' IFTIKHAR MUHAMMAD CHAUDHARY, J.---This appeal by leave of the Court is directed against the judgment dated 14th April, 1998 passed by N.-W.F.P. Service Tribunal, Peshawar whereby service appeal filed by appellant has been dismissed being barred by jurisdiction.
2. Precisely stating the facts of the case are that a post of Director (Engineering Wing) Agriculture Department FATA in BPS-19 was sanctioned by the Government of N-W.F.P. Which was to be filled in by promotion from the incumbents of the cadre of Agriculture Engineers. Subsequently, a panel of five Agriculture Engineers including the appellant was prepared and the matter was sent to Provincial Selection Board for consideration. The Board, under the Chairmanship of respondent No,1 declared Badshah Noor Khan (respondent No,5) as a suitable person for promotion, inn pursuance whereof the Secretary Government of N.-W.F.P. Issued promotion notification of respondent No,5 dated 8th July, 1996, Feeling aggrieved from the above said notification appellant preferred departmental appeal before the then Chief Minister, Government of N.-W.F.P. On the ground that as he is serving the Agriculture Department for the last about 31 years as Agriculture Engineer, with unblemished record, and is senior to respondent No,5, therefore, the Provincial Selection Board (respondent No,2) while considering his service record and respondent No,5, has fallen into a serious error, both legal and factual, as such dropped him and promoted the respondent No,5. On failure to receive any response, whatsoever, within the statutory period of 90 days, the appellant filed service appeal before the Provincial Service Tribunal which has been dismissed by means of impugned judgment? Relevant para there froe is reproduced hereinbelow for convenience:- "On factual side the case is short and simple. Whatever the factual position may be, there is a clear and total bar under section 4(b)(i) of the N.-W.F.P. Service Tribunals Act 1974. Under this section 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 to or hold a particular post or to be promoted to a higher post or grade. So as section 4((b)(i) is a clear law on the point, therefore, no appeal can lie in such-like matters and the jurisdiction of this Tribunal is totally barred in such-like cases and the Service Tribunal cannot encroach upon the domain of the Provincial Selection Board which is the sole authority for determination of promotion cases of Government 'servants and with these observations, the present appeal is hereby dismissed, leaving the parties to bear their own costs."
3. Appellant appeared in person and stated that the Service Tribunal had non-suited him ignoring the fact that the Provincial Selection Board had declined to promote him to BS-19 not for the reason that he was not fit for the promotion but on account of non-eligibility as he had an adverse entry in his ACR, pertaining to one month of the year 1967 added with the reason that he had previously faced disciplinary departmental proceedings. Whereas both these reasons were not available to the Board, for not promoting the appellant, firstly because prior to the meeting of Provincial Selection Board, he had been exonerated from the disciplinary proceedings and secondly as far as the effect of adverse entry in ACR pertaining to one month of 1967 is concerned, that was also not liable to be considered at it was not a complete ACR written by the Reporting Officer for a prescribed period of three months and according to the working papers, prepared for the promotion of the Agriculture Engineer (B-18) to the rank of Director Agriculture Engineer FATA-BS-19, the experience of only five years with total service of 12 years in the department in Grade-17 and above, was required. He vehemently argued that with mala fide intentions, Secretary, Agriculture Department did not place correct picture qua the case of the appellant. With a view to manipulate rejection of the promotion's case.
4. On the other hand, learned counsel appearing for respondents contended that the Provincial Selection Board had not found the appellant fit for promotion on account of his bad record, therefore, Service Tribunal was quite justified in not exercising jurisdiction to give relief to appellant in terms of section 4(b)(i) of the N.-W.F.P. Service Tribunal Act, 1974.
5. We have heard the appellant in person as well as learned counsel for respondents and have also gone through the working paper, prepared by the Agriculture Department; Government of N.-W.F.P.
Dated 23rd October, 1995. As per its contents, following method of recruitment was to be followed for the post of Director of Agriculture Engineering FATA BS-19:-- "By selection on merit from amongst holders of the post of Agriculture Engineers with at least 5 years experience as such and a total service of 12 years in the Department in Grade-17 and above."
6. Admittedly appellant joined the service in Agriculture, Department, and Government of N-W.F.P.
On regular basis w,e,f, 26th November, 1967. On completion of the calendar year i,e, December, 1967, only for a period of one month, adverse annual confidential report of the appellant was written, therefore, question arises as to whether a report of only one month's service can be treated to be adverse against an employee, whose case is being considered for recruitment in the next higher scale, after about a period of 28th years/ The second consideration, prevailed upon by the Provincial Selection Board to reject the case of appellant for recruitment to next higher grade, was that he was recently been involved in the disciplinary proceedings, whereas fact remains that much prior to meeting of the Provincial Selection Board, the Chief Secretary, Government of N.- W.F.P. Vide office order dated 1st April, 1996 had exonerated the appellant from the charges, levelled against him. Thus we are persuaded to hold that according to rejection order of the Provincial Selection Board, appellant was not unfit but was found ineligible to be promoted to the next higher grade. Whereas the case of the appellant is that he was eligible for recruitment/promotion from BS-18 to BS-19 as Director Agriculture Engineers but department with mala fide intentions misguided to the Provincial Selection Board. It is now well-settled that, when a civil servant is eligible for promotion to the next higher grade but' has been ignored, and other ineligible candidates were promoted, then his appeal to the Service Tribunal would be competent. Reference in this behalf can be made to the case of Abdul Ghafoor v. National Highway Authority (2002 SCM R 574). Relevant para from the said judgment reads as under:-- " He also relied upon section 4(1)(b) of the Service Tribunals Act, 1973, laying down that 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 to or hold a particular post or to be promoted to a higher post or grade. There can be no cavil with the proposition of law canvassed at the bar but strictly speaking, the appellant is asking for the enforcement of his legal right on the ground that he was ignored although eligible while other respondents, who were ineligible, were promoted. The issue has been set at rest in a number of cases and in that behalf we may refer to Abdul Malik v.
Sabir Zameer Siddiqui (1991 SCM R 1129), Muhammad Anis v. Abdul Haseeb (PLD 1994 SC 539) and Z.A. Javed Raja Administrative Officer v. Secretary Establishment Division (1996 SCM R 329). Learned counsel relied upon Government of N.-W.F.P. Health and Social Welfare Department v. Muzaffar Iqbal (1990 SCM R 1321) but in our view the said precedent is hardly attracted to the circumstances of the appellant's case. We do not think that the appeal preferred by the appellant was incompetent or barred by law.............
' Similarly, in the case of Zafar-ullah-Baloch v. Government of Balochistan (2002 SCM R 1056), above principle has been reiterated by holding that 'eligibility for promotion of approved persons can be subjected to judicial scrutiny by Service Tribunal, as it relates to the terms and conditions of a civil servant'.
7. Because the Service Tribunal, without examining in depth the proposition namely, as to whether appellant was ignored by the Provincial Selection Board on the ground that he was not fit for promotion or he was not eligible, for the reasons mentioned in the minutes of the Board, had rejected the appeal filed by the appellant summarily, therefore, in the interest of justice, we set aside the impugned judgment dated 14th April, 1998, remand this case to the Service Tribunal with the direction to call for complete record of the case from the department and in presence of the same, re-examine the case of appellant, after providing proper opportunity of hearing to both the parties, in accordance with law, independently, without being influenced in any manner from the observation made hereinabove.
' Appeal is allowed in above terms. Parties are left to bear their own costs.