MUNIR HUSSAIN SHAH Versus SECRETARY, FORESTS DEPARTMENT, AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR, MUZATLARABAD

1. SARDAR SAID MUHAMMAD KHAN, C.J.‑‑‑ This appeal has been directed against the judgment of the Service Tribunal dated 14‑11‑1992, whereby the appeal filed by the appellant, herein, was dismissed.

2. The brief facts giving rise to the present appeal are that Munir Hussain Shah, appellant herein, joined service of the Forests Department as Baildar/Watcher on 15‑2‑1981 whereas Mir Sajjad Hussain, respondent No.2, joined service as Baildar/Watcher on 26‑1‑1986. Subsequently, respondent No. 2 was promoted as Forest Guard on 16‑9‑1990. The appellant preferred an appeal before the Chief Conservator of Forests who, after hearing the parties, accepted the appeal and set aside the order of promotion made in favour of respondent No. 2. Respondent No.2 preferred an appeal before the Secretary Forests against the order of Chief Conservator of Forests who accepted the same on 9‑6‑1991, whereby the order of the Chief Conservator of Forests was set aside. The appellant preferred an appeal before the Service Tribunal against the order of the Secretary Forests but the same was dismissed and the order of the Secretary Forests was upheld.

3. The case of the appellant is and was that the service of the parties was governed under the Rules, known as Azad Jammu and. Kashmir Forest Department Service Rules, 1984 and 20 % posts of Forest Guards were to be filled from Baildars/Watchers on the basis of seniority‑cum‑fitness. The grievance of the appellant is that he was admittedly senior to respondent No.2 and should have been promoted as such. The Service Tribunal expressed the view that as the appointment of the appellant as Baildar/Watcher did not fall within the purview of `Government servant', he could not seek promotion on the basis of Rules on the ground that he was senior or he was governed by the Civil Servants Act or Rules framed thereunder. It was further opined by the Service Tribunal that mere seniority was not a ground to seek promotion as Forest Guard; rather the promotion was to be made on the basis of seniority- cum‑fitness and, thus, as the relevant Committee found the respondent No.2 to be more suitable as compared to the appellant, the impugned order was not open to any exception. The Service Tribunal also opined that as the appointment of the appellant as Watcher was on temporary basis as a `substitute', he was not entitled to claim seniority on that basis.

4. The first question which needs resolution is as to whether the case of the appellant is to be governed by Civil Servants Act and Rules framed thereunder or he being not a Government servant, as held by the Service Tribunal, the aforesaid Act or Rules are not applicable to him. It may be stated that the expression `civil servant' has been defined under section 2 of the Act, which is relevant. Section 2(b) is reproduced as under:‑‑

5. "2(b). `Civil servant' means a person who is member of a Civil Service, or holds a civil post, in the service of Azad Jammu and Kashmir employed in connection with the affairs of the Government, but does not include‑‑

(i) ....................................

6. (ii).........................

(iii) ...................................

7. It may be stated that the expression `Government' used by the Service Tribunal does not find any place in the definition of `civil servant' and in view of the definition of expression `civil servant' reproduced above] it cannot be said that the appellant was not a civil servant, especially so when he was treated as such. The Rules called as Azad Jammu and Kashmir Forest Department Service Rules, 1984 (hereinafter shall be called the Rules), have been made applicable to Baildars and Watchers. The aforesaid Rules were framed under the Civil Servants Act, 1976 by the Government in exercise of the powers which vested in it under section 23 of the Civil Servants Act, 1976. The departmental authorities including the Secretary Forests did not express the view that the appellant or for that matter respondent No. 2 were not civil servants and as such they are not governed by the Civil Servants Act or rules framed the under. It was for the first time that the Service Tribunal expressed the view on the point. It is not out of place to mention that the departmental authorities have considered the promotion of the contesting parties in light of the aforesaid Rules which have been framed by the Government under Civil Servants Act In other words, the appellant was treated as a civil servant while dealing with the question of promotion of the contesting parties. Thus, the view taken by the Service Tribunal that the Civil Servants Act or Rules framed thereunder are not applicable to the case of the appellant, is not sustainable.

