1993 PLP (C (PLC(CS))

Raja Muhammad Hanif Khan for Respondents Nos. 3 to

5. Date of hearing: 12th December, 1992. BASHARAT AHMAD SHAIKH, J: ‑‑Through this appeal, by leave of the Court, two Sub‑Inspectors of Police, Muhammad Bashir Khan and Muhammad Rafique Khan, seek reversal of the order passed by the Serviced Tribunal on 27th of July, 1992, whereby two separate appeals filed by them before the aforesaid Tribunal were dismissed. In the appeals before the Service Tribunal the order of promotion of respondents Khurshid‑ul‑Hassan and Abdul Rauf Khan was sought to be vacated and it had also been prayed that the aforesaid appellants may be declared to have been retrospectively promoted as Inspectors of Police. The appeals were dismissed by the Service Tribunal without going into the merits on a technical ground that the appellants had not availed the departmental remedy through appeal or representation before filing appeal before the Tribunal.

2. The Tribunal repelled the objection that the appeals were not maintainable in light of proviso (b) of subsection (1) of section 4 of the Service Tribunal Act, 1975 which lays down that no appeal lies to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be promoted to a higher grade. The Tribunal held that if a civil servant feels aggrieved ,that he was not considered for promotion although he had a right for being so considered on the ground that he was duly qualified for promotion he could file an appeal before the Service Tribunal. The Tribunal expressed the view that although no appeal lies to the Tribunal against an order determining the fitness of a civil servant, an appeal lies against an order of promotion where the civil servant feels aggrieved that he was not considered. We may usefully reproduce the view taken by the Tribunal: "

But the law so far developed on this point is that appeals against the orders of promotion made by a Departmental Authority by which another civil servant feels himself aggrieved for not being considered for promotion alongwith the promotees are also admitted in this Tribunal for regular hearing if such appeals are found incompetent otherwise. As is provided in Civil Servants Act, 1976‑promotion is also one of the terms and conditions of service of a civil servant and breach thereof is undoubtedly an infringement of his right to be considered for promotion to the next higher post and grade. Hence, a civil servant who is duly qualified for his promotion to the next higher post and grade at the event of not being considered for promotion by his Departmental Authority must firstly avail of his departmental remedy before the next higher Authority failing which his appeal at this forum will be meriting dismissal for being incompetent."

3. The view taken by the Service Tribunal reflects the settled law that the bar contained in proviso (b) of section 4(1) of the Service Tribunals Act that no appeal lies to the Service Tribunal against an order or decision determining the fitness or otherwise of a person to be promoted to a higher grade applies only to a case in which a decision or order has been passed to the effect that a particular person is not fit for promotion. It does not extend to a case where fitness has not been examined at all. It is therefore that Courts have taken the consistent view that appeal lies in such a situation. In this respect it would be useful to reproduce a portion of judgment of Supreme Court of Pakistan in Mrs. M.N. Arshad v. Miss Naeema Khan PLD 1990 SC 612 wherein this provision was analysed. Speaking for the Court Ajmal Mian, J. observed in paragraph 8 of the report: "

8. It was contended that in view of clause (b) of subsection (1) of section 4 of the Service Tribunals Act, 1973, no appeal lies 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. We may observe that in the present case, the Tribunal has not held that respondent No. 1 is entitled to hold or to be promoted to a particular post. The Tribunal has recorded findings of facts to the effect that the Departmental Promotion Committee was not constituted in accordance with the Rules and, therefore, the decision taken by it was not legal and that respondent No. 1's case was not properly considered. In our view, the Tribunal has jurisdiction to go into the above questions. We may observe that the Tribunal cannot decide the question of fitness referred to in the above provision of the Service Tribunals Act, but it has jurisdiction, to examine the questions, whether the Departmental Promotion Committee was constituted in accordance with the relevant rules and whether the cases of the civil servants concerned were properly considered in terms thereof."

4. It was contended on behalf of the appellants by Sardar Rafique Mahmood Khan that no departmental remedy was available to the appellants and, therefore, the Service Tribunal was in error in dismissing the appeal filed by the appellants on the ground that they failed to avail the remedy through appeal or representation before the next higher authority. It was submitted by the learned counsel that the Service Tribunal did not point out the remedy which was available to the appellants. On the other hand the learned counsel for the private respondents, Raja Muhammad Hanif Khan, fully supported the view taken by the Service Tribunal and contended that there is a clear bar that an appeal does, not lie against an order by which the fitness or otherwise of a person is determined and if by any process of interpretation an appeal can be filed in such a matter then a representation is equally competent. The learned Advocate‑General and Raja Muhammad Hanif Khan did not point any provision from the Police Act or Rules giving right to a person whose name is not included in the `F list to file an appeal or representation. However, they relied on section 21 of the Civil Servants Act. Section 21 is to the following effect:‑‑ "

21. Right of Appeal or Representation.‑‑‑(1) Where a right to prefer an appeal or apply for review in respect of any order relating to the terms and conditions of his service is allowed to a civil servant by any rules applicable to him, such appeal or application shall, except as may otherwise be prescribed, be made within sixty days of the communication to him of such order. (2) Where no provision for appeal or review exists in the rules in respect of any order, a civil servant aggrieved by any such order may, except where such order is made by the Government, within sixty days of the communication to him of such order, make a representation against it to the authority next above the authority which made the order: Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade."

5. The legal position, as enunciated by this Court in Azad Government of the State of J&K v. Muhammad Rafique (Civil Appeal No. 22 of 1992, decided on 16th November, 1992 (1993 PLC (C.S.) 286)), is that all Police Officers are "civil servants" within the meaning of Civil Servants Act and this Act is applicable to them in the matters which are not covered by the Police Act. Thus, section 21, reproduced above, was clearly applicable to the present situation.

6. However, Sardar Rafique Mahmood Khan contended that even if section 21 may be found to be applicable no representation could be made by the appellants because of the overriding provision contained in proviso to subsection (2). After giving due consideration to this contention we are bf the view that proviso relied upon by Sardar Rafique Mahmood Khan is not applicable to the present case. The appellants have throughout been contending in the pleadings and during arguments that their names were not brought under consideration when selection was being made. It follows that their suitability had not been determined at all and this is the ground on which the appeals filed by the appellants in the Service Tribunal were held to be maintainable. The appellants have not challenged an order or decision by which they had been found unsuitable to be selected for promotion as Inspectors. Their case is that a right had vested in them on the basis the claims put forward by them that they should have been considered for selection to the posts of Inspectors. The proviso under examination bars the filing of a representation only in respect of matters relating to the determination of fitness. A case in which a person has not been considered at all and his fitness has thus not been determined is not covered by the mischief of aforesaid proviso. Therefore, the appellants could file a representation against the order which was subsequently challenged by them in the Service Tribunal.

7. It follows that the appellants did not avail the departmental remedy available to them. Thus in light of proviso (a) of section 4(1) of the Service Tribunals Act the appellants were debarred from filing appeals before the Service Tribunal against the order against which they failed to represent. Thus no valid objection can be taken to the order of the Service Tribunal and this appeal stands dismissed. A.A./376/SC.A ?????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.