1993 PLP (C (PLC(CS))

2. The relevant facts as are contained in the memo of appeal are that the appellant was originally appointed as Medical Officer in the year 1969 and was subsequently placed in National Pay Scale No.

17. He was promoted and placed in National Pay Scale No. 18 w.e.f. 1‑10‑1974. He attended graded specialist Army Health Services Course in the year 1976 and also passed his M.C.P.S. examination in the year 1978. Respondent No. 3 did his M.B.B.S. in the year 1971 and attended the graded specialist surgery course in the year 1976. He passed his M.C.P.S. examination in the year 1980 and was inducted in service in National Pay Scale No. 17 on 14‑12‑1971 for the first time. He was placed in Grade‑18 on 1‑10‑1974 alongwith the appellant while the respondent No. 4 was appointed as Medical Officer on 30‑7‑1973 and he attended graded specialist surgery course in 1976. He passed his F.C.P.S. examination in the year 1980 and was subsequently promoted and placed in Grade No. 18 w.e.f. 13‑3‑1975 and in Grade‑19 w.e.f. 6‑12‑1981. The appellant claims himself senior to the respondents Nos. 3 and 4 and brought a review petition against the impugned order before the Government. But he was not successful and his review petition was dismissed. Feeling himself aggrieved by the orders of promotion and up-gradation of respondents Nos. 3 and 4 and the dismissal of his review petition, the appellant brought the present appeal at this forum on the following grounds, inter alias‑‑ (i) that he was senior to respondents Nos. 3 and 4 but his name was not sent up to the Selection Board for being considered for the next higher grade and respondents Nos. 3 and 4 being the junior most officers in the Health Department were illegally promoted in the next higher grade bypassing the appellant. (ii) Since the Health Department had no its service rules to be followed in matters of promotion and recruitments, the selection of respondents Nos. 3 and 4 should have taken place under the service rules of the Health Department of the Punjab Province of Pakistan or under Article 25 of the K.S.R. as was then applicable in case of promotions in the Health Department of Azad Kashmir. But neither the service rules of Punjab nor Article 25 was followed while making the selection of the respondents. (iii) that the appellant filed a review petition against the impugned order before the Chief Executive but he did not hear that petition himself and made over the same to Mr. Tariq Masood, a Secretary of the Government for hearing and disposal. Mr. Tariq Masood dismissed his petition despite the fact that the appellant through a written application had expressed his dissatisfaction as to the hearing of his petition by the said officer. Mr. Tariq Masood relied upon Rule 2(h) of Azad Jammu and Kashmir Civil Servants Appointment and Conditions of Service Rules, 1977 and based his decision on the ground that the respondents Nos. 3 and 4 were having a separate functional unit in the Health Department and as such their seniority was not combined with the officers of the Health Department in the general cadre. The appellant and the respondents were in the same cadre of service and without a notification of the Government their cadre of service could not be changed or separated. The seniority of specialist doctors was also determined in the general cadre of the officers of Health Department. (iv) that the respondents Nos. 3 and 4 do not fulfil the qualifications for further promotion as against the appellant even if the departmental service rules of Health Department enforced after making of the impugned orders of up-gradation of respondents Nos. 3 and 4 are followed.

3. It is prayed by the appellant that after setting aside the impugned orders of up-gradation, he may be placed in National Pay Scale No. 19.

4. The above-noted appeal was admitted for regular hearing by a short order of this Tribunal dated 17‑12‑1985. The respondents were called upon to submit their written objections if any as to maintainability of the present appeal. The written statement on behalf of respondents Nos. 1 to 4 was filed with this Tribunal on 10‑5‑1986 and it was submitted by them that the appellant had himself given up the field of medical specialist and accepted the health field for himself and was, therefore, not entitled to promotion in specialist field of service. The appellant by admitting himself that he and the respondent No. 3 were placed in National Pay Scale No. 18 on one and the same date has waived the claim of this seniority over respondent No.

3. The respondents Nos. 3 and 4 were having separate field of service and the appellant being in general cadre of service held no right of promotion in the cadre of specialist.

5. We have carefully considered the arguments as were submitted in writing by the learned counsel of each party. We have also examined the record of Selection Board and the correspondence relating to the creation and up-gradation of two posts of Surgical Specialists in the Health Department which are at present held by the respondents Nos. 3 and

4. It is argued on behalf of the appellant that he was senior to the respondents Nos. 3 and 4 and was fulfilling all the necessary qualifications for being appointed as a specialist doctor in the Health Department. But he was illegally dropped from the merit list and his case was not sent up to the Selection Board for being considered to the higher grade and post alongwith the respondents Nos. 3 and

4. It is further submitted on behalf of the appellant that in Azad Kash Services principle of parity with the services of Punjab is followed and in absence of the Departmental Service Rules, the Departmental Service Rules of Punjab should have been followed while making the selection of respondents Nos. 3 and

4. But the Punjab Service Rules pertaining to Health Department were not followed by the Selection Board and even the procedure laid down by Article 25, K.S.R. Vol. II was also ignored. According to the learned counsel for the appellant, the appellant is an aggrieved person and he was deprived of his legitimate rights of promotion to the next higher grade and post.

6. There is nothing to deny this fact that at the relevant time, the appellant was senior to respondents Nos. 3 and 4 according to their entry in Pay Scale No.

