' BASHARAT AHMAD SHAIKH, J.---The High Court has accepted a writ petition filed by respondent Muhammad Hafizullah and has declared that the promotions of appellant Raja Muhammad Asghar from Grade-16 to 19 were illegal. It has also been declared that appellant Raja Muhammad Asgahr Khan is junior to respondent Muhammad Hafizullah. The High Court has also held that Muhammad Hafizullah, "who has been found entitled to be promoted in Grade-19 by the competent authority shall be entitled to claim this grade from 13th December, 1990, the date when contesting respondent No,5 was given this grade." Respondent No,5 before the High Court was the present appellant Raja Muhammad Asghar Khan.
2. Raja Muhammad Asghar Khan has filed this appeal with leave of the Court. In the writ petition filed by him on 30th December, 1998, Muhammad Hafizullah stated that he was inducted in the Azad Jammu and Kashmir Logging and Sawmills Corporation, hereinafter called the Corporation, as Assistant Engineer (Mechanical) in NPS-17 on 5th September, 1976 on the recommendation of the Selection Authority. He stated that Raja Muhammad Asghar Khan was promoted/appointed as Sales Officer in NPS-17 on 5th July, 1979 with effect from 1st July, 1979. Before 1st July 1979 Raja Muhammad Asghar Khan was Assistant Forests Manager. It was further averred that seniority list of officers of the Corporation was published on 18th September 1986 in which Muhammad Hafizullah's name was placed at Serial No,2 while the name of Raja Muhammad Asghar Khan was placed at Serial No,3. This list was upheld by this Court in a case titled Muhammad Rashid Chaudhry v.
Chairman AKLASC and others (1993 PLC (C.S.) 1201). Thereafter Raja Muhammad Asghar Khan, who was not even regularly inducted/promoted against a post in BPS-17, moved an application to the General Manager of the Corporation that he may be promoted against a post carrying NPS-18.
Subsequently the application was recommended by the General Manager and ultimately the Board approved the promotion of Raja Muhammad Asghar Khan as Deputy Forests Manager on 12th July, 1996 but Muhammad Hafizullah and another Senior Officer of the Corporation were not considered for promotion. The promotion of Raja Muhammad Asghar Khan was challenged by Muhammad Hafizullah by filing appeal before the Competent Authority. Subsequently Muhammad Hafizullah was promoted to NPS-18 on 24th May, 1989 w,e,f, 1st July, 1985 which made him senior to Raja Muhammad Asghar Khan who did not challenge the said promotion.
3. After stating the above noted facts it was averred in the writ petition that on 7th October, .1990 Chairman and Managing Director appointed by transfer Raja Muhammad Asghar Khan to a post carrying NPS-19. It was stated that this was done by ignoring Muhammad Hafizullah and another Officer of the Corporation. Thereafter Muhammad Hafizullah and another Officer, Muhammad Rashid Chaudhry, filed a writ petition in the High Court which was dismissed but on appeal this Court set aside the appointment vide judgment reported as Muhammad Rashid Chaudhry v.
Chairman AKLASC and others (1993 PLC (C.S.) 1201).
4. It may be pointed out that in Muhammad Rashid Chaudhry's case promotion of the appellant was vacated on the ground that he had been posted against a higher post in his own pay and scale which was illegal.
5. The appellant was again promoted on 21st November, 1992 as Manager Operations in NPS-19.
Muhammad Hafizullah challenged this order by filing appeal before Chairman of the Corporation on 20th January, 1993. The appeal was returned to Muhammad Hafizullah on 30th November, 1998 on the ground that it was not maintainable. We have omitted some events which transpired between 21st November. 1992 and 30th November, 1998. We will be stating these facts at another place when we deal with the question of aches. Muhammad Hafizullah then filed a writ petition which was accepted, as stated above.
6. Before proceeding further in the case there is one basic point which may be decided in light of the admitted position between the parties. The point relates to the relief granted by the High Court.
