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Case No. 458/206 of 1985, decided on 8th March, 1986.

‑‑‑S. 4‑‑Promotion‑‑Tribunal not debarred to examine if promotion was contrary to rules and to determine validity thereof‑‑Promotion order of competent authority upset by higher authority without any provision of appeal under rules and without opportunity of hearing to promotee‑ Tribunal, in circumstances, accepting appeal and restoring promotion order of competent authority.

Muhammad Aslam v. Government of Punjab 1984 P L C (C.S.) 203; Rustam Ali and others v. Additional Chief Secretary, Government of Punjab 1984 P L C 276; 1984 P L C 247; 1984 P L C 1534; 1981 PLC 398 and 1981 P L C 489 rel.

P L D 1973 Lah. 220; 1979 P L C 466; 1980 S C M R 156 and 1985 PLC (C.S.) 754 ref.

‑‑‑Rr. 2, 7 & 19‑‑Appointment of Jamadar‑‑Within competence of Authority‑‑Appointment by promotion‑‑Contention that in absence of rules governing promotion authority to make promotion vested in local Government being rule‑making authority, repelled‑‑Deputy Commissioner being appointing authority, held, competent to make appointment by promotion in absence of any express provision to the contrary‑‑Home Secretary neither competent authority nor appellate authority in matter of promotion against post of Jamadar‑‑Promotion order passed by Deputy Commissioner and upheld by Commissioner, held, could not legally be upset by Home Secretary.

Asif Saeed Khan Khosa for Appellant.

Aqa Asif Jafery for Respondents.

A.G. Humayun, District Attorney for Department.

.‑‑ The appellant Ghulam Qadir, Jamadar Border Military Police, Dera Ghazi Khan District has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 against the orders, dated 25‑6‑1985 passed by the Home Secretary, Government of the Punjab. The appellant has impleaded the Home Secretary and Faizullah Khan. Dafedar, Border Military Police as Respondent ho_ 1 and Contesting Respondent No.2 respectively.

2. Trough this appeal the appellant Ghulam Qadir has prayed that the impugned order, dated 25‑6‑1985 passed by the Home Secretary may be set aside while restoring the orders, dated 24‑10‑1984 of the Deputy Commissioner and 28‑1‑1985 of the Commissioner, D.G. Khan.

3. Brief facts of the case are that on retirement of Amir Muhammad Khan from the post of Jamadar Buzdar in the Border Military Police of D.G. Khan, a selection committee to scrutinize the record of eligible officials of the B.M.P. was constituted by the Deputy Commissioner, D.G. Khan. The committee consisted of Political Assistant as Chairman and Additional Deputy Commissioner (General) and Risaldar. B.M,p, D.G. Khan as members. The committee interviewed Messrs (i) Faizlllah Khan (respondent No.2), (ii) Altaf Hussain, (iii) Ghulam nadir (appellant). (iv) Muhammad Nawaz and (v) Ghulam Hussain. The committee vide its report, dated 28‑8‑1984 (Annexure 'A' of the Appeal) unanimously recommended the name of Ghulam Qadir (appellant) for promotion as Jamadar. Agreeing with the report of the Selection Committee, the Deputy Commissioner, D.G. Khan promoted the appellant Ghulam Qadir for the post of Jamadar vide order, dated 24‑10‑1984 (Annexure 'B' of the Appeal). The appellant assumed charge of the office of Jamadar Buzdar, on 29‑10‑1984. Aggrieved by the order; of the Deputy Commissioner. Mr. Faizullah Khan (respondent No.2) fled an appeal /representation alongwith Mr. Altaf Hussain before the Commissioner, D.G. Khan Division. The remaining two unsuccessful candidates also preferred appeals. The learned Commissioner, D.G. Khan Division after consideration of Faizullah Khan (respondent No.2) as well as the remaining three unsuccessful persons dismissed the same vide order, dated 28‑1‑1985 (Annexure 'D' of the Appeal). Aggrieved with the orders of the learned Commissioner as well as the learned Deputy Commissioner, D. G. Khan, Faizullah Khan (respondent No.2) filed common appeal before the Home Secretary, Punjab, which was accepted vide orders, dated 25‑6‑1985 (Annexure 'E' of the Appeal). Hence, the appellant Ghulam Qadir filed the instant appeal before the Punjab Service Tribunal because his promotion was upset by the impugned orders of the Home Secretary (respondent No. l).

