' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave of the Court, is directed against the order passed by the Service Tribunal on 8-8-1998, whereby the appeal filed by respondent No.1 was accepted.
2. The brief facts, giving rise to the present appeal, are that the appellant was appointed as Agriculture Officer on 3-9-1978. Respondent No.1, Ashfaque Ahmed, was also appointed through the same notification. The appellant was promoted as Horticulture Assistant in BPS-17 vide notification, dated 7-6-1994 ignoring Ashfaque Ahmed, respondent No.1 . The case of appellant alongwith respondent Ashfaque Ahmed, and one Qazi Zia-ur-Rehtman was sent to the Selection Board on 13- 9-1990 by the Director Agriculture. All the aforesaid three officers were considered by the Selection Board and the appellant found fit for promotion was promoted vide notification, dated 7-6-1994 and respondent Ashfaque Ahmed was thus, superseded. The respondent made a representation befog. The Government against the promotion order of appellant but the sank was rejected on 20- 8-1995. An appeal filed by the respondent before the Service Tribunal was accepted vide Order, dated 8-8-1998 and in place of appellant, respondent No.1 was ordered to be promoted. It is the aforesaid order of the Service Tribunal which has been assailed through the present appeal.
3. It was vehemently contended by Mr. Ghulam Mustafa Mughal, the learned counsel for the appellant, that the impugned order of the Service Tribunal was liable to be set aside on the simple ground that the representation against the order, dated 7-6-1994 and appeal against both the orders, dated 7-6-1994 and 20-8-1995 was hopelessly time-barred and the same should have been dismissed in view of the dictum laid down by this Court in Shabbir Ahmed's case reported as (1997 PLC (C.S.) 478). The learned counsel contended that appeal before the Service Tribunal was incompetent in view of section 4 of the Service Tribunals Act as well as the Appeal Rules, 1991. The respondent, according to the learned counsel, was considered by the Selection Board and he was superseded on account of adverse A.C.Rs. Against him. The Service Tribunal, according to the learned counsel for the appellant, had no jurisdiction to substitute its own findings while ignoring those of Selection Board. The learned counsel pressed into service the submission that the matter of promotion being within competence and domain of Selection Board could not have been interfered with by the Service Tribunal. The learned counsel also contended that mere seniority was not the only requirement for further promotion as seniority-cum-fitness was the yardstick to be looked into by the Selection Board and the Selection Board in its wisdom rightly passed the promotion order of the appellant.
4. On the other hand controverting the arguments raised by the learned counsel for the appellant Mr. M. Tabassum Aftab Aliv, the learned counsel for respondent No.1, submitted that in accordance with the seniority list respondent No.1 was senior to appellant and was thus, illegally bypassed by the Selection Board by ignoring the relevant rules. The learned counsel strenuously argued that Selection Board in total violation of the relevant rules considered the ACRs of respondent pertaining to years 1985 to 1987 whereas in case of appellant ACRs relating to years 1987 to 1989 were considered. The learned counsel submitted that in the working papers sent by Director Agriculture to Selection Board it was recorded that ACR of respondent Ashfaq Ahmed relating to year 1988 was adverse. Thus, on the basis of the same the Selection Board promoted the appellant, despite the fact that he was junior to the respondent. The learned counsel maintained that the Service Tribunal thus, committed no illegality in promoting the respondent in place of appellant.
5. After hearing the respective contentions of the learned counsel for the parties and perusing the relevant record, it may be stated that both the appellant and respondent Ashfaq Ahmed were appointed on the same date. However, according to seniority list the name of appellant in the said seniority list figures at serial No.15 as against respondent No.1 whose name is at serial No.18. Thus, the appellant is senior to respondent No.1 by all means. However, in our considered view the Selection Board committed a grave error by taking into consideration the ACRs of appellant relating to years 1985 to 1987 whereas the ACRs of respondent pertaining to years 1987 to 1989 were considered. According to instruction 6 of Government Notification, dated 26-12-1992, it was enjoined upon the head of the department to send all the ACRs of the contesting officers to the Selection Board for its, perusal but in the instant case the Selection Board merely relied on the ACRs of appellant from 1985 to 1987 and in case of respondent from 1987 to 1989. Even in Notification, dated 13-5-1986 issued by the Government, Instruction_No.3 provides that head of department should send all the ACRs of concerned contesting officers to the Selection Board for its consideration for the purpose of promotion of contesting officers. It is indeed correct that the Service Tribunal could not substitute its own opinion with that of Selection Board but the Selection Board failed to consider all the ACRs of contesting parties nor the same were sent to it for its consideration. The Selection Board has also failed to take into consideration the fact as to whether one year's ACR of respondent being adverse to him was a sufficient ground by itself to deprive him of promotion. In this view of the matter we have reached the conclusion that the relevant bio-data of the contesting parties was neither produced before the Selection Board nor the same was considered for the purpose of promotion. We, therefore, set aside the selection order of appellant and direct that the matter of promotion of appellant and respondent shall be considered afresh by the Selection Board taking into consideration all the ACRs of the contesting officer. The ACR for year 1988 which is adverse to the credit of respondent shall also be considered by the Selection Board, and it shall give its finding as to how it deprives the respondent from promotion.