It is the contention of the learned counsel for the appellant that the High Court has granted relief which Muhammad Hafizullah had not claimed by setting aside the orders by which the appellant was promoted to NPS-17 and 18 decades ago. The prayers made in the writ petition were as follows:-- "It is, therefore, most respectfully prayed on behalf of the petitioner that this Honourable Court may very graciously be pleased to accept high prerogative writ of the petitioner and declare the promotion order of the respondent No,5 dated 21-11-1992 (Annexure 'K') as without any lawful authority hence having no legal effect. It is further prayed that appointment of the respondent No,5 against NPS-17 and promotion against NPS-18 and 19 be announced as without recommendation of the concerned Selection Authority, therefore, the said respondent be deemed as temporary employee in Grade B-17 and above. As an alternative while accepting high prerogative writ of mandamus the official-respondents be directed to promote the petitioner in Grade B-19 since 13- 12-1990 from the date the respondent No,5 was promoted against the above grade without considering the petitioner vis-a-vis to 21-5-1997. Any other relief which this Honourable Court deems fit in the circumstances of the case may also be granted. Cost of the writ petition is also solicited in the interest of justice."
7. In the writ petition detailed facts were narrated to explain that the writ against the order of promotion of the present appellant to NPS-19 was not hit by laches but not a single mention was made as to how the writ against orders of promotion to NPS-17 and 18 was not hit by laches. The appellant's promotion to NPS-17 was made on 5th July, 1979 which means that the writ was filed more than 19 years after the said promotion. His promotion to NPS-18 was ordered on 25th September, 1986. It means that the writ was filed 12 years after the said promotion. In absence of any explanation the writ petition was clearly hit by doctrine of laches but the High Court did not advert to this question at all and set aside the aforementioned two orders. Apart from laches there was another legal defect which was insurmountable for Muhammad Hafizullah that Muhammad Hafizullah and Raja Muhammad Asghar Khan belonged to highly different branches of Corporation service and at the stage of B-19 it could be said that the two had common seniority. Therefore, the respondent could not claim to be an aggrieved person so far as the appellant's promotion in his own branch was concerned. Another aspect of the case is that Muhammad Hafizullah did not challenge the promotion of the respondent in NPS-17 and 18, but raised a different argument which will be clear if we reproduce the relevant ground, namely, ground (B) in para.21 of the writ petition:- - "(B) That the respondent-Board while promoting the private-respondent against Grade B-19 failed to appreciate that the said respondent was not even approved by the Selection Authority against the post of NPS-17 who was appointed as a stop-gap arrangement, by transfer by the respondent Managing Director on 5-7-1979 (Annexure 'B') whose promotion against Grade B-18 was also against recommendation of the Selection Authority which was made on 29-10-1986 (Annexure 'J').
In the attending circumstances the private respondent who has not been appointed/promoted either in Grade B-17 or in Grade B-18 who will be deemed as temporary employee in the above grades, could not be regularly promoted against Grade B-19 needing interference of this Honourable Court for maintenance of law and justice."
8. The High Court has granted relief in the following terms.
"Therefore, in the light of above facts, this writ petition is allowed, the promotions of contesting respondent No,5, above Grade 16, are held illegal. The Competent Authority may ratify his orders of promotion in upper grades in accordance with law. However, he is declared junior to the petitioner, as such petitioner who has been found entitled to be promoted in Grade-19 by the competent authority shall be entitled to claim this grade from 13-12-1990, the date when contesting respondent No,5 was given this grade."
9. It is thus clear that:--
(1) so far as the promotion of appellant in NPS-17 and 18 were concerned the respondent was not an aggrieved person;
(ii) there was delay of 19 years and 12 years respectively which was not explained;
(iii) the 'two promotions were not challenged in the writ petition.
' Therefore we have no hesitation in holding that the judgment of the High Court insofar as it relates to promotions to NPS-17 and 18 is unsustainable and we vacate it.
10. Now we take up the promotion order of 21st November, 1992 by Secretary of the AKLASC Board and was in the following terms; "Board of Directors of AKLASC in its 117th meeting held on 8th November, 1992 at Muzaffarabad brought under consideration the performance and record of the officers holding Basic Pay Scale-18 and approved the promotion of Messers Muhammad Yousaf. Acting Manager Technical and Raja Muhammad Asghar Khan Acting Manager Operation, respectively as Manager Technical and Manager Operation Scale-19 with effect from the date of assuming charge, namely 13th December, 1990."