4. At the time of the agreements, learned counsel for the appellant contended that the Home Secretary was not competent to entertain the appeal against the promotion order passed by the Deputy Commissioner, D . G . Khan and confirmed on departmental appeal by the learned Commissioner, ‑D.G. Khan. The learned counsel for the appellant, added that the appellant was condemned unheard because he was not given the opportunity of well‑settled principles of 'audi alteram partem'. The learned counsel for the appellant further stated that the B.M.P. Act, 1964 and the B.M.P. Rules do not contemplate any appeal or revision and furthermore the respondent Faizullah Khan and other unsuccessful candidates filed time‑barred appeal. The learned counsel for the appellant regarding the jurisdiction of the Tribunal relied upon the case of Ch. Muhammad Aslam v. Government of Punjab 1984 P L C (C.S.) 203 and stressed that the Punjab Service Tribunal was not precluded to examine the valid determination of the impugned orders concerning promotions. Similarly the learned counsel for the appellant cited the cases Rustam All and others v. Additional Chief Secretary, Government of Punjab 1984 P L C 276 and asserted that there was no bar to the Punjab Service Tribunal or promotion was contrary to rules or the validity of the rules was to be examined. Likewise the learned counsel for the appellant cited cases of 1984 P L C 247 and 1984 PLC 1534. The learned counsel for the appellant also cited the cases 19 1 PLC 398 and 489 related to the Border Military Police. The learned counsel for the appellant concluded his arguments while stating that on the merits as well as on the legal issues that instant appeal was fully justified.

5. Learned District Attorney on behalf of the learned Home Secretary, Government of the Punjab (respondent No. l) opposed the appeal and raised the preliminary objections on the ground that under section 21 of the Civil Servants Act where no provision of appeal exists the aggrieved person has to file a representation. The learned District Attorney added that the aggrieved person has to exhaust departmental remedy under section 4 of the Punjab Service Tribunals Act before he can seek remedy from the Punjab Service Tribunal. Learned District Attorney further stated that according to proviso of section 21 of the Civil Servants Act no representation lies in the cases of promotion. The learned District Attorney closed his arguments while stating that fitness or promotion were discretions of the competent authority and vide section 4 of the Punjab Service Tribunals Act the jurisdiction of the Tribunal was expressly barred. The learned District Attorney also relied upon the case P L D 1973 Lah. 220.

6. Learned counsel for Mr. Faizullah Khan (respondent No.2) supporting the arguments of learned District Attorney raised the preliminary objection that the Punjab Service Tribunal had no jurisdiction to interfere with promotion cases and no appeal as such could be entertained by the Tribunal. The learned counsel for the respondent No.2 after raising the preliminary objection quoted 1935 Rules of B_M.P./Baluch Levy. While quoting these rules he elaborated that vide Rule 7 the superintendence and control of the B.M.P./Baluch Levy rests with the Local Government, Deputy Commissioner and the Commandant of the B. M.P. /Baluch Levy. Learned counsel for the respondent No.2 explained that according to proviso of Rule 19 the A Local Government can make rules to regulate terms and conditions of service but so far no rules have been framed. As such in absence of rules no powers are vested and no powers can be exercised. The learned counsel for respondent No.2 stressed that in the absence of the rules the promotions would be done by the Local Government the Home Government. Learned counsel for the respondent No.2 pointed out that vide Rule 2 appointments of Jamadar or Subedar are made by the Deputy Commissioner and the rest by the Commissioner. Learned counsel for the respondent No.2 further stated that Rule 8 governs the promotion but in the event of promotion no 'audi alteram partem' was necessary because it was not an appeal and the Home Secretary was himself competent to determine promotion of respondent No. 2. The learned counsel for respondent No.2 relied upon (a) 1985 PLC (CS) 454, (b) P L D 1979 S C 856, (c) P L D 1981 S C 612. Learned counsel for the respondent No.2 closed his arguments while saying that actually it was a seniority case and offering opportunity of personal hearing was the discretion of the authority. The learned counsel for the respondent No.2 relied on the cases as under:

(i) 1979 P L C 466 (ii) 1980 S C M R 156 (iii) 1985 PLC (CS) 754.

7. We have carefully considered the points so raised by learned counsel for the appellant, Ghulam Qadir, learned District Attorney on behalf of the Home Secretary (respondent No. l) and learned counsel for Faizullah Khan (respondent No.2). We have also consulted the relevant record including the written objections of the respondents.

