1977 PLP S (PLC(CS))

FAKHRUDDIN H. SHAIKH (CHAIRMAN).‑The appellant is aggrieved by the promotion of respondent No. 3 as Deputy Director, Agriculture (Research) Both the appellant and respondent No. 3 are employees of Agriculture Department The appellant joined this Department as locust Moqaddam (Class III) in 1943 and was promoted as Assistant Horticulturist in the Research Wing of the Department. Respondent No. 3 entered this Department as Entomological Assistant in 1943 and was later can promoted as Extra Assistant Director of Agriculture in the Extension Wing in 1958. On 2 ‑6‑'973 respondent No. 3 was promote as Deputy Director (Research) by the Government of Baluchistan. The plea of the appellant is that he and respon dent No. 3 belong to different wings and that the latter could not have been promoted and placed in the Research wing. According to him, he himself would have been promoted as Deputy Director (Research), being senior most in the Research wing. The appellant had also filed a representation against the promotion of respondent No. 3 to Government, which was partly accepted, vide letter of services and General Admn. Department dated 19th March 1974 whereby the appellant was also ordered to be promoted as Deputy Director from the same date when the respondent No. 3 was promoted. Accordingly the Department of Agriculture promoted the appellant also as Deputy Director with elect from 26-6‑1973. But still be was not satisfied with the order of the Government and has filed this appeal with the prayer that the promotion order of respondents No. 3 should be cancelled and the post of Deputy Director (Research) should be declared as vacant. It will be appropriate to reproduce the relief sought by the appellant in his appeal, in his own words. It runs as under: "On the grounds stated above, it is prayed, that the absorption of res pondent No. 3 to the post of Deputy Director, Agriculture (Research) be declared as ultra vires the powers of respondent No. 1 and respondent No. 2, and the post be declared as vacant, and that a declaration be made that the appellant is entitled to lee appointed as Deputy Director, Agriculture (Research), having been found fit for such appointment by respondents Nos. 1 and 2, and such other consequential relief be allowed to the appellant as the circumstances of the case may permit." All the 3 respondents have contested the appeal and have filed objections. On behalf of respondents Nos. 1 and 2, a preliminary objection has also been filed challenging the maintainability of this appeal under section 4 of Baluchistan Service Tribunals Act, 1974 (hereafter referred to as the Act). We have heard arguments of the learned Assistant Advocate‑General in support of the objection. He has argued that the fitness or otherwise of a person to hold a particular post or to be promoted to a particular post is beyond the scope of jurisdiction of the Tribunal under section 4 of the Act. "The appellant has challenged the fitness of respondent No. 3 to hold the post of Deputy Director, Agriculture (Research) and as such the plea is hit by the mischief of the proviso (b) to section 4 of the Act. Learned counsel for respondent No. 3 has fully associated with the arguments of the learned Assistant Advocate‑General. The relief sought by the appellant consists of two parts as under: (1) That the absorption of respondent No. 3 to the post of Deputy Director, Agriculture (Research) be declared as ultra vires the powers of respondents Nos. 1 and 2 and the post be declared as vacant: and (2) That a declaration be made that the appellant is entitled to be appointed as Deputy Director, Agriculture (Research). So far as the second part is concerned it is clearly nit by the mischief of proviso (b) (i) of section 4 of the Act, which may be reproduced here for the sake of convenience. (b) No appeal shall lie to a Tribunal against an order or decision of a departmental authority determining‑ (l) the fitness or otherwise of a persons to be appointed to or hold a particular post or to be promoted to a higher post or grads." Learned counsel for the appellant conceded that the second part of the relief falls within the mischief of the above proviso and stated at the bar that be does not press this part of the relief. So far as the first part of the relief is concerned, it has been argued by the learned counsel that the appointment and promotion of respondent No, 3, who belongs to the Extension Wing of the Agriculture Department, as Deputy Director in Research Wing has not been made in the prescribed manner as envisaged by section 2(2) of the Civil Servants Act is as much as it is inconsis tent with the Agriculture Service (Class I) Rules, 1965. Now the Civil Servants Act and the Rules made thereunder, lay down the procedure regarding appointment, promotion etc. of Government servants. Every departure from his procedure on the part of a departmental authority is not subject to the corrective jurisdiction of this Tribunal. Even an illegal or irregular order of a departmental authority shall not be amenable to appeal to this Tribunal, if it falls within the proviso of section 4 of the Act In such case, although the aggrieved party may seek remedy before a civil Court, he will not be entitled to come to the Tribunal. In this view we are supported by the decision of Lahore High Court reported in P L D 1974 Lah 207 which has been relied upon by the learned Assistant Advocate‑General. It has been laid down in the above case that the decision of a competent authority that a civil servant should rot be considered fit for promotion, is covered by the proviso (b) to section 4 of the Act, that is, the Punjab Service Tribunal Act, 1973, and as such the jurisdiction of the Tribunal does nol. extend to it. As section 4 of the Baluchistan Act is identical with section 4 of the Punjab Act, the above observations will apply with equal force to the present case. In our view this principle will also apply to an order whereby a competent authority h is decided that a particular person is fit to hold or to be promoted to a particular post. In the present case the appellant has challenged the order of the Government regarding fitness for and promotion to the post of Deputy Director Agriculture Research) of respondent No. 3 This question beyond the scope of jurisdiction of this Tribunal. Again the claim of the appellant that the post of Deputy Director (Research) may be declared as vacant also does not fall within the definition of terms and conditions of service of a Government servant. This prayer either cannot be granted by this Tribunal to the appellant. For the above reasons we allow the preliminary objections and dismiss this appeal with no order as to costs. MALIK HABIBULLAH KHAN (MEMBERS I agree. MALIK ABDUS SAMAD (MEMBER).‑I agree. Appeal dismissed.