1989 PLP (C (PLC(CS))

3. Mr. Abdul Rashid Abbasi learned counsel for the appellant in replication submitted that the appeal was not time-barred because there is nothing on record to show that the impugned order dated 25-4-1984 was communicated to the appellant on 10-7-1984. According to the learned counsel, the word "him" used in Section 4 of the Service Tribunal Act in context of the communication of the order sought to be challenged has a reference to the person of the officer concerned which means that the limitation would start from the day an individual personally gets the information of an order. Leaving of an order in the office of an individual does not amount to the communication of the order. The counsel for the appellant maintained that objection of the respondent that the appeal is not competent because the order of promotion not being challenged, is not valid. The promotion was based on the admission of officers to Select List `A'. Unless the name of an officer is brought on the Select List, he has no right to challenge an order of promotion passed in consequences of the admission of such person to the list. If the contention of the appellant is accepted with regard to the admission of officers to Select List `A' the whole superstructure shall automatically fall or become in-effective to the extent, the list is set aside or amended.

4. In the appeal of Sheikh Muhammad Khalil, only one point has been canvassed that the order of admission in the list, between Sheikh Muhammad Khalil and Sardar Muhammad Khurshid is not proper. On the basis of seniority the name of appellant should have preceded the name of respondent Muhammad Khurshid.

5. In the appeal of Muhammad Rafiq Mughal, Khawaja Muhammad Saeed, Advocate contended that passing of the Bachelor of Art Examinations earlier could not. be a ground to prefer a junior person for admission to Select List `A'. According to him, it was illegal on the part of the department, the Government or the Selection Authority to ignore the officers who were actually graduate at the time of preparation of Select List `A' and had not qualified the Bachelor of Art Examination in 1980. He contended that action of the authority amounted to the denial of right of promotion, which could be considered by the Tribunal. He referred to 1981 P L C (C.S.) 422, 1981 P L C (C.S.) 209 and 1980 P L C (C.S.)

356. Sardar Rafiq Mahmood Khan, Advocate pleaded that seniority as Tehsildar cannot be a ground for admission to Select List `A'. The merit and ability prevails in such a case. He maintained that a person who graduated prior to 1980 was definitely more capable and suitable for promotion than the appellant, who qualified the examination in 1984. In our view, the following points need determination: -- (a) Whether the appeal of Sardar Muhammad Anwar Khan is within time? (b) Whether Muhammad Anwar Khan was qualified for the post of Extra Assistant Commissioner under the rules and had provided the due proof of his qualification at the time of consideration of the matter by the Selection Board. (c) Whether the action of Selection Board, whereby Tehsildars having graduated in 1980 or earlier were considered at the time of preparation of the Select List `A' is justified? (d) Whether the order of priority between Sardar Khurshid and Sh. Khalil Ahmad is justified.

6. The perusal of appeal of Muhammad Anwar Khan shows that the order passed on his review petition was received in his office on 10-7-1984, when he was holding the post of Tehsildar Settlement Muzaffarabad. A note by Muhammad Fazal Khan Naib-Tehsildar was recorded or the same date, which is as under: -- A further note by appellant is as under: - In the memorandum of appeal, para. 2, reads as follows: - The learned counsel, Mr. Abdul Rashid Abbasi argued that note of Naib Tehsildar shows that the appellant was on tour. We have examined the contents of the memorandum of appeal, wherein the appellant mentioned that information of order dated 8-7-1984 was received by him on 26-7-1984. He has not explained the non-service of impugned order in any other way but stressed that note recorded by Tehsildar and Naib-Tehsildar on the order dated 8-7-1984 should be construed to mean that Tehsildar remained on tour upto 26-7-1984, the date recorded by him on the order. As already mentioned, the learned counsel laid much stress on the word "him" used in section

5. He is of the opinion that provisions of C.P.C. or any other enactment or rule regarding the service of process or document, did not apply and only the personal service can be considered for the purpose of limitation. No proof according to him appears on the file to show that the appellant was aware of the order dated 8-7-1984 on any date, prior to 26-7-1984. Therefore, the appeal may be treated in time.

7. Raja Mumtaz Hussain Rathore contended that remedy by way of review was not available to the appellant, therefore, the time taken by the appellant in pursuing the remedy by way of review cannot be excluded and the appeal should have been filed before the Tribunal, within 30 days from the date of passing of original order dated 25-4-1984. According to Sardar Rafiq Mahmood, the information should be taken to have been received by the appellant on 10-7-1984 when the order of rejection of review petition was received in the office of Tehsildar. Mr. Rashid Abbasi who was required to put in replication to the written arguments contended that right of review was available under Civil Servants Appeals Rules, 1982, therefore, the appeal is in time.

