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Civil Revision No.1040‑D of 1982, decided on 25th May, 1987.

‑‑‑S.4(b)‑‑Civil Procedure Code (V of 1908), S.9‑‑Fitness of a person to be promoted to a higher grade, determination of‑‑Civil Court whether competent to adjudicate‑‑Where a case involved determining fitness of a person to be promoted to a higher grade, such case, held. would fall under S.4(b) of Act IX of 1974 and Civil Court would have jurisdiction to adjudicate thereupon.

‑‑‑R.4‑‑Notification No.S.O.R.III‑6‑3‑73, dated 12‑11‑1974 & Notification NO.S.O.R.111‑6‑3‑73, dated 18‑3‑1975‑‑Memo No.1300‑75/1069‑B(M)III, dated 24‑4‑1975‑‑West Pakistan Tehsildari and Naib‑Tehsildari Service Rules, 1962, para.4‑‑West Pakistan Board of Revenue Act (IX of 1957), S.4(1)‑‑Promotion of Qanungos as Naib‑Tehsildars‑‑Such promotion ordered by Commissioner in derogation of Rules and Instructions of promotions‑‑Power of Board of Revenue to revise illegal order of promotion‑‑Selection and promotion made by Commissioner, himself, held, was illegal because Divisional Selection/ Promotion Committee was the proper forum to order such promotions of which Commissioner of course, was the Chairman‑‑Where act of Commissioner in ordering promotions was beyond precincts of law, Rules and Instructions thereto, such order could be revised by Board of Revenue.

‑‑‑S.115‑‑West Pakistan Board of Revenue Act (IX of 1957), S.4(1)‑‑West Pakistan Tehsildari and Naib‑Tehsildari Service Rules, 1962, para.4‑ Cancellation of promotion orders by Board of Revenue without notice to promotees‑‑Effect‑‑Order of promotion passed by Commissioner in derogation of Rules and Instruction, held, did not vest such promotee with any eight at all‑‑An invalid order could not mature into valid one merely by passage of time‑‑Parties having been heard through their counsel and finding of High Court being in parity with findings of Board of Revenue, orders of two Courts below were set aside by High Court in exercise of revisional jurisdiction.

Ch.Mushtaq Masood for Petitioners.

Malik Muhammad Azam Rasool for Respondents Nos. 19, 21, 22 and 23.

Najam‑uz‑‑Zaman with Asstt. A‑G. with Altaf Muhammad Khan for the State.

Date of hearing: 20th April, 1987.

This civil revision has been filed against a judgment, dated 16‑5‑1982 of the learned Additional District Judge, Lahore, who upheld on appeal the judgment, dated 3‑7‑1980 of the learned Civil Judge decreeing a declaratory suit with consequential relief. The respondents Nos.3 to 23 instituted a suit on 8‑6‑1977 against Government of the Punjab respondent No.1 in the Civil Court at Lahore seeking a declaration to the effect that an order dated 16‑9‑1975 regarding the appointment of respondents Nos.3 to 23 had become final and was legal and an order, dated 11‑1‑1977 passed by respondent No ,.1 was without jurisdiction, illegal, null and void and' inoperative as to the rights of respondents Nos. 3 to 23 as Naib‑Tehsildars/A.C.Os. The plaint was subsequently amended by joining the petitioners and another as defendants. According to the averments in the plaint the respondents Nos.3 to 23 were serving as Qanungos in the Lahore Division. They were selected for appointment as Naib‑Tehsildars by the Commissioner, Lahore Division vide his order, dated 16‑9‑1975. The plaintiffs/respondents took over as Naib‑Tehsildars/A.C.Os, in 1975 pursuant to the order of the Commissioner and went on performing their duty satisfactorily. The order of the Commissioner stood fully implemented and acted upon. The Member, Board of Revenue on a representation of some aggrieved Qanungos by his order, dated 11‑1‑1977 set aside the order, dated 16th September, 1975 of the Commissioner, Lahore Division promoting the plaintiffs/ respondents by selection, directing the Commissioner to make fresh appointments by considering the other officials who were also eligible for promotion. The Member, Board of Revenue had also added to his order that the plaintiffs/ respondents did not fulfil the condition of age limit as such their selection and appointment stood vitiated on that account. Under the law no representation lay to any higher authority against the promotion or determination of the fitness of a person to be promoted or appointed to a particular post, so the decision taken on a representation was illegal alongwith the representation. According to the law the order of promotion and appointment as made by the Commissioner was final being implemented and acted upon. The plaintiffs/ respondents were given no notice of the representation. They were not heard by the Member, Board of Revenue. The order of the Member, Board of Revenue had affected the plaintiffs/respondents' interest adversely. According to the latest instructions the appointing authority was competent to relax the condition of age while considering the matter. The Member, Board of Revenue relied upon the instructions, dated 5‑1s‑1975 which had since been superseded by the subsequent instructions, dated 7‑2‑1976. Consequently, the order, dated 11‑1‑1977 of the Member, Board of Revenue was mis‑conceived' and was liable to be set aside. The appointments were made by the Commissioner in the public interest, he could do it being an appointing authority himself.