11. By virtue of this order the appellant became Manager Operation B-19. The relevant entry in the Azad Jammu and Kashmir Logging and Sawmill Corporation Service Rules relating to NPS-19 posts is entry No,3 which is as follows:-- {{TABLE}}
3. General Manager (Tech.) Board of (i) By promotion Finance Administration. Mill Manager/ Directors on the basis of Secretary Forest Manager selection on merit, (Chairman)
BPS-19 seniority fitness (2)M.D. from amongst the AKLASC Deputy Managers (3) CDP preferably in the related field or found suitable with at least 13 years of service in BPS-17 and above. i,e, (a) 50% seniority fitness.
(b) 50% merit.
(2) By contract from the market. {{TABLE}}
12. The claim of the respondent is that he was eligible for promotion as Forest Manager. The relevant provisions reproduced above shows that although Muhammad Hafizullah belonged to a different functional unit but he could be considered for promotion as Forest Manager if no Deputy Manager Forest was found fit for promotion. For promotions in the Corporation there is a Selection Committee which had to determine respective merits, seniority and fitness. In our view if the Selection Committee had considered the case, the appellant, being in the related field, was to be given preference but if he were not found fit for promotion then the respondent could have been considered for the said post. In our view this gave locus standi to the respondent to challenge the promotion order of the appellant as it had been passed without recommendation of the Selection Committee as is admitted.
13. However, merits of the case can be considered only if the hurdle of laches is crossed. As seen above the promotion order of Raja Muhammad Asghar Khan was passed on 21st November, 1992 with effect from 13th December, 1990. The writ petition was filed on 13th December, 1998. There is detailed explanation of this delay which may be summarized below:--
1. The order of promotion was passed on 21st November, 1992. Appeal addressed to Chairman AKLASC was filed on 21st January, 1993,
2. On 10th August, 1993 Board of Directors constituted a Committee for examining the appeals filed with the Board and give personal hearing to the concerned persons.
3 The Committee heard Muhammad Hafizullah and another officer Abdul Aziz who had filed appeal against the promotion order of Raja Muhammad Asghar Khan but the decision could not be recorded due to different reasons.' Repeated reminders were sent by Muhammad Hafizullah.
4. Meanwhile Muhammad Hafizullah was also promoted as Manager Technical B-19 on 21st May, 1997 but he was not satisfied and he wanted his appeal to be decided so that he could get promotion with effect from 13th December, 1990.
' Ultimately on 30th November, 1998 the appeal was retimed to the respondent for the reason that the Supreme Court' had decided in Civil Appeal No, 78 of 1992 titled Muhammad Rashid Choudhry v. Chairman AKLASC and others (1993 PLC (C.S.) 1201 that under Rule No,21 of the AKLASC Employees Service Rules, 1977 the AKLASC Board was only competent to hear appeals against an order by which a penalty is imposed on an officer of the Corporation. Muhammad Hafizullah was informed that his appeal was not maintainable in light of the dictum of the Suprerne Court.
6. Muhammad Hafizullah filed writ petition on 30th December, 1998.
14. The High Court has accepted the explanation given by Muhammad Hafizullah that he had all along been pursuing, his, remedy. This aspect of the case was argued at length by both the learned counsel for the parties, Mr. Abdul Rashid Abbasi and Mr. M. Tabassum Aftab Alvi. It was submitted by Mr. Abdul Rashid Abbasi, the learned counsel for the appellant, that the High Court fell in error in holding that respondent Muhagunad Hafizullah was not guilty of laches. He submitted that the order of promotion of the appellant was passed by the Board of the Corporation which was final and was not amenable to any appeal or review but the respondent filed appeal against it. He submitted that an appeal can be preferred in a higher foreign but is the respondent filed appeal against the order of the Board to the Chairman of #0ril who being part of the Board, is not higher m status. Even if it is an to be an appeal before the Bijard it was patently misconceived because, contended by Mr. Abdul Rashid Abbasi, the only appeal provided in the relevant rules is that which is mentioned in rule 21 of the Azad Jammu and Kashmir Logging and Sawmill Corporation Employees Service Rules, 1977 which gives the right of appeal in respect of punishment and in no other matter. Rule 21, alongwith inter connection rules 22 and 23, for determination in Muhammad. Rashid Chaudhry v. Chairman ALKASC and others (1993 PLC (C.S.) 1201) and it was laid down as follows:- "In our opinion the rules under reference are not happily worded. However, it is clear that right of appeal is only in respect of punishment and not otherwise."