8. Before we determine the merits and legal issues of the instant appeal it would be necessary to deal with the preliminary objection raised by learned District Attorney on behalf of the Home Secretary (respondent No.l) and learned counsel for Mr. Faizullah Khan (respondent No.2) regarding the jurisdiction of the Punjab Service Tribunal for entertaining this appeal. In this regard it may be stated that the Punjab Service Tribunal has already heard appeals in the case 1981 PLC 398 in the appeal case of Shahid Hassan v. Deputy Commissioner, D.G. Khan and others and 1981 PLC 489 in the appeal case of Arz Muhammad v. D.C., D.G. Khan and others relied upon by learned counsel for the appellant. Similarly the Punjab Service Tribunal is not precluded to examine the validity of promotion as settled in the case of Ch. Muhammad Aslam v. Government of Punjab 1984 PLC (CS) 213. Likewise vide 1984 P L C 243 in the appeal case of Iftikhar Ahmad v. I.‑‑G, of Police and others relied upon by the learned counsel for B the appellant there was no bar for the Punjab Service Tribunal to examine cases of promotion if the promotion was contrary to rules and it was necessary to determine the validity of the rules and promotion thereof.

9. As regards the merits and other legal issues of the appeal it may be stated that the Deputy Commissioner is undisputedly the competent authority for the appointment as well as the promotion of the post of Jamadar, vide Rule 2 of 1935 Rules of the B.M.P./Baluch Levy. Now consistent with our previous decisions cited above we have examined the promotion case of the appellant Faizullah by the Deputy Commissioner, D. G. Khan which was quite judicious because it was unanimously recommended by the Selection Committee after examination of the case of Faizullah (respondent No.2) and four others including the appellant Ghulam Qadir. No matter no departmental appeal was competent against the promotion of the appellant but incidentally the learned Commissioner, 1 . C. Khan Division also confirmed the decision of learned Deputy Commissioner, D.G. Khan in favour of the appellant Ghulam Qadir. So far as the impugned order of the learned Home Secretary (respondent No.l) is concerned it may be stated that in the impugned order, dated 25‑6‑ q85 (Annexure‑E of the Appeal), to start with the learned Home Secretary (respondent No.l) or for that matter the learned counsel for Mr. Faizullah (respondent No. 2) has not explained as under what provision the appeal was entertained by learned Home Secretary and impugned order, dated 25‑6‑1985 was issued. As already stated even the learned Commissioner could not entertain the appeal much less there was any scope for the learned Home Secretary to admit the second appeal for hearing. Besides that the learned Home Secretary in para No. 2 of the impugned order has mentioned that Faizullah Khan, Dafadar, B. M.P. , D. G. Khan (respondent No.2) has filed his appeal against the order, dated 24‑10‑1984 passed by the Deputy Commissioner, D.C. Khan and order, dated 28‑1‑1985 passed by the Commissioner, D . G. Khan but nowhere in the impugned order it is mentioned that the appellant Ghulam Qadir was ever called for hearing of the appeal much less given proper chance of contesting the same. Obviously the appellant Ghulam Qadir was condemned unheard as asserted by learned counsel for the appellant. The impugned order. dated 25‑6‑1985 of learned Home Secretary also indicates that the impugned order was actually a Letter No.HP. 1/84, dated 25‑6‑1985 from the Home Secretary Government of the Punjab to the Commissioner, D.G. Khan with reference to his Letter No.106‑1/82‑11/7693, dated 28‑5‑1985 of the learned Commissioner. As such regardless of the fact that there is no right of departmental appeal in case of promotion much less a right of second appeal. The impugned order is actually a letter of the Home Secretary in reply to a letter of the Commissioner and direction passed in favour of Faizullah (respondent No.2) against the promotion of Ghulam Qadir, appellant, without lending opportunity to the appellant to contest the appeal. There is no force in the argument of the learned counsel for respondent No. 2 that because the Local Government can frame the rules to regulate terms and conditions of service but as no rules stood framed, therefore, by implication the Home Secretary exercises the powers for promotion. As stated above vide Rule 2 of 1935 Rules, the Deputy Commissioner is the appointing authority in cases of Jamadars and obviously it is inclusive of the appointment by promotion in absence of any express provision to the contrary. The learned Home Secretary set aside the order of the learned Deputy Commissioner in the case of hearing of the appeal without claiming that he was the authority to promote instead of the Deputy Commissioner. Evidently without giving chance of personal hearing to the appellant even if for argument sake without conceding the learned Home Secretary was competent to entertain the original or second appeal no such order could be issued without lending opportunity to the appellant for contesting the same. Accordingly we are of the considered opinion that Home Secretary was neither competent to entertain the appeal nor the appeal was heard and disposed of in the proper and legal mane after lending the opportunity to the parties including the appellant.

10. Hence the appeal is accepted and the impugned order is set aside. The promotion order, dated 24‑10‑1984 of the learned Deputy issued in favour of the appellant Ghulam Qadir is maintained Commissioner with the direction that the appellant Ghulam Qadir stands legally promoted as Jamadar, Buzdar B.M.P./Baluch Levy of D.G. Khan District.

A.E. Appeal accepted

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