1991 PLP (C (PLC(CS))

The instant appeal is directed against the Government Notification No.S&GAD-A/1 (27)/SO-V/88, dated 18-7-1988 by which according to appellant respondent No.3 Mr.Khalil Ahmad Oureshi was promoted as Additional Chief Secretary (General) and was placed in BPS-21.

2. The relevant facts of the case to be briefly stated are that the appellant claims himself to be a senior most officer of Azad Jammu and Kashmir Government who held the job of a Secretary to the Government in BPS-20 at the relevant time, when the respondent No.3 was promoted and placed in BPS-21. The appellant further claims that there existed no rules of procedure for filling up the post of Additional Chief Secretary (General) still a Selection Board was specially constituted for the purpose and without considering the appellant, the promotion of respondent No .3 was ordered by respondent No.1 violating the conditions precedent to the selection of a candidate from among the Secretaries. The appellant also feels aggrieved that under the Government directive issued under NoAdmin.A-27(46)/84, dated 20-6-1984 no vacancy was to be filled up in absence of Departmental Service Rules but while making the impugned promotion, said directive was also ignored.

3. The appellant's prayer is that the impugned Notification be set aside and the Azad Jammu and Kashmir Government respondent No.1 be directed to first frame the rules for promotion to the post of Additional Chief Secretary (General) in B-21 and thereafter to fill the post in question, after considering the merits and suitability of the appellant for the job.

4. We have heard Khawaja Abdul Ghani, learned counsel for the appellant and have also carefully examined the relevant service record maintained in the office of Secretary S&GAD. 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 statutory provision or an enforceable condition of service. Ordinarily it would be for the State or the promoting authority to determine such suitability after assessment of all relevant considerations such as seniority, competence, rectitude and antecedent official records, none of which is less important than other for the preservation of purity and efficiency in public service. It is perhaps this reason that Service Tribunals Act, 1975 under Section 4(b) has granted a limited jurisdiction to this Tribunal that an appeal shall not lie to this Tribunal 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 grade. The case of the appellant is discussed below.

5. The impugned Government Notification is reproduced below for appreciation:- "Notification No.S&GAD/A-1(27)/S.O.(V)/88. The President, Azad Jammu and Kashmir, on the recommendations of Selection Board, is pleased to accord sanction to the promotion of Mr.Khalil Ahmad Oureshi, Secretary Services and General Administration Department to BPS-21.

2. The President, Azad Jammu and Kashmir is further pleased to order that the promotion of Mr.Khalil Ahmad Oureshi shall take effect against the post of Financial Commissioner created vide Order No. Admin/A 1(37)/S.O.(V)/88, dated 5-6-1988.

3. This Notification will take effect from 1-5-1988. (Sd.) (Muhammad Naseer Jahangeeri), Under Secretary Services (V)." A perusal of the above Notification shows that the promotion of respondent No.3 has been made against the post of Financial Commissioner with effect from 1-5 1988 and not Additional Chief Secretary (General). Under the Land Revenue Act 1887, as is enforced in the State of Jammu and Kashmir, the post of Financial Commissioner belongs to ex-cadre post Department. Therefore, it is proved that the post of Financial Commissioner is an ex-cadre post and the appellant does not have any locus standi to impugne the order of promotion of respondent No.3 against that post. Appointment to ex-cadre posts cannot be claimed as a matter of right on the basis of seniority. 1976 P L C (CST)

7. The post of Financial Commissioner is, no doubt, a selection grade post and it is to be filled up on assessment of merit by competent Authority and not on seniority alone. Although in the instant case the seniority among the Secretaries inter se is not stated to have been determined as yet. It is for the respondent Government to make rules for filling up the vacancies in various grades of service and it is also in its competence to care for its directive issued from time to time with regard to selection and appointments in the rank of officers. Prima facie, in view of the limited jurisdiction granted by the Service Tribunal Act, this Tribunal does not have any jurisdiction to ask the respondent Government to first prepare the rules and then to (ill up the vacancies. As far as we know, the posts carrying pay scales from 16 and above are filled up on the recommendation of Selection Board as has been done in the present case.

5. It is the established right of Government to raise the efficiency of the services and for this purpose to devise ways and means for selection of personnel from time to time in accordance with its views for assessing such efficiency and capability. In a similar case brought in a writ petition entitled S. Zahid Ali v. The Pakistan Ordnance Factories Board, Wah Cantt. and another before the Lahore High Court, Lahore reported in P L D 1971 Lah. 229, it was observed by the learned Judges of that High Court that the procedure adopted for selection for promotion may differ from institution to institution and department to department. Some employers may choose a viva voce test for judging merit; others may like to combine a personal interview with a written test; still others might like to add a practical test also. Whatever form the procedure takes so long as the end to be achieved is the selection of the required number of persons on the basis of relative merit, the mere fact that the procedure employed differs would not alter the basis. There is no rule of law that any employee has a vested right in the mode of selection or that having once determined a particular mode, the Government is powerless if it wants to change it for another method which it thinks to be more efficacious. Therefore, we feel well-advised that the appeal is not competent and not maintainable before this Tribunal. The appeal is, I therefore, dismissed in limine. M.Y.H./77/Sr.A Appeal dismissed.