15. The judgment in Muhammad Rashid Chaudhry's case was rendered on 24th April, 1993.
Muhammad Hafizullah's appeal under discussion was filed on 21st January, 1993 when the aforementioned case had not been decided, Mr. Abdul Rashid Abbasi submitted that after the judgment in Muhammad Rashid Chaudhry's case it had become clear that the so-called appeal was not maintainable, therefore, the respondent should have immediately filed a writ petition in the High Court in which case he could have possibly pleaded condonation of delay for the reason that his appeal was pending before the Board when Muhammad Rashid Chaudhry's case was announced but he continued to wait for outcome of the appeal which was not warranted which proved that Muhammad Hafizullah was not vigilant. He submitted that the judgment of this Court in normal course of events must have come to the notice of the appellant soon after his announcement because he was involved in the litigation. According to Mr. Abdul Rasheed Abbasi it was open to Muhammad Hatizullah to plead that the judgment did not come to his knowledge but no such plea is on record. He therefore, pleaded that the whole time consumed in decision of the appeal amounted to laches but in any case the time between the announcement of the judgment under reference, namely, 24th April, 1993 to the date of filing of the writ petition, namely, 30th December, 1998 could not be ignored as it amounted to gross negligence. It was submitted that meanwhile the appellant has been working on a post in BPS-19 for the last 10 years or so and the High Court has acted in inequitable manner in dislodging him from the said post. The learned counsel for the appellant relied on the case titled Azad Government of the State of Jammu and Kashmir and others v. Haji Summandar Khan and others (1995 MLD 1350) in which delay of five to eight months in filing of writ petitions which had been accepted by the High Court was held to be fatal in absence of reasonable explanation. Facts of the case were that land was acquired for constructing University Campus under a law known as 'the Azad Jammu and Kashmir Acquisition of Land (Housing and Development Schemes) Ordinance 1981'. Market value of the land was assessed at Rs,40,000 per Kanal but due to the restriction imposed under section 7 of the Ordinance only Rs,20,000 per Kanal was paid as compensation. Some land owners challenged the awards by filing appeals under the revenue authorities which were dismissed. They filed two writ petitions in the High Court challenging the vires of section 7 of the Ordinance on the ground that it violated fundamental right relating to property right enshrined in the Azad Jammu and Kashmir Interim Constitution Act, 1974. The writ petitions were accepted by holding that the impugned provision of law was against the aforementioned fundamental right Consequently compensation was ordered to be paid at the rate of Rs,40,000 per Kanal which was the market value of the land.
Thereafter some other land owners who had not filed writ petitions also challenged section 7 mentioned above by filing writ petitions. The writ petitions were filed after a delay of 6 to 9 years reckoned from the date of dismissal of their appeals under the Ordinance. The delay was explained by stating that the writ petitioners had been waiting for the outcome of the previous writ petitions.
The explanation was accepted and writ petitions were accepted. Appeals were brought to this Court. After surveying the case-law the appeal was accepted and the writ petitions were ordered to be dismissed on the ground of laches. About delay of 6 to 9 years it was held as follows: "The next point which needs resolution is as to whether in the instant case the explanation by the petitioners-respondents that they filed the writ petitions after delay because they were waiting for the outcome of the writ petitions filed by other landowners referred to above is a valid explanation.
We have given our due consideration to the matter and we have come to the conclusion that the petitioners-respondents should have known that even if the relevant law was held by the High Court ultra vires of the Constitution they could not get any relief as they were not party to the proceedings. Thus even if the explanation is accepted as true we are unable to subscribe to the view taken in the authorities relied upon by the learned counsel for the respondents. If we accept the explanation that laches in filing writ petition can be condoned on the ground that the concerned party was waiting for the decision of another identical case then there would be no end to the litigation. Because other persons who were adversely affected by the offending provision of the Ordinance in the State may seek remedy by filing writ petitions and plead that they were waiting for the judgment of this Court on the point. Obviously this would frustrate the very purpose of bar of laches in cases of writ jurisdiction."