8. The Service Tribunal also expressed the view that the appellant was temporarily employed as Watcher as a substitute and, thus he had no right to claim promotion on the basis of seniority. It may be stated that the appointment order of respondent No.2 also shows that he was also temporarily appointed as Watcher. Thus, so far as temporary nature of the contesting parties is concerned, that was identical. Be that as it may, the appellant continued to serve as Baildar/Watcher for more than nine or ten years. The fact that both the contestants were appointed temporarily is sufficient to repel the argument that the appellant was not eligible for promotion as a Forest Guard. Thus, the mere fact that in the appointment order of the appellant, the were substitute' or the word appears, would not detract from the meats of the case of the appellant, especially so when he was not held unsuitable for the promotion or junior to respondent No.2; rather the Secretary Forests has expressed the view in unequivocal terms that the appellant was senior to respondent No.2 but as respondent No. 2 had better academic qualification than the appellant for promotion, the respondent should be promoted as Guard. Thus, in view of the facts of the case and respective stands taken by the parties before the departmental authorities, it is clear that both the appellant and respondent No.2 were treated as civil servants and eligible for promotion as Guards by the departmental authorities. Sardar Rafique Mahmood Khan, the learned counsel for the appellant, has argued that the Secretary Forests has wrongly recorded in his order while disposing of the appeal of the respondent that the respondent was better qualified than the appellant. He has argued that according to record both of them are temporary. So far as the training of the respondent is concerned, he has contended that it is on the record that he got the training after his promotion. Thus, it was submitted that when the contesting parties were considered for promotion, both had equal academic qualification required for promotion as Guard but as the appellant was senior to the respondent, he should have been promoted instead of respondent.

9. Mr. Aftab Alvi, the learned counsel for respondent No.2, has contended that no appeal was competent before the Service Tribunal against the order of promotion under section 4 of the Service Tribunals Act and, thus, the appeal filed by the appellant, herein, before the Service Tribunal and before this Court being incompetent should be dismissed as such. The learned counsel for the respondent has cited some authorities in support of his contentions which are as under‑‑

10. In case reported as Secretary, Government of Sindh, Education Department v. Syed Riyazul Hassan Zaidi (1986 SCMR 64), it was observed that a civil servant has no vested right to promotion and prospects of promotion cannot be included in conditions of service. It was further observed that seniority is not determining factor for judging suitability or fitness of a civil servant for discharging functions attaching to a post in higher grade. Thus, the order of the competent authority regarding the fitness or promotion of a civil servant cannot be made subject of appeal before the Tribunal.

11. In Abdul Matin Khan v. N.‑W.F.P. (PLD 1993 SC 187), the facts of the case were that the recommendations with regard to giving selection grade to Civil Judges made by the Administrative Committee consisting of the Judges of the High Court were not accepted by the Government. It was observed by the Supreme Court of Pakistan that if the Government and its functionaries override the assessment made by the Judges of the High Court regarding the subordinate judiciary in respect of promotion of its subordinates is not accepted by the Government that would damage the fabric of judiciary regarding its independence.

12. In case reported as Syed Hasnat Ahmad v. Nasim Ahmad, Secretary Information, Pakistan (1977 PLC (CST) 80), it was observed by the Service Tribunal that an ad hoc appointee to a post cannot claim promotion or right to hold a particular post against a person appointed on regular basis merely on the basis of seniority.

13. In Muhammad Ishaq v. Secretary, Establishment Division (1989 PLC (C.S.) 127), the matter relating to the promotion was dismissed as being time barred. It was further observed that as the appellant did not contest the promotion of his juniors through proper representation and his appeal to the Service Tribunal was time‑barred, the appeal had no merits.

14. In case reported as Mrs. Aqeela Asghar Ali v. Miss Khalida Khatoon Malik (PLD 1991 SC 1118), it was observed as under:‑‑

15. "9.The next legal ground urged by the appellants, particularly Mr. S.M. Zafar, Senior Advocate is that the question of pro forma promotion necessarily involves the question of fitness of the civil servants to be promoted and hence stands excluded from the jurisdiction of the Service Tribunal. This argument is correct to the extent that cases of promotion do ordinarily involve the question of fitness as well. To say that they involved only the question of fitness and nothing else would be limiting the scope of promotion. There are three things to be seen while considering a case of promotion.

16. First is the rule of promotion. Is it of selection or of seniority‑cum- fitness or of seniority alone?

17. The second is where the promotion is to take place by seniority‑cum -fitness, as in the case before us, the question would necessarily be assignment of the correct seniority and proceeding to determine the ' entitlement of promotion on its basis.

18. The third question necessarily would be of fitness for promotion.

19. 10.The first two questions, namely, the principle of promotion and the assignment of proper seniority for consideration for promotion are matters which do not stand excluded from the jurisdiction of the Service Tribunal because they do not involve the question of fitness which has been expressly reserved for the departmental authority and outside the jurisdiction of the Tribunal. The first two questions relate to law and its application to the civil servants awaiting promotion."

20. In Aish Muhammad v. Pakistan (1985 SCMR 774), it was observed that if an examination is held on a competitive basis for filling in certain number of vacancies, then a corresponding number of candidates from the top in the list of the successful ones will be promoted. Those who are lower in the list and, thus. left out, cannot complain that their non‑selection is on account of unsuitability. Suitability was determined by the examination and all those who qualified were suitable. Their non‑selection was, thus, not on account of unsuitability but on account of the restricted number of vacancies being available, for which, they being lower in the list were not eligible. If there were more vacancies, more of them would have been appointed. The matter, therefore, did not involve the question of suitability but of eligibility for the given number of available vacancies.