8. There is no provision regarding the mode of communication of an order in the relevant service rules, the Appeal Rules or the Civil Servants Act 1976, therefore, we have to fall back to the well-recognized mode of service provided in the Code of Civil Procedure 1908. Under the provisions of C.P.C., the service of process can be made in different ways. Service in person, therefore, cannot be considered a condition, precedent for assuming that the order was duly communicated. The requirement of the law is that an order or document should come to the notice of concerned person. Delivery of document in person is not a condition. So far as the knowledge of Mr. Muhammad Anwar regarding the order dated 7-8-1984 is concerned, it is to be gathered from the circumstances attending the situation. If he was at the Headquarter and the letter was delivered in his office, the knowledge will be presumed from the date of delivery. If he was not at the Headquarter then, the knowledge will be presumed from the date of his return to Headquarter, unless he proves that it was not shown to him prior upto the date indicated by him in the note on the order. There is no proof adduced by the appellant that he was absent from the Headquarter from 10-7-1984 to 25-7 1984. Even there is no pleading by him to this effect. When a question of limitation is involved, the appellant while preferring an appeal should explain each day from the date of the receipt of the letter in his office to the date, he claims the knowledge and the circumstances in which he could not get the information. No circumstances have been incorporated in the pleadings. After the receipt of document, in the office of an officer, the initial presumption would be that the letter was received by the officer. If such an officer claims the lack of knowledge he must establish it by evidence, even before that by express pleading. Nobody can create any evidence in his own favour, in the way the note is recorded on the order dated 8-7-1984. At any rate it is not a pleading, on the subject. The assertion that the appellate received the information on 26-7-1984, is not a pleading. We had requisitioned certain documents, from the department about the tour of the officer but found them contradictory, moreover, in absence of pleading, we cannot resort to the evidence on the point. In these circumstances, it is held that the appeal against order dated 8-7-1984 is not in time. It appears from the record that Mr. Muhammad Anwar Khan had passed the BA. Examination and result card was issued to him on 31-1-1984. Record shows that he had made some applications to the authorities, intimating his result to the authorities concerned. The degree was however, not issued in his favour, by that time. The date of degree indicated in the photostat copy is 31-3 1985. The Selection Board appears to have considered only such Tehsildars for admission to list `A' who had qualified the B.A. Examination, in 1980 or earlier. The provisions relevant for the admission in list `A' embodied in the rule 5, of the Azad Jammu and Kashmir EA.C. (Recruitment and promotion rules) 1980, for the sake of convenience, are reproduced below: -- "