16. It was further held that even otherwise the writ petitions were liable to be dismissed because even after the judgment in the previous writ petitions new writ petitions were not promptly filed. The relevant passage of the judgment is as follows:-- 'However, even otherwise, the writ petitions filed by the respondents must fail because as has been observed in the earlier part of the judgment the present writ petitions were filed by the respondents after the expiry of 6 to 9 months from the date of the delivery of the judgment by the High Court in the two writ petitions referred to above. The learned counsel for the petitioners-respondent maintained that after the judgment of the High Court in the write petitioner filed the other landowners they issued a notice to the Government to pay them the amount of compensation at the rate of Rs,40,000 per Kanal within a period of 15 days to one month but they did not oblige. Even if we subtract the period of one month from the period reckoned from the date of the judgment of the High Court in the said writ petitions even then the writ petitions are belated by 5 to 8 months.
There is no explanation whatsoever for the aforesaid delay and, thus, the writ petitions would still be hit by lache.s.
17. Mr. M. Tabassum Aftab Alvi, the learned counsel for respondent Muhammad Hafizullah, vehemently contended that the writ petition filed by his client was not hit by doctrine of laches. He firstly submitted that the appeal before the Board was filed by Muhammad Hafizullah in accordance with the previous practice prevailing in the Corporation in which appeals against orders of the Board used to be filed before the Board in all matters unconnected with discipline. He submitted that for the first time in Muhammad Rashid Cnaudhry's case it was laid down that appeal could only be filed against an order by which a penalty is imposed on an employee of the Corporation. After the said judgment it was for the Board to reject the appeal filed by Muhammad Hafizullah but the appeal was kept pending and a Committee was also set up by the Board on 10th August, 1993 for giving personal hearing to the concerned persons. The Committee was set up five months after the judgment of this Court in Muhammad Rashid Chaudhry's case. According to Mr. M. Tabassum Aftab Alvi the matter throughout was under consideration of the Board, therefore, it was natural for the respondent to wait for its Outcome The learned counsel submitted that even after the judgment in Muhammad Rashid Chaudhry's case a number of appeals about seniority, promotion etc. Were decided by the Board. He referred to the following decisions of the Board which form part of the High Court file:--
(i) Appeals filed by Javed Iqbal, Mumtaz Ahmad and Muhammad Idrees were partly accepted on 7th July, 1996.
(ii) Appeal filed by Mehmood Akhtar Jan was rejected on merits on 6th July, 1996.
(iii) Appeal filed by Ch. Muhammad Yousaf was accepted on 6th July, 1996.
(iv) Appeal filed by Sardar Fida Hussain Khan was accepted on 6th July 1996.
(v) Two appeals filed by Shaikh Abdul Qayyum were accepted on 15th October, 1990.
18. He also drew our attention to the fact that a Committee was constituted by the Board to examine the appeal cases and proceeded with the job entrusted to it and gave personal hearing on 12th July, 1994, three months after the pronouncement of judgment in Muhammad Rashid Chaudhry's case which judgment is mentiorted.In the recommendations of the said Committee which' is available as Annexure R in the: High Court file.
19. In light of these facts, Mr. M. Tabassum-Aftab Alvi contended that it was natural that his client expected that his appeal would also be decided on merits. Throughout this period his client was vigilant. He therefore submitted that it was an eminently fit case' in which the doctrine of laches was inapplicable. The learned counsel relied on the following case-law.
' Abdul Qadir v. Government of West Pakistan> through its Home Secretary, Lahore (PLD >1967 SC 506). Abdul Qadir, Sub-Inspector Police, was retired from service. He filed appeal against the punishment before the Additional Inspector General of Police 'which was rejected. He then filed mercy petition before the Inspector-General of Police. Subsequently he-filed a representation before Home Secretary. Then be filed two more successive representations before the Government and President of Pakistan. A period of five years was thus consumed. He filed a writ petition in the High Court which was dismissed on the ground of lathes but the Supreme Court set:aside the order.
After noting the 'facts the Supreme Court of Pakistan held that Abdul Qadir filed writ petition promptly after the dismissal of his representations and, therefore, it could not be said in the circumstances that his writ petition was barred on the ground of laches.
' Pakistan v. Sheikh Abdul Hamid (PLD 1961 SC 105). Facts of the case were that cause of action arose to Abdul Hamid in respect of his seniority in 1949. He filed a representation which was dismissed but he filed another representation which was also dismissed in 1957. He then filed a writ petition in the High Court. The writ petition was accepted. Question of laches was raised' in the appeal taken to the Supreme Court. The objection was overruled by A.R. Cornelius, C.J., who spoke for the Court as follows:-- "The point of delay in applying for a writ was also raised, but it is quite clear that Sheikh Abdul Hamid was not lacking in diligence in making representations throughout the period from 1949, when he suffered the injury, up to 1957, when he filed the petition in the High Court."
