' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave of the Court, has been directed against the judgment passed by the Service Tribunal on 28-11-2000, whereby the appeal filed by the appellant herein was dismissed.
2. The necessary facts, giving rise to the present appeal, briefly stated, are that the appellant was inducted in the service of AJ&K Legislative Assembly as Assistant in the year 1976 and with the passage of time was promoted on the basis of service record as Superintendent in B-16 and afterwards he was granted Selection Grade B-17. The appellant was promoted as Liaison Officer in B-17 vide order dated 1-1-1993 and was transferred as Assistant Secretary on 1-4-1993. It may also be stated that the appellant has rendered total service in B-16 and B-17 up to 9-4-1994 as 6 years and 3 months and in B-15 and below 10 years, 8 months and 15 days. The appellant's academic qualification is B.A. LL.B and he was deputed for five months training in Secretariat Training Institute Islamabad and completed the same with success. Respondent No,2, Muhammad Iqbal Chughtai, was serving in the department of Accountant-General as Junior Auditor in B-7. He was transferred to the Assembly Secretariat on deputation in B-13 and his lien was kept in his parent department which was terminated on 18-3-1980 but he was promoted in B-16 despite the fact that his lien in the parent department was terminated on 18-3-1980 with retrospective effect from the date of his induction in the Assembly Secretariat, whereas he was on deputation up till 1980 and he could not have been given retrospective effect.
3. Respondent No,1, Speaker AJ&K Legislative Assembly, ignoring the rules and regulations promoted respondent No,2 as Deputy Secretary B-18 vide order dated 9-4-1994. The appellant tiled a review petition before the Speaker against the order of promotion of said respondent dated 9-4- 1994 but the Speaker with mala fide intention did not decide the same within the statutory period of 90 days. Thus the appellant filed an appeal before the Service Tribunal against the order of promotion of respondent dated 9-4-1994 which was dismissed vide the impugned order dated 28- 11-2000. It is the aforesaid order of the Service Tribunal which is the subject-matter of present appeal.
4. In support of appeal it was vehemently contended by Mr. Farooq Hussain Kashmiri, the learned counsel for the appellant, that the appellant was having better merits than respondent No,2, Muhammad Iqbal Chughtai, for promotion as Deputy Secretary whereas the appellant's academic qualification is B.A. LL.B., while respondent No,2 was simply B.A. And was having no departmental training at his credit. The learned counsel also submitted that in another case the appeal filed by one Muhammad Isahque was rejected by the Speaker Legislative Assembly on the ground that the post of Deputy Secretary was to be filled in on the basis of merits and not on the basis of seniority- cum-fitness but in the present case the appellant's promotion was not made for the reason that he was not having the required length of service. The verdict of selection authority was totally incorrect. If the appellant's service in B-16 and B-17 is counted, he fully becomes eligible to be promoted as a Deputy Secretary. The learned counsel also contended that for promotion to be made as Deputy Secretary the academic qualification was provided as Law Graduate in the previous rules but the Speaker Legislative Assembly with mala fide intentions introduced an amendment in the rules on 7-7-1993, whereby the Academic qualification as Law Graduate was changed into simple graduate just to give undue benefit to respondent No,2 which is a unique precedent of favouritism and nepotism. Thus the appellant also challenged the vires of the amendment. The learned counsel also contended that respondent No,2, Muhammad Iqbal Chughtai, was also not having length of service of five years and is also not a Law Graduate but he was given preference over the appellant on the basis of length of service. The learned counsel thus contended that the impugned order passed by the Service Tribunal being illegal was liable to be set aside.
5. On the other hand Mr. Ghulam Mustafa Mughal, the learned counsel for respondent No,2, controverted the arguments advanced by the learned counsel for the appellant on all the scores.
The learned counsel contended that the appellant's case was considered by the Selection Committee/I3oard but his length of service as Assistant Secretary was about one year as such he did not fulfil the qualification of length of service of five years. The learned counsel also contended that the appellant could have challenged the length of service of respondent No,2 provided he himself had been eligible to be promoted as a Deputy Secretary. The learned counsel also pressed into service the submission that the appellant alongwith respondent No,2 and some others was duly considered by the Selection Committee and in its opinion respondent No,2 was found fit and more deserving to be promoted as Deputy Secretary and the appellant after due consideration was not found to be fit by the Selection Committee. Thus, the appellant having been considered and not found fit to be promoted as Deputy Secretary could not challenge the proceedings of Selection Committee by way of appeal. In this regard he placed reliance on section 4(b) of Azad Jammu and Kashmir Service Tribunals Act. It was also contended by the learned counsel for the respondent that the appellant's length of service as Assistant Secretary was only for about a year and he being himself not eligible to be promoted could not challenge the length of service of respondent No,2 which was four and a half years. The learned counsel contended that the Selection Committee while promoting respondent No,2 took into consideration the principle of selection on merit, the education qualification, the performance of the said civil servants, the length of service, the service record and on the basis of aforesaid overall circumstances, respondent No,2 was found fit to be promoted as Deputy Secretary by the Selection Committee.
