1994 PLP (C (PLC(CS))

Nemo for Respondents Nos. 2 to

5. Date of hearing: 10th May, 1994. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 challenges the appointment of respondents Nos. 2 to 5 as Tehsildars vide Notification dated 4‑5‑1993 issued by respondent No. 1.

2. The petitioner was appointed‑ as Junior Clerk in employment of respondent No. 1 on 19th November, 1966. He was firstly promoted as Senior Clerk and then as Assistant on 30‑5‑1979. Respondents NOS'. 2 to 5 joined Government service earlier to the petitioner having been appointed as Junior Clerks on 8‑2‑1958, 23‑6‑1960, 15‑11‑1960 and 8‑5‑1961. However, their date of promotion as Assistants is later than that of the petitioner, who ranked senior to them in the seniority list prepared by the Department on 17‑3‑1987.

3. Under the Punjab Revenue Department (Revenue Administration Posts) Rules, 1990 as amended by Notification dated 22‑11‑1992, 17 percent posts of Tehsildars are to be filled in by promotion through selection on merits from amongst subordinate service inter alia Assistants and Senior Scale Stenographers in the office of the Board of Revenue and other offices subordinate to it with three years experience as such.

4. In 1993, some posts of Tehsildars fell vacant. The Board of Revenue consequently directed the Commissioners that the nomination of 5 candidates from each Division alongwith the recommendation of the Deputy Commissioner/Additional Deputy Commissioners be forwarded to the Board for the purposes of selection out of assistants working in the Board of Revenue, the names of the petitioner and respondents Nos.2 to 5 were recommended for appointment. Pursuant to the recommendations made by the Departmental Promotion Committee, the Government of Punjab on 4‑5‑1993 promoted respondents Nos.2 to 5 as Tehsildars to the exclusion of the petitioner, who has now come to this Court by filing this petition.

5. In the report and parawise comments filed by respondent No.l, the facts have not been disputed. It stands admitted that the petitioner as also respondents Nos.2 to 5 being eligible for appointment as Tehsildars were recommended for promotion. The reason given for preferring respondents Nos.2 to 5 as against the petitioner, as stated in the report is that though the petitioner was senior as Assistant to the respondents but as the total length of service of respondents Nos.2 to 5 was more than that of the petitioner, he was not approved for promotion. It has been emphasised that the petitioner has joined the Government services 5/7 years later than respondents Nos.2 to 5.

6. The learned counsel for the petitioner has relied upon section 8 of the Punjab Civil Servants Act, 1974 to contend that the seniority is to be determined on the basis of length of service in a particular cadre and not total service of a Government servant. It is elaborated that there was no justification for ignoring the petitioner and promoting respondents Nos.2 to 5 merely on the ground that their total length of service was greater than that of the petitioner though as Assistant they were junior to the petitioner.

7. Mr. Abdul Sattar Najam, learned Advocate‑General Punjab, who is assisted by Malik Muhammad Suleman, Advocate, has raised a preliminary objection as to the maintainability of this petition on the strength of Article 212 of the Constitution and has further argued that the Department was justified in taking the view that as the total length of service of respondents Nos.2 to 5 was more than that of the petitioner, they should be given preference over him.

8. No one has appeared for respondents Nos.2 to

5. They are, therefore, proceeded against ex parte.

9. So far as preliminary objection raised by the learned Advocate -General is concerned, it is to be seen that in view of proviso to section 4‑B of the Punjab Service Tribunals Act, 1974, no, appeal lies against the decision of a departmental authority on the question of fitness or otherwise of a civil servant to be promoted to a higher post. In the present case, the dispute between the parties is not as regards eligibility of the petitioner but about his suitability or fitness. In these circumstances, as no appeal could be filed before the Service Tribunal, the jurisdiction of this Court to entertain this petition is not barred. (See Iqan Ahmed Khurram v. Government of Pakistan and others (PLD 1980 SC 153) and Fazal Elahi Ejaz and 22 others (PLD 1981 SC 137).

10. As regards merits, according to Punjab Revenue Department (Revenue Administration Posts) Rules, 1990 as amended, the posts of Tehsildar are to be filled in inter alia, by promotion through selection on merits from amongst the subordinate revenue service including Assistants and Senior Scale Stenographers working in the Board of Revenue. Total length of service, therefore, is not one of the considerations mentioned in the Rules for judging the suitability of a candidate to be promoted. The only reason given by respondent No.l for ignoring the petitioner is that respondents Nos.2 to 5 had joined Government service earlier than the petitioner. This ground was not relevant or germane to the issue before the Departmental Promotion Committee. If indeed seniority was to be considered by the Departmental Promotion Committee, then the seniority in the cadre out of which the selection was being made should have been taken into consideration and not total length of Government service. Section 8 of the Punjab Civil Servants Act, 1974 lays down in unmistakable terms that seniority inter se of the civil servants shall be considered with reference to the date of appointment against a particular post. It is in the recognition of this legal position that in the list prepared by the department itself, the petitioner ranked senior to respondents Nos.2 to

5. It is, therefore, not understandable as to how the total length of service could be taken into consideration by the Departmental Promotion Committee. Although generally speaking, this Court would be slow in interfering the selection made by the Departmental Promotion Committee but if the Committee has proceeded on consideration which are totally irrelevant or are not admissible under the law, the selection can be set aside by this Court. In view of what has been stated above, this petition is allowed, the impugned selection and the notification dated 4‑5‑1993 promoting respondents Nos.2 to 5 as Tehsildars is declared to be without lawful authority and of no legal effect, with the result that the matter stands remitted to the Departmental Promotion Committee which shall proceed to decide it afresh in accordance with law and the Rules on the subject. No order as to costs remanded. M.BA./M‑1624/L Case remanded