' Pakistan through Secretary, Ministry of Finance, Rawalpindi v. . A.P. Hassumani and another (PLD 1962 SC 409). Facts of the case were that a writ petition was filed in 1958 whereas seniority had been 'practically settled in 1954. Commenting on the plea of laches S.A. Rehman, J. (as he then was) observed as follows:-- "It appears, however, that during all this time representations were being made by the petitioners to Government and till the date of the petition in, the High Court, an appeal submitted to the President of Pakistan had remained undisposed of. In the circumstances, the plea of ladies on the part of the petitioners is without any substance."
' Mr. M. Tabassum Aftab Alvi also relied on the following cases to contend that if a person is prosecuting a remedy in a wrong forum doctrine of laches is not applicable.
' Muhammad Khan v. Shamsuddin and others (1969 SCMR 212). Facts of the case were that two shops and a house owned by a defaulter under the Cooperative Societies Act, 1925 were sold without open auction and were purchased by Muhammad Khan. The defaulter filed appeal before the Sindh Government which was accepted and the sale was set aside. Since no notice was given to Muhammad Khan he filed civil suit for a declaration that the Government order setting aside the sale was illegal and ultra vires. The suit was decreed but subsequently it was held by the District Judge and then by the High Court that Civil Court had no jurisdiction in the matter. Eight years period was consumed in these proceedings. Muhammad Khan then filed a writ petition in the High Court which was dismissed by the High Court on the ground of ladies but the Supreme Court held that it could not be said that Muhammad Khan was negligent in filing the writ petition. The writ petition was accepted and the sale proceedings were set aside.
' Municipal Committee Lalamusa through Chairman v. Punjab Labour Appellate Tribunal, Lahore and 2 others (1987 PLC (C.S.) 497). It was held that a person who has been bona fide pursuing remedy before a wrong forum and it is shown that he did not sleep over the matter the principle of laches would not apply.
' Similar views were expressed in Gouranga Mohon ' Sikdar v. Controller of Imports and Exports and others (PLD 1968 Dacca 23) and Mst. Rashda Parveen v. Deputy Settlement Commissioner (Plots) and 8 others (PLD 1982 Lah. 250). Mr. M. Tabassum Aftab Alvi submitted that Summadar Khan's case was not applicable in the present case because it was not a case of wrong forum,
20. While deciding the question as to whether a writ petition is hit by the doctrine of laches facts of each case have to be kept in view. The principles laid down in the judgment cited before us are well-known but in the recent years there has been change of views on this subject but we need not go into that question because, in our view, the cases in which the appointment of a civil servant or employee of a corporation which is amenable to writ jurisdiction, the question of laches has to be liberally construed in favour of the objector. The reason on which our thinking base is that the doctrine of laches is not applicable to writs of quo warranto and any person can at any stage move the High Court that a person holding or purporting to hold a public office may be called upon to show under what authority of law he was holding a public office. The principle of law that the doctrine of laches is not applicable to writs in the nature of quo warranto is well-settled subject to just exceptions that there should be no mala fide in filing the application for quo warranto. That being the position even if a person has not filed a writ of quo warranto but has filed a writ of mandamus or certiorari it is always open to him to file a writ of quo warranto if his writ of mandamus or certiorari is dismissed on the ground of laches. This would lead to multiplicity of litigation. Therefore while all other restrictions which are attached to exercise of writ jurisdiction would apply, the question of laches should be liberally construed. On the basis of the principle that doctrine of laches is not applicable to writs of quo warranto it can be said, subject to just exceptions, that illegal appointment or promotion of a person is always open to challenge.
Therefore applying this principle we have no hesitation in reaching the conclusion that the respondent has been able to show that he was acting diligently throughout and was in the hope that although remedy by way of appeal to the Board became unavailable after a few months of the filing of appeal by respondent Muhammad Hafizullah but he diligently kept on pressing that his appeal may be decided. As has been proved above, the Board kept on deciding the appeals filed by different employees on merits even after the judgment of this Court in Muhammad Rashid Chaudhry es case. In these circumstances we are of the view that delay is not a factor which can be construed against Muhammad Hafizullah.