The learned counsel also contended that the contention raised by the learned counsel for the appellant that the rules were amended in order to give undue benefit to respondent No,2, as such the said act is mala fide, is without any substance as no material was brought on record to substantiate the aforesaid allegation. The amendment effected on 7-7-1993 was not challenged by the appellant in time but only the promotion order of respondent No,2 under notification dated 25-8-1994, was challenged in appeal wherein the amendment was challenged in a collateral proceeding. The amendment of rules dated 7-7-1993 was not challenged independently by the appellant as such the Service Tribunal rightly observed that the said amendment was not challenged in time. The 'learned counsel in support of his contention placed reliance on Sarwar Hussain Shah v. Azad Government and others 1997 PLC (C.S.) 302 and Syed Shaukat Hussain Gillani v. Adbul Rehman Abbasi and others 1992 PLC (C.S.) 438 and 1992 SCMR 369.
6. After giving our due consideration to the arguments advanced at the Bar and the perusal of the record carefully, it may be stated that the case of the appellant alongwith respondent No,2 and some others was considered by the Selection Committee vide its meeting dated 6-4-1994, wherein four persons namely Muhammad Ishaque, Muhammad Iqbal Chughtai, Muhammad Nasim Khan and Muhammad Fayyaz, Khan, were considered by the said Committee and respondent No,2, Muhammad Iqbal Chughtai, was found fit to be promoted as Deputy Secretary, whereas the other three persons, mentioned above, after due consideration were not found to be fit for promotion as Deputy Secretary. The above fact shows it beyond any manner of doubt that the appellant having been considered by the Selection Committee was not found fit to be promoted as Deputy Secretary. The relevant rules which govern the promotion on the post of Deputy Secretary are appended with the file of the Service Tribunal wherein the qualification as per column 5 is graduate and the promotion is to be made on the basis of selection on merit from amongst the Assistant Secretaries, Translation Officers, and Estate Officers B-17 with at least five years service as such.
Since the appellant's length of service was only a year nor he was a Translation Officer or Estate Officer, therefore, he was rightly dropped for the promotion. The above stated rules are statutory rules and in presence of these rules the general rules, as contended by the learned counsel for the appellant, that the entire length of service spent in Grades B-16 and B-17 should have been considered, have no application.
7. The contention raised by the learned counsel for the respondent that the appellant having been considered by the Selection Committee and found unfit by it, the same order of the Selection Committee was not appealable in view of second proviso of clause (d) of rule 4 of the Azad Jammu and Kashmir Civil Servants (Appeal) Rules, 1991 and section 4(b) of the Azad Jammu and Kashmir Service Tribunals Act, 1975, has a substance. Second proviso of clause (d) rule 4 of the 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(b) of Azad Jammu and Kashmir Service Tribunals Act, 1975 postulates as follows:-- "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."
The above provisions make it abundantly clear that if a civil servant is found unfit to be promoted and the departmental authority/Selection Committee 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. In a case reported as Secretary, Government of Sindh, Education Department and another v. Syed Riaz-ul-Hassan Zaidi 1986 SCMR 64 attending somewhat similar proposition it was opened at page 66 in the following manner:-- "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 for 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 Sindh Service Tribunals Act, 1973, which provides that no appeal shall lie to the Tribunal against such order of a departmental authority for the 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."
' In a case reported as Sarwar Hussain Shah v. Azad Government and others 1997 PLC (C.S.) 302 it was observed by this Court as follows:-- "From the survey of the case-law there remains no manner of doubt that an order of 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 view of the departmental authority."
Since the question of promotion of respondent No,2 was determined by the Selection Committee and he' was found fit to be promoted as Deputy Secretary, whereas the appellant was found unfit to be promoted to a higher grade, the Service Tribunal was right in dismissing the appeal filed by the appellant on account of the embargo contained in section 4(b) of the Azad Jammu and Kashmir Service Tribunals Act and second proviso of clause (d) of rule 4 of the Civil Servants (Appeal) Rules, 1991.
8. The learned counsel for the appellant, as stated earlier, emphasized on the point that the amendment in the relevant statutory rules was made on 7-7-1993, wherein the qualification as law graduate was deleted and in its place the qualification as graduate was substituted. This was done just to give undue benefit to respondent No,2 with mala fide intents and purpose. The Service Tribunals has observed that the vires of amended statutory rules dated 7-7-1993 were not challenged by the appellant before any forum. However, the promotion order of respondent dated 25-8-1994 was challenged before the Service Tribunal wherein it was also alleged that the amendment introduced in the statutory rules on 7-7-1993 was a mala fide act on the part of the Speaker, respondent No, 1 . The learned counsel for the appellant could not cite any authority in support, of the contention that if the vires of rules are not challenged within time and the same are challenged in a collateral proceeding, the rules can be declared as null and void. On the other hand. Mr. Ghulam Mustafa Mughal, the learned counsel for respondent No,2, has relied upon an, authority of this Court titled Kh. Ghulam Muhammad v. Azad Government and another 2001 PLC (C.S.) 321 wherein it was observed as follows:-- "It is evident from the case-law cited by the learned counsel for the parties that vires of departmental rules can be gone into by the Service Tribunal only if the rules have been interpreted to the disadvantage of a civil servant adversely affecting the terms and conditions of his service."
' In the aforesaid authority reliance has been placed on the cases titled Falak Sher Khan v. Mukhtar Ahmed PLD 1989 SC 262, Dr. Muhammad Tahir Achakzai v. Government of Balochistan 1999 PLC (C,S.) 1360 and Pakistan Diploma Engineers Federation v. Federation of Pakistan 1994 PLC (C. S.)
1105.
9. In the light of what has been stated above, finding no force in this appeal, the same, therefore, stands dismissed with costs.