6. The preliminary objection raised by Mr. Ghulam Mustafa Mughal the learned counsel for the appellant that appeal before the Service Tribunal filed by respondent was liable to be dismissed as the same was barred by limitation, it may be pointed out that before the Service Tribunal no such objection was raised by the appellant. The respondent in the case before us has moved an application that if at all his appeal before the Service Tribunal was barred by limitation the same may be condoned on the ground that the judgment recorded in case reported as Ch. Muhammad Hussain v. Azad Government of the State of Jammu and Kashmir and others 1997 PLC (C.S.) 1047 was delivered before the counsel was engaged by him in the appeal wherein the relevant observations were recorded at pages 224 and 225 of the report in the following manner:-- "As is evident from the arguments raised at the bar and the authorities cited from Pakistan jurisdiction, the question of limitation indicated above, was not settled, at least, in Azad Kashmir, prior to the dictum of this Court in Shabbir Ahmed's case. It appears that almost all appeals which were filed after the decision of the appellate authority beyond the period of 120 days were deemed to be within time; neither any objection was raised by the opposite party nor this Court or the Service Tribunal took suo motu notice of the fact. Thus, a long standing practice developed in the State that an aggrieved civil servant could come up in appeal within 30 days after the waiting period of 90 days or he might file an appeal within 30 days of the communication of the order passed on an appeal, revision or review. The two cases reported as Ch. Rashid v. Secretary Establishment Division, Islamabad (1995 PLC (C.S.) 527) Haji Kadir Bux v. Province of Sindh 1982 SCMR 582 from Pakistan jurisdiction, relied upon by the learned counsel for the appellant show that the matter with regard to two options for filing an appeal to the Service Tribunal under section 4 of the Service Tribunals Act was not well-settled even in Pakistan. Under these circumstances we have no hesitation in holding that delay in instant case was not due to any negligence, rather it was due to bona fide mistake which resulted due to the judicial pronouncements and which, in term, gave birth to a long standing practice of two options for filing appeal to the Service Tribunal in the State. However, we do not subscribe to the view that the dictum in Shabbir Ahmed's case would not apply to the appeals which were pending in Service Tribunal at the time of judgment of this Court; no authority has been cited at the bar to show that any contrary view was expressed on the point by this Court prior to the judgment in Shabbir Ahmed's case. In other words it was for the first time that the matter was adverted to and decided by this Court in the aforesaid case; the mere fact that previously no objection was raised by a party to the proceedings or no notice was suo motu taken by this Court with regard to the question of limitation, would not imply that any view contrary to one taken in Shabbir Ahmed's case was taken by this Court.----.
' In the light of what has been stated above we are of the view that as delay in filing appeal to the Service Tribunal was occasioned due to bona fide mistake and longstanding practice in the State, it is desirable to condone the delay in filing appeal to the Service Tribunal. Hence the delay is hereby condoned."
Relying on the aforesaid authority of this Court we hereby repel the preliminary objection raised by the learned counsel for the appellant and condone the delay in filing the appeal before the Service Tribunal as the delay in the present case was not intentional but due to judicial pronouncements which gave rise to various complications.
7. In the light of what has been stated above by accepting the appeal we set aside the order of Service Tribunal and the order of Selection and promotion of appellant and direct that the Selection Board shall consider the case of appellant and respondent afresh in light of the observation made by us in this judgment. A copy of this judgment shall be sent to the Selection Board concerned for its guidance. In the circumstances of the case we passed no order as to costs.