21. In case reported as Mujeebullah Aijar v. Director‑General, Telephone and Telegraph Department (PLD 1980 Quetta 58), it was observed that jurisdiction in service matters by way of writ is ousted in cases where the Service Tribunal had got the jurisdiction under relevant law.

22. In Syed Zawwar Hussain Shah v. Province of West Pakistan (PLD 1968 Kar. 693), it was observed that promotion and appointment on ad hoc basis does not create any right. The mere fact that a junior person continues to officiate in a higher post is not sufficient reason for Government to let him continue on higher post. Reversion to substantive post of such a civil servant cannot be termed as `reduction in rank'.

23. In an unreported case of this Court entitled Mahmood‑ul‑Hassan v Azad Kashmir Logging and Sawmills Corporation (Civil Appeal No. 31 of 1988, decided on 23‑10‑1989), it was opined that nature of officiating appointment remains temporary until and unless there is specific order making the same as permanent or the same is rendered as permanent by operation of law.

24. In another unreported case entitled Rang Baz Khan v. Raja Muhammad Azam Khan t Civil Appeal No. 40 of 1990, decided on 14‑4‑1991), it was observed that no tight of appeal or review was available to the appellant against the order of Revenue Commissioner. It was further observed that subrule (2) of rule 8 of Appeal Rules envisages that in case the civil servant has no right of appeal or review, he may file a representation to the authority next higher to the authority which made the order in the first instance. It was also observed that the order passed on representation would be appealable to the Service Tribunal and no further representation would be competent.

25. For appreciating the question of competency of appeal in the case in hand, it would be expedient to reproduce section 4 of the Service Tribunals Act as follows:‑‑

26. 4 ..

(a) .

(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining‑‑

(i) 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, or

(ii) ...........................................

(c) ...........................................

27. It is evident from proviso (b) (i) to section 4 that the fitness or otherwise of a person to be appointed or hold a particular post or to be promoted to a higher post or grade is not appealable meaning thereby that if it has been determined by the competent authority that a person is not fit to be promoted, then such a finding cannot be assailed. In the instant case it has not been held by any of the departmental authorities that the appellant was not fit to be promoted as Guard; rather respondent has been held to be entitled to the promotion because in the estimation of the Secretary of the department, he was better qualified and had also undergone some training. In other words, the impugned order of promotion of respondent has been made on the basis of better academic qualification as compared to the appellant and not on the basis that the appellant was not fit for promotion. If it is shown that the appellant was not also fit for promotion and the order of promotion of respondent was made in violation of the rules, then the proviso to section 4 of the Service Tribunals Act would not stand in the way of the appellant to prefer as appeal before the Service Tribunal. Because, as has already been stated, the findings of the departmental authorities are not that the appellant was unlit for promotion; rather the findings are that other person had better qualification for promotion. If it is found that under rules it is appellant who was to be promoted, then the order can be challenged in the appeal. In the instant case, the post of Forest Guard was to be filled in by promotion on the basis of seniority‑cum‑fitness under the Forests Rules of 1984. This implies that if the appellant was senior and possessed the minimum qualification for promotion as Guard, he was entitled to promotion instead of the contesting respondent who is junior to him; even if the respondent has more academic qualification than minimum qualification required for promotion. Thus, according to the rules, the appellant, being senior to the respondent and possessing the minimum qualification necessary for promotion was entitled to promotion; because the relevant rules stipulate the promotion as a Guard on the basis of seniority‑cum‑fitness. If a person is fit for promotion and possesses minimum qualifications required for promotion, he will have preference over a person junior to him with more academic qualifications. Thus, the appellant was entitled to promotion as against the respondent.

28. It is correct that if under relevant rules, the fitness of a relevant civil servant for the promotion is decided one way or the other that cannot be made basis of appeal to the Service Tribunal. Similarly, in case of selection post, the view in matter of promotion arrived at by the relevant Selection Board cannot be substituted by the Service Tribunal or this Court but if a promotion is made in derogation to the rules, on the subject, it cannot be said that no appeal is competent to the Service Tribunal because the question of promotion is hit by the bar stipulated in the proviso to section 4 of the Service Tribunals Act. It is correct that a person cannot seek promotion as of right but if he has minimum qualification of promotion, he has right to be considered and get the matter of promotion decided according to the rules; if he is not considered or if he is considered but his promotion is refused in derogation to the rules laid down in that regard, then it cannot be said that he cannot come up in appeal despite the fact that the rules on the subject have been violated.

29. In the light of what has been stated above we accept the appeal, set aside the order made by the Secretary Forests and Service Tribunal and restore that of Chief Conservator of Forests dated 24‑12‑1991.

30. A.A./2/SCA Appeal accepted.