disease Investigation Officer/Live Stock Officer/Sheep Development Officer with 5 years service as such."
5. In light of this provision, the matter was referred to the Selection Board No,2 which recommended the promotion of respondent No,4 who was then promoted. The promotion order of respondent No,4 was challenged by the appellant by filing appeal before the Service Tribunal. A perusal of the memorandum of appeal filed before the Service Tribunal shows that most of the grounds raised in it are based on the previous judgment of this Court. We have already explained that previous judgment was pronounced in respect of a temporary promotion when the relevant rules had not been framed. It was also based on the principle that a civil servant cannot legally be appointed to hold a higher post in his own pay and scale. This principle already held the field as a settled law when that judgment was pronounced. Now respondent No,4 has been regularly promoted in light of newly framed rules and validity or otherwise of this promotion can only be resolved in light of those rules.
6. Respondent No,4 was Planning Officer/Statistical Officer B-17 and it is not denied that he had to his credit more than five years service as such he was qualified for promotion to the disputed post.
Entry No,2-A lays down that if Planning Officer/Statistical Officer B-17 having five years' service as such is available he will have the right to be promoted to the disputed post. If no such civil servant is available then the post has to be filled up by promotion from amongst holders of other posts mentioned therein. Since he falls in the first category, respondent No,4 was the only choice available for promotion to the disputed post because entry No,2-A clearly lays down that in his presence no other person could be considered for promotion. The appellant, therefore, had no claim for being considered for promotion to the disputed post. He is a Veterinary Doctor and also holds the degree of M.A (Economics) and L.L.B. There is no doubt that attainment of these degrees in variety of fields is a creditable performance of the appellant. He also has served in the Planning and Development Department of the Government for three years. On the other hand' respondent No,4 is just M.A (Economics) and had five years' experience as a Planning Officer. In length of service appellant is senior by years. Academically also the appellant is far superior to respondent No,4 and the experience which the appellant has gained in the Planning and Development Department also adds to his suitability for the work of planning, development and evaluation, but the promotion to the disputed post is governed by a legal provision which the Courts are under legal obligation to follow. The Service Tribunal had, therefore, no option but to follow rules framed by the Government under section 23 of the Civil Servants Act.
7. We may, however, add that service rules are not sacrosanct and can be judicially scrutinized. It has been held by this Court in Ghiasul Haq and others v. Azad Government of the State of Jammu and Kashmir etc. [PLD 1980 SC (AJ&K) 5) that the vires of a law can be challenged before the Service Tribunal. It is held in that case that order about the terms and conditions of a civil servant can be vacated by ignoring or striking down a law if it is found to be invalid by the Service Tribunal.
Respondent No,4 holds a Master's degree in Economics. He was appointed as Statistical Officer B-17 on 9th March, 1982. When Azad Jammu and Kashmir Animal Husbandry Department Service Rules, were framed in 1984, the post of Statistical Officer B-17 was in "Non Technical functional unit of the Department. When the Rules of 1984 were replaced by Azad Jammu and Kashmir Animal Husbandry Department Establishment Service Rules, 1992, the post held by respondent No,4 was re-designated as Planning Officer but it also was kept in the "Non-Technical" unit of the department. In entry No,2-A the disputed post of Deputy Director is shown to be a technical post but the qualifications have been laid down in such a way that the service rendered by respondent No,4 as a non-teachincal officer has been prescribed as a qualification for promotion to the technical post of Deputy Director. It is also significant that if the disputed post has to be filled up by initial recruitment only a Ph.D. Or M.Sc. In veterinary science with three years experience can be considered while for promotion a non-technical Planning Officer holding Masters Degree in Economic is the first choice. It is clear that a non-technical hand has been promoted for a technical post. After gong through the memorandum of appeals filed in the Service Tribunal and this court we find that. The appellant has not urged any ground relating to the validity or vires of the related rules. Therefore, after hearing the arguments in the case we passed the following order on 6th of January, 1998:-- "While examining the case for judgment we have felt that there is an aspect which has remained unattended and, therefore, we should hear the learned counsel for the parties on that aspect of the case.
' Respondent No,4 has been appointed as Deputy Director (Planning, Development and Evaluation) in light of entry No,2-A of the Azad Jammu and Kashmir Animal Husbandry Department Rules, 1992 (as amended). A perusal of the contents of entry No, 2-A has raised a question whether the contents of entry No, 2-A as a whole are legally valid or not. At the present we have not formed even a tentative opinion on the point but would like to hear the learned counsel for the parties on this aspect of the case. Therefore, notices shall issue to the learned counsel for the parties, alongwith a copy each of thigh order, to appear in the Court on 22nd instant to take further orders."
8. Subsequently the parties appeared and were given time to prepare the case but when the case came up for arguments on the point of validity or otherwise of the legal provision under reference on 15th of May, 1998 the appellant stated before the Court that he did not want to challenge the rules. Instead he raised another point that the respondent was not holding the post of Planning Officer when he was promoted to the disputed post. Since the appellant does not challenge the validity of the relevant legal provision the judgment of the Service Tribunal has to be upheld.
9. The point urged by the appellant that on 15th May, 1998 respondent No,4 was not holding the post of Planning Officer when he was promoted and, therefore, could not be considered for promotion is an altogether a new point which was not raised even in the concise statement.
Therefore, he could not be allowed to raise this point for the first time during re-hearing of the case on a limited point. It may be pointed out that the plea runs counter to the impugned promotion order of respondent No,4 passed on 17th May, 1995 in which Maqsood Ahmad Malik is shown as Planning Officer (B-17).
10. The next point urged in support of the appeal is that at one stage the Selection Board rejected the working paper sent by the Department of Animal Husbandry for filing up the disputed post on the ground that the rules were at variance with the corresponding rules with the Punjab and that the matter was being examined by the Services Department. The Selection Board wrote to the Government that new working paper may be prepared in light of the proposed changes in the rules, It was contended by the learned counsel for the appellant that the letter signed by the Secretary of Selection Board No,2 and addressed to the Secretary Animal Husbandry Department, Annexure "M" in the paper book, was sent on 2nd of May, 1995. It was contended by the learned counsel for the appellant that this letter was ignored and the Selection Board subsequently approved the promotion of respondent No,4. In our view this argument has no force because even if the letter was written by the Secretary of the Board in accordance with the decision of the Selection Board, of which there was no proof on the record, the Selection Board itself changed its position by subsequently approving respondent No,4 for promotion. We also note that it was not the function of the Selection Board to decide whether the rules needed to be reconsidered or re- enacted. It was for the concerned department of the Government to form such an opinion. The rule for the disputed post was framed by the Government which did not repeal or modify it and the Selection Board had no option but to follow it.
' As a result the appeal stands dismissed.