The respondent No.1, petitioners and another controverted the suit by raising the preliminary objections as to the maintainability of the suit as well as cause of action and the jurisdiction of the Civil Court and as to the merits maintaining that the selection made by the Commissioner was not valid as that was against the provisions of Punjab Civil Servants Act, 1974 and the Punjab Civil Servants (Appointments". and Conditions of Service) Rules, 1974. According to the Rules the selection as to the appointment was initially to be made by the Divisional Selection/Promotion Committee. The Commissioner was not competent to make the selection by himself alone. The selection of the plaintiffs/ respondents being illegal conferred no right upon them. The Board of Revenue was fully competent to set aside the order of the Commissioner in exercise of the powers vesting in that by Section 4(1) of the West Pakistan Board of Revenue Act, 1957. At the relevant time the Commissioner had got no power to relax the Rules. The Government in Services & General Administration Department had in pursuance of the provision of Rule 4 of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974 constituted the Boards/ Committees for making selection to the various posts. The matter was to be referred to the Departmental Promotion Committee but the Commissioner in utter disregard of the instructions issued by the Government passed his order appointing the plaintiffs/ respondents as Naib‑Tehsildars/A.C.Os. The Commissioner, could act as the Chairman but could not alone pass the order.

2. The learned Civil Judge found that the Commissioner had the power to promote Qanungos to the rank of Naib‑Tehsildars/A.C.Os. which he did. The order of the Commissioner was not assailed by an appeal. After a lapse of more than one year the Member, Board of Revenue had no authority to set aside the order on the complaint of some interested persons. The plaintiffs/ respondents were denied the right of being heard although the principles of natural justice required that nobody was to be condemned as unheard. The suit was maintainable and the Civil Court had the jurisdiction to try the suit as the case did not involve the adjudication of terms and conditions of the service but that was a case of promotion. The Commissioner had promoted the plaintiffs/respondents having considered them to be the fit persons for promotion. The case was evidently covered by proviso (b) to section 4 of the Punjab Service Tribunals Act, 1974 which envisaged that no appeal lay to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed or hold a particular post or to be promoted to a higher grade. He relied upon P L D 1976 Lahore 287. The proviso to section 21 which gave a right of appeal or representation in respect of any order relating to the terms and conditions of the service to a civil servant, had specifically barred the jurisdiction of the Service Tribunal from hearing any representation 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. According to the learned Civil Judge the Commissioner had the authority to make selection of the plaintiffs/ respondents and promote them as Naib‑Tehsildars/A.C.Os. from the rank of Qanungos.

No rule provided any appeal against the order of the Commissioner so passed. The Commissioner, Lahore Division had made the appointment of the plaintiffs/ respondents after thorough inquiry and after considering their fitness. The order which had been implemented and acted upon could not be revised or reviewed by the Member, Board of Revenue after about sixteen months. Assuming that an authority did vest in the Member, Board of Revenue, yet the impugned order, dated 11‑1‑1977 was not sustainable because that was passed at the back of the plaintiffs/ respondents who could not have been condemned unheard. The impugned order was passed on consideration of various representations which were made incompetently. The order passed by the Member, Board of Revenue was illegal and without jurisdiction. The law did not confer any right on the Board of Revenue to entertain and consider any representation against the final order of the Commissioner. Consequently, the impugned order was against specific provision of section 21 of the Punjab Civil Servants Act, 1974. The learned Civil Judge decreed the suit as brought with costs vide judgment, dated 3‑7‑1980.

3. Two appeals were filed from the said judgment and decree of the learned Civil Judge‑‑one by the Province of Punjab etc. and the other by the petitioners and another which came to be decided by the learned Additional District Judge, Lahore. He upheld the judgment and decree of the learned Civil Judge and dismissed both the appeals vide his judgment, dated 16‑5‑1982.