5. Method of Recruitment.--(I) All the posts of Extra-Assistant Commissioners shall, be tilled by promotion. (2) The vacancies by promotion shall be filled from among members of the sub-cadres of the Azad Jammu and Kashmir Tehsildars whose names appear in select list `A' to be maintained in accordance with the provisions of clause (a) of sub-rule (3) in proportion of the strength of such sub-cadres. (3) Government shall maintain: -- (a) a select list `A' in form I annexed to these rules, which shall be prepared in consultation with the Selection Board of the Tehsildars, who are considered fit for promotion to the service: Provided that only Tehsildars of outstanding ability and merit shall be considered for promotion to the service; (4) Selection of officers for being brought on the select lists referred to in sub-rule (3) shall be strictly on merit with particular reference to fitness for higher responsibilities. (5) No entry shall be made in the select list to be maintained under the provisions of sub-rule (3)(a) of this rule nor shall an entry appearing therein be removed or the order in which the names in Select List be altered without the previous approval of the Commission. The working paper, forwarded by Secretary Revenue shows that officers at S.Nos. 1 to 8 had passed the BA. Examination, prior to the promulgation of the rules. Out of these 8 officers, 7 had already worked on the post of Extra-Assistant Commissioner or equivalent although on temporary basis. Sardar Muhammad Khurshid has not been Extra-Assistant Commissioner, prior to the selection but he is shown to have passed BA. Examination, in January, 1974, much before the appellants. Muhammad Rafiq and Sheikh Khalil were also considered by the Selection Board but the former was not admitted to the list. The jurisdiction of the Tribunal in the matter of selection for promotion is limited. Only in the cases of the violation of rules or the mala fide exercise of powers, by the Selection Authority, the Tribunal can interfere. The proceedings of Selection Board can be set aside and direction can be made for reconsideration of the matter, in the aforesaid circumstances. In the instant case, we have to consider the spirit of the rules. As per proviso to clause (a) of sub-rule 3 of Rule 5, reproduced in the earlier part of the judgment, only the Tehsildars of outstanding ability shall be considered for promotion to the service, as Extra-Assistant Commissioner. This rule empowers the authority to leave out of consideration such officers, who in its opinion are not of outstanding ability and merit. It appears that the Selection Board was of the opinion that officers not having passed the B.A. Examination, upto the enforcement of Extra-Assistant Commissioner Rule could not be treated to have outstanding capability. This criteria adopted by the Selection Board is not violative of rules. The rules do not provide that all persons holding the post of Tehsildar shall be considered by the Selection Authority, rather the outstanding ability and merit is a condition precedent for such consideration. In the opinion of the Selection Authority, graduation before the promulgation of rule is outstanding ability and merit. The person who without requirement of rules acquired the higher qualification, have been treated as possessing more ability and merit than those who entered the service earlier but did not care to improve the qualification. The phraseology used in the proviso to, clause (a) of sub-rule (3) of Rule 5, leaves it open for the Selection Authority to impose certain conditions, even before the consideration of officers, for the selection. Another aspect is also important that the vacancies, which occurred immediately after the promulgation of rules and before the selection were filled in by temporary appointment of some officers, who were graduates. The officers, who were not graduates, could have not been appointed, even on ad hoc basis, prior to their having passed the BA. Examination. This is another ground of preference of the respondents. Had the Selection Authority taken the steps, immediately after the enforcement of the rules, only those officers, who are respondent, in the present case, could have been considered and the others were to be automatically left out of the consideration, for lack of the qualification, prescribed by rules. If the action of Selection Authority was delayed, by 4 years, for one reason or the other, it had still the discretion to prefer the officers, who were qualified in 1980, at the time of enforcement of rules, for the retrospective promotion. It can thus leave aside who were not qualified at that time, because they cannot be given retrospective promotion. The select list should have been prepared immediately after the promulgation of rules, so that the vacancies falling vacant at the time of enforcement of rules or those occurring immediately thereafter could be filled in. If the Selection was delayed, it should not adversely effect the right of those persons, who were qualified at the appropriate time, by this inclusion of others, qualifying later. The tt1irci aspect is the fitness for higher responsibility as provided by sub-rule (4). The yardstick to measure the fitness is again not provided. The selection authority as well as the Government appear to have rightly taken the aspect of early qualification as a basis for consideration. A person, who voluntarily acquires the qualification without compulsion of rules is certainly better than a person, who attaches no qualification, or is unable to have the better qualification. It is lawful for the Government to make the retrospective promotion to the post, which could not be properly filled in upto the end of 1983. Only such persons could have been considered by the Selection Authority, who were qualified at that time. The Selection Authority determined the suitability on the basis of qualification to enable the Government to make even a retrospective promotion, to which the person already qualified had a right for consideration. Another provision appearing in sub-rule (6) shows that the appointment of persons to the service shall be made in the order, in which the names appear in the select list. This provision again empowers the Selection Authority to place the names of more suitable persons, earlier in the list, than those, who are less suitable, although the later may also be suitable for promotion. The provision for assigning any order, in the list also shows that the Selection Authority has wide discretion in preparing the list. The seniority etc. finds no place in the rules, for consideration in the matter of selection, for the post. The service record of Muhammad Anwar and Rafiq Mughal appellants is not otherwise very much meritorious that they should be given preference over the respondents. It was argued that the Selection Authority had not considered this aspect. It may be noted that before granting any relief to any appellant, it is necessary for the Tribunal to take into consideration all the aspects, specially, the Annual Confidential Reports and Service Record. We cannot shut our eyes to the record, which should have been considered by the selection authority. If on the basis of record, a person does not deserve preference, the mere fact that record was not considered by the departmental authority will not result in the reversal of the order or proceeding of the lower authority. The Tribunal as a Court of appeal, has all the powers vested in the lower authority. The relief is not to be granted on mere technicalities. The appellants, before us were not confirmed even as Tehsildars for a long time because they had not acquired the departmental examination. Even, this aspect shows that the appellants were not having the outstanding ability and merit. This institution is an Administrative Tribunal. It cannot ignore the record. 6 So far as the matter of preference of Muhammad Khurshid over Sheikh Khalil is concerned, it is again a matter to be determined by the Selection Authority. The Selection Board has to prepare the list on the basis of merit and ability and the order in the list should conform the merit and not the seniority. The seniority does not find a place, in the rules, for consideration as a factor, for admission to select list. As upshot of the above discussion, the appeals are devoid of any force and are therefore, dismissed. In view of the circumstances of the case, we pass no order as to the costs. S.O./69/Sr. A Appeals dismissed.