18. It is also true that at the relevant time of up-gradation of respondents Nos. 3 and 4, the Health Department of Azad Kashmir Government had not its Departmental Service Rules to suggest the method of promotion and recruitment in the cadre of Gazetted Officers of Health Department. We have gone through the memo of appeal also and we find that the appellant has missed to place certain important facts on the file which were highly relevant for the disposal of his appeal. It is well‑established from the record that both the parties appellant and respondents Nos. 3 and 4 were sent to Pakistan for specialization in the different subjects selected by them. The appellant chose the subject of Army Health whereas the respondents Nos. 3 and 4 did their specialisation in the subject of surgery. The subject of Army Health is not defined anywhere as to what it means and what type of course is prescribed for specialisation in that subject. If it meant to mean an administrative type of course, then of course, the appellant was to be considered for up-gradation alongwith the Medical Officers to be entrusted with the job of administrative Officers in the department and perhaps for this reason, the appellant is at present holding the job of District Health Officer in the Department. But there cannot be two opinions about it that the respondents specialised themselves in the subject which was not chosen by the appellant for rendering his services in that capacity in the department.

7. We have no hesitation to accept this argument addressed on behalf of the appellant that the Health Department was having no service rules to follow in relation to selection of candidates for being placed in higher grade and post. But there must not be any difficulty to understand how a post of surgical specialist should be filled up and what should be the necessary qualifications for such appointments being made in the Department. We have benefited ourselves from the Punjab Service Rules as are being followed there in the Health Department. In Punjab Service Rules, a copy of which has been placed on the file by the appellant, we find two categories of the officers. The officers who are entrusted with the job of administrative nature have been placed in general category while the officers specialised in surgery have been placed in the group of specialists. It follows that there are two functional units in the Health Department of the Punjab and the promotion or the up-gradation of the Officers in one unit cannot take, place by merely following the rules of seniority. In a Madras case reported in AIR 1962 Mad 485 it was held that no civil servant has a claim to ask for promotion as of right, and the giving or refusal of promotion is a matter which is within the exclusive discretionary domain of the executive authorities concerned in the matter. The equality guaranteed under the Constitution cannot take away the right of Government to pick and choose proper persons for employment in Government Service. The act of the Government in not giving promotion to a civil servant does not result in any infringement of his fundamental rights under the Constitution. In a similar case MA. Mogeem v. State of Mysore (AIR 1963 Mys. 219) it was held that among the well‑known attributes of public service, one that is least subject to exception is that no employee can claim as of‑right a promotion from one position to another unless he could do so under a statutory provision or an enforceable condition of service. Ordinarily it would be for the State or the promoting authority to determine such suitability after an assessment of all relevant considerations, such as seniority, competence, rectitude and antecedent official record, none of which is less important than the other, for the preservation of purity and efficiency in public service. The basic or governing consideration in all promotions is that may be shortly described as merit or suitability. Seniority is in substance one of the elements in the assessment of merit. After following the above rule of law, seniority of a civil servant is not the sole factor for granting promotion and it gives little support to the appellant when we find that the promotions were granted to the respondents Nos. 3 and 4 in a separate functional unit. Section 25 of K.S.R. Vol. II also provides the same criteria for granting promotion to a service or class or to a selection category or grade in such service or class. It is provided in clause (a), sub‑clause (i) of the said Article that the promotions in a service shall be made on grounds of merit and ability and shall be subject to the passing of any test that Government may prescribe in that behalf, and seniority would be considered only where the merit and ability are found approximately equal. In the instant case, the appellant without having the qualifications of a Surgical Specialist had no merits and ability for being appointed as Surgical Specialist.

8. At the end of his appeal, it is submitted by the appellant that he fulfilled the requisite qualifications for being promoted and placed in next higher grade or post even under the rules of service of the Health Department as were prepared and enforced subsequent to the issuance of the impugned orders of promotion of respondents Nos. 3 and

4. We are sorry we cannot contribute to this view. The Health Department has adopted the same rules of service as are being followed by the Health Department in the Province of Punjab and the requisite qualifications prescribed in those rules do not recognise the appellant's qualifications for being promoted and appointed as Surgical Specialist. It is argued on behalf of the appellant that the Government must have considered the appellant for higher grade of service after he had done specialisation in a course of administrative nature alongwith the respondents who were benefited with higher grade of pay after they had done their specialisation in surgery. This is a good idea but it is not the function of this Tribunal to make any suggestion to the Government. It involves the financial implication also and the Government alone can consider the service matters of this nature for the ends of justice and fair play in the service structure.

9. It is next argued on behalf of the respondents that the respondents Nos. 3 and 4 after having done their specialisation in surgery were appointed as Surgical Specialist in National Pay Scale No. 18 while the appellant also held that scale of pay on an executive post of District Health Officer. The appellant did not object to their appointment as Surgical Specialist made by a separate order of the Government issued under No. S&GAD.5239‑22, dated 14‑3‑1977. The appellant has brought this appeal after the posts of Surgical Specialist were upgraded in Pay Scale No. 19 and so the impugned orders do not offend the appellant in any way because he had chosen a separate line of service and he had nothing to do with the job of a Surgical Specialist in an hospital. This argument is on all fours with the actual facts of the case and we find no substance in this appeal.

10. For the above reasons, we dismiss this appeal but make no order as to the cost. H.B.T./173/Sr.A Appeal dismissed.