4. The learned counsel for the petitioners has contended that it was a case of demotion and reversion from higher rank to a lower rank so the matter appertained to the terms and conditions. The matter was not covered by proviso to section 4 of the Punjab Service Tribunals Act, 1974 as such the civil Court had no jurisdiction. In the event the Service Tribunal under the said Act alone had the jurisdiction. The order of the Commissioner had been acted upon near about two years, therefore, the matter had to be taken to the Service Tribunal. He has cited in support of his submission Mian Aman‑ul‑Mulk v. N.‑W.F.P. through Chief Secretary P L D 1981 Pesh. 1. He has next contended that the Member Board of Revenue had the jurisdiction to entertain a representation under Section 21 of the Punjab Civil Servants Act, 1974 against an erroneous order of selection of the Naib‑Tehsildars as made by the Commissioner. The learned counsel for the petitioners has relied upon an order refusing leave to appeal in C.P.S.L.A. No.62 of 1984 Lal Din and others v. Commissioner, Lahore Division, in this decision the Departmental Selection Committee examined the suitability of certain patwaris for bringing them on the selection list of Qanungos as promotees which selection list was accepted by the Deputy Commissioner. On the representation of the two respondents the Commissioner found that the consideration was not given to the eligibility of the two respondents for promotion. The matter was remanded to the District Selection Committee for reconsidering the matter afresh. The order of the Commissioner was challenged in a writ petition but without any success. The learned Supreme Court in the petition for leave to appeal observed that section 21 of the Punjab Civil Servants Act, 1974 did provide a right of representation where no right of appeal or review existed. In the representation that was not so much the matter of suitability which was agitated as the fact that no selection as required under the Rules was at all made inasmuch as the Committee as a body did not interview the candidates and one of them was not at all considered by the Committee for promotion. In the face of such omission that could not be said that he had been found unsuitable. Another patwari was ignored from the selection under a sensitive impression that his eye‑sight was weak. According to the Commissioner the defects in the selection entitled the said two persons to have their matter reconsidered. The learned Supreme Court was also of opinion that, that was a case of mere remand in which the petitioners claim was to be considered over again so no injustice had been done to them and they otherwise could not protect their selection which had been made ignoring altogether a person entitled to be considered. The violation of rule in the case of one and the violation of principle of natural justice in the case of the petitioners had to be remedied and the remand was to be a proper method of doing so. According to the learned counsel the judgments of both the Courts below are liable to be set aside being erroneous as to the correct application of the law.

5. The learned counsel for respondents Nos.19,21,22 and 23 has supported the decision of both the Courts below. He has referred to Rule 4 of the West Pakistan Tehsildari & Naib‑Tehsildari Service Rules, 1962 in order to say that the Commissioner was the appointing authority. The Rule so far as is being relevant is reproduced here:‑

"4. Appointing Authority.‑‑Recruitment to the service shall be made‑‑

(a) in the case of appointments to the posts of Naib‑Tehsildars, by the Commissioner in charge of the Division where the vacancies in such posts occur subject to such directions as the Member Revenue may give generally or in any specific case;"

The next submission of the learned counsel is that no representation was competent to the Member, Board of Revenue respondent No.1 under Section 21 of the Punjab Civil Servants Act, 1974 by virtue of the proviso to subsection (2) of Section 21. The referred to provision is reproduced here:‑

"21. Right of appeal or representation .........................

(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 Governor, 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."

The third submission of the learned counsel is that even if a representation to respondent No.1 Board of Revenue was competent the same could not be accepted to the very detriment of the respondents without hearing them. The last submission of the learned counsel is that since the order of the Commissioner determined the fitness of the respondents to be promoted as Naib‑Tehsildars and the order of the Member, Board of Revenue upsetting the Promotion fell under proviso (b) to Section 4 of the Punjab Service Tribunals Act, 1974 which says:

that no appeal shall lie to a 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 in view of which the Civil Court had the jurisdiction to entertain the matter.

6. Nobody has appeared to address on behalf of respondent Nos.3 to 18 & 20.

7. The arguments of the learned Assistant Advocate‑General are the same as advanced by the learned counsel for the petitioners.

8. The contention of the learned counsel for the petitioners that only the Punjab Service Tribunal was competent to be moved and the Civil Court had no jurisdiction is not well founded as it is a case which clearly falls under Section 4 subsection (b) of the Punjab Service Tribunal Act, 1974. It is not a case of demotion as involving the term and conditions of service as suggested by the learned counsel for the petitioners. It is simplicitor a case of determining the fitness of person to be promoted to a higher grade which fitness has been annulled by the Member Board of Revenue because according to him the selection had not been made in accordance with law.