21. Now we turn to the merits of the case. We have already vacated that part of the judgment by which the High Court set aside the promotion order of the appellant so far as posts in NPS-17 and 18 are concerned. Now we deal with the promotion order of the appellant as Manager Operation in NPS-19.
22. We may first point out that promotion in the Corporation cannot be ordered by the Competent Authority unless the case has been processed by the Selection Committee. It has been so held in Shaheen Asad v. Azfar Yasmeen and others Civil Appeal No, 44 of 1999 decided a few days earlier on 5th July, 2000. Rule 27 of the Azad Jammu and Kashmir Logging and Sawmill Corporation Employees Service Rules, 1977 lays down that: "In all matters not expressly provided in these rules members of the service shall be governed by appropriate rules/orders of the Government." The rule reproduced above makes rule 9 of the Azad Jammu and Kashmir (Appointment and Conditions of Service) Rules, 1977 applicable to the employees of the Corporation. Rule 9 runs as follows:-- "9(i) Appointments by promotion or transfer to posts in various grades shall be made on the recommendations of the appropriate Committee or Board.
(ii)
The result which follows is that it is a mandatory condition that promotion in the Corporation shall be made only if the case has been processed by the Selection Committee.
23. The promotion order of the appellant was issued on 21st November, 1992. The order recites that the decision to promote Raja Muhammad Asghar Khan as Manager Operation BPS-19 was taken in the 117th meeting of the Board of Directors of AKLASC held on 21st November, 1992. It is stated in the order of promotion that while selecting him for promotion to the higher post his performance in NPS-18 and his service record was duly considered. Admittedly the matter was not examined or recommended by the Selection Committee functioning in the Corporation which stood duly constituted in the Corporation. On the face of it, it is a clear violation of rule 9 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 which, as stated earlier, is applicable to the officers of the Corporation by virtue of rule 27 of the Azad Jammu and Ka.Shmir Logging and Sawmill Corporation Employees Service Rules 1977.
24. However, it was vehemently contended by Mr. Abdul Rashid Abbasi, the learned counsel for the appellant, that all members of the Selection Board were also members of the Board of then Corporation and they also duly participated in the meeting in which decision to promote the appellant was taken. On the basis of this fact it was vehemently contended by the learned counsel for the appellant that it shall be deemed that the Selection Committee had recommended him. We regret that this argument cannot be accepted. Selection Committee and the Board of Directors are two different entities and they perform functions which are vastly different in nature. The Selection Committee has to function independently while formulating its recommendations. In forming its opinion the Committee has to act independently and its recommendations have to be based on uninfluenced assessm ent of the merits of each candidate. The function which was, to be performed by the Selection Committee was not to be performed by the persons who were not members of the Committee. When the meeting of Board of Directors was held it was participated by members who were not members of the Selection Committee. The Board is headed by a Chairman who is higher, in office and therefore commands greater influence than the members of the Selection Board. Therefore it cannot be accepted that the members of the, Committee acted without outside influence and remained uninfluenced by the Chairman of the Board, who is head of the. Corporation and other senior members. It is a well-settled proposition of law that if a decision is to be taken under a statute it must be taken in the discretion of the person who is authorised to take the decision and if it is taken under E influence of an outside authority the result of such action is vitiated. These are well-known principles which do not need any authority in their support.
Therefore, the conclusion is that the promotion order of the appellant was illegal and has to be set aside. Therefore the writ was rightly accepted to that extent.
25. The result would be that the post of Manager Operation BPS-19 shall be treated as vacant and the matter will be referred to the Selection Committee to fill in the said post by promotion. If the appellant is found fit for promotion by the Selection Committee he may be appointed with effect from 13th December, 1990 the date given in the promotion order of the appellant issued on 21st November, 1992. So far as the seniority of the appellant and the respondent is concerned it will depend on whether Raja Muhammad Asghar Khan is promoted from 30th December, 1990 or not and this matter is left open and it to be decided in light of the rules. So far as the question whether Muhammad Hafizullah will be considered alongwith Raja Muhammad Asghar Khan by the Selection Committee it may be observed that the relevant rules, already discussed above, clearly lay down that preference has to be given to the Deputy Manager of the related field.
' With the observations made above, this appeal is partly accepted as indicated above. Resultantly the judgment of the High Court insofar as it relates to the promotion of the appellant to the post in NPS-19 is upheld while rest of the judgment is set aside.