9. The text of the order dated 11‑1‑1977 of the Board of Revenue proceeds with that a number of representations had been made to the Board of Revenue against the order dated 16‑9‑1975: passed by the Commissioner Lahore Division whereby twenty two Qanungos were selected as Naib‑Tehsildars under Rule 5(1)(b) of the West Pakistan Tehsildari and Naib‑Tehsildari Service Rules, 1962 in consideration of which representations the order dated 16‑9‑1975 suffered from the two defects,

"(i) Commissioner, Lahore Division, was not competent to grant relaxation of age in favour of Messrs Inayat Ullah, Abdul Majid, Bashir Ahmad, Ghulam Rasool, Muhammad Jamil, Nawab Din, Muhammad Hussain and Nawazish Ali Shah, in view of the embargo imposed by the Government of the Punjab in the Services, General Administration and Information Department vide their letter NO.SOR.11(S&GAD)4‑37/74, dated 17‑7‑1975, read with their letter No.SORI(S&GAD) 9‑20/75, dated 5‑11‑1975;

(ii) The promotion case should have been processed through the Departmental Promotion Committee, as required in Government of the Punjab Services, General Administration Department's Notification No.SOR‑III‑6‑3/73 dated 12‑11‑1974, read with their Notification No.SOR‑III‑6‑3/73, dated 18‑3‑1975."

Consequently the Member, Board of Revenue directed that the entire case was to be placed before the Departmental Promotion Committee which was to consider the cases denovo seniority‑wise of all such officers who were eligible for promotion. The promotion was to follow the prescribed procedure. If the Committee was of the view that a particular rule relating to upper age limit was to be relaxed then the permission was to be sought from the competent authority to do so before any promotion was ordered.

Now the question which necessarily arises and about which both the Courts below have expressed their opinion is that whether the representation to the Member, Board of Revenue was competent and the Member, Board of Revenue had the power to revise the order dated 16‑9‑1975 of the Commissioner. In this case the Commissioner without caring for the Rules and instructions issued thereunder as has been pointed out by the Member, Board of Revenue proceeded to select and promote the Qanungos as Naib‑Tehsildars/A.C.Os. According to the West Pakistan Tehsildari and Naib‑Tehsildari Service Rules framed in 1962 no doubt the Rules designated the Commissioner as an appointing authority in the case of the appointments to the posts of Naib‑Tehsildars subject to such directions as the Member, Board of Revenue could give generally or in any specific case yet the law obtaining on the subject under‑went a change with the framing of the Punjab Civil Servants Act, 1974 and the Punjab Civil Servants (Appointments and Condition of Service) Rules, 1974 which Rules required the selection of the appointees to be made by a Departmental Promotion Committee. The Government in Services & General Administration Department had in pursuance of the provision of Rule 4 of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974 constituted the Board/ Committees for making selection to the various posts vide its Notification NO.SOR.III‑6‑3‑73 dated 12‑11‑1974. The Departmental Selection Committees were also authorised to act as Departmental Promotion Committees for respective posts and in Grades 1 to 15 vide Notification No.SOR‑III‑6‑3‑73 dated 18‑3‑1975 of the said department. The composition of the Divisional Selection /Promotion Committee per memo No.1300‑75/1069‑B(M)III dated 22‑4‑1975 issued by the Punjab Government consisted of the Commissioner as Chairman, the Additions Commissioner (Revenue) as Member and the Assistant to Commissioner concerned dealing with Establishment as Member so it is obvious that the selection and promotion made by the Commissioner was basically illegal because he by himself alone could not effect the same as he had done. Without expressing any opinion as to the applicability of subsection (2) to Section 21 of the Punjab Civil Servants Act, 1974 to the present case in the matter of representation it is being held that since the act of the Commissioner was entirely beyond the precincts of the law, Rules and instructions thereto, therefore, such an order could be revised by the Member, Board of Revenue whether on representation or of his own in his powers of superintendance under section 4(1) of the West Pakistan Board of Revenue Act, 1957 read with para 4 of the West Pakistan Tehsildari and Naib‑Tehsildari Service Rules, 1962 where h was authorised to issue directions generally or in any specific case which can be construed as directions before or after the event. So far as is concerned that no notice was given to the promotees the notice as a matter of course should have been given but on that score the order of the Member Board of Revenue cannot be turned down for two reasons:‑

(a) It can be safely said that such an order as passed by the Commissioner vested them with no right at all and an invalid order could not mature into a valid one merely by the passage of time;

(b) The respondents who are interested in this case have been heard through their counsel now; and the finding of this Court is in parity therewith the finding of the Member, Board of Revenue; as a result whereof this revision petition is accepted and the findings of both the Courts below on issues Nos.3 and 4 as to whether the order dated 16‑9‑1975 is final and irrevocable and validly effective and whether the order dated 11‑1‑1977 is without jurisdiction are reversed since both the Courts below have acted in the exercise of their jurisdiction illegally by failing to apply the correct law. Resultantly the suit as brought is dismissed. In the circumstances there is no order as to costs.

A.A. H‑24/L.

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