1. SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN). -This service appeal under section 4 of Azad Jammu & Kashmir Service Tribunal Act has been preferred by Mr. Sabir Hussain Khan against the order of Government respondent No. 1 whereby he was reverted from the post of Section Officer to that of, Assistant in the Civil Secretariat.
2. Briefly stated the facts giving rise to this appeal are that the appellant who was an Assistant in the Development Section of the Civil Secretariat of Azad Jammu 8t Kashmir was promoted to the post of Section Officer subject to the confirmation by the Public Service Commission by Government respondent No. 1 vide its Order No. 26697-702/76, dated 29-12-1976 which is reproduced below .- The appellant while working on his new appointment was deputed along with some other Section Officers to undergo a training course at the Central Secretariat Training Institute, Rawalpindi by the Government vide its order No. Admin/3042-39/77 dated 12-2-1977 which he could not complete successfully and failed in, the examination held at the Institute. Government respondent No. 1 later on reverted the appellant to his original post of Assistant on the grounds that his appointment - was on ad hoc basis and that he was declared unsuccessful in that examination held by the said Institute vide its order No. Admin/15908-16/77 dated 14-12-1977 which reads as under :- Feeling aggrieved the appellant filed a review petition against the order of his reversion before the Government respondent but the same was dismissed. Hence this appeal.
3. The appellant in his memorandum of appeal has challenged the impugned order of his reversion on the following grounds:-
(a) That his promotion to the post of Section Officer was not on ad hoc basis as the Prime Minister while accepting his appeal filed against the order of promotion of an Assistant Junior to him to the post of Section Officer has ordered the same to be made on regular basis but contrary to his order and without his approval the condition of his promotion being subject to confirmation by the Public Service Com--mission was illegally incorporated in his letter of appointment by the issuing authority and that he had made a written representation, to the competent authority for removal of such a condition from his appointment letter.
(b) That his promotion was not made conditional on him undergoing any training course or passing any examination with the result that he could not be reverted on account of having failed in the examination held by the said Central Secretariat Training Institute Rawalpindi.
(c) That many Section Officers including juniors to him have been retained by the Government notwithstanding the fact that they have not received any training or passed examination which fact renders the impugned order of his reversion unlawful being discriminatory and mala fide.
4. The appellant on the above basis has prayed that the impugned order of his reversion be declared unlawful, illegal and ineffective as against his rights and that he be declared to be still holding the post of Section Officer.
5. The ex parte proceedings were taken against respondents as they failed to appear in spite of service of notice of this appeal.
6. We have heard the learned counsel for the parties and have also gone through the record of the case as well as personal file of the appellant made available to us for perusal by the Service and General Administration Department.
7. The main question, in our view, on which mostly depends the decision of this appeal is the determination of the nature of the promotion of appellant to the post of Section Officer from which he was reverted I.e., as to whether the said promotion of appellant was on regular basis or was only an ad hoc one. Before we proceed to the examine this question it would be advantageous to make references to the provisions of relevant law and rules governing the appointments and promotions of civil servants on regular and ad hoc basis. Under section 49 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 an appointment of the persons to the services and their terms and conditions of services are to be determined and regulated by law. The law regulating the appointment to, and the terms and conditions of the persons in the service of the State of Jammu & Kashmir employed in connection with the affairs of the Government and to provide for matters connected there--with or ancillary thereto is contained in the Azad Jammu & Kashmir Civil Servants Act, 1976 (hereinafter referred to an Act). Section 2 of the said Act defines an ad hoc appointment as follows:- "'Ad hoc appointment' means appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment pending recruitment in accordance with such method."
8. Similarly there is snottier provision contained in clause 2 of the above-mentioned section of the Act which determines, the appointment on regular basis and reads as under:- "2. For the purpose of this Act, an appointment whether by promotion or otherwise, shall he deemed to have been made on regular basis if it is made in the prescribed manner."
9. According to section 4 of the Act appointments to Civil Service of the Azad Jammu & Kashmir on civil posts in connection with the affairs of the Government are to be made in the prescribed manner by the Government or by a person authorised by it in that behalf. Thus in order to determine the nature of the promotion of the appellant we have to see as to what was the prescribed method of appointment by promotion to the post of Section Officer at the relevant time.
10. According to clause (b) (i) of section 2 of the Act prescribed means prescribed by rules and under
(j) of the same clause rules means the rules made or deemed to have been made under the Act.
11. The Government in exercise of the powers conferred upon it by section 58 of the Azad Jammu & Kashmir Interim Constitution Act, 1975 has made rules for the transaction of its business which are called Azad Government of the stat of Jammu & Kashmir Rules of Business, 1975, section 20 of the said Rules Empowers the Government to constitute one or more Selection 1. Boards and specify the appointments and promotions to posts other than those to be made on the advice of the Public Service Commission, to be made, on the advice of such Selection Boards and exercising powers so conferred the Government constituted a Selection Board for the selection of the persons for posts of Section Officers in the Civil Secretariat vide its order No. Admin/141616-80/75, dated 27-12-1975, which was later on amended vide order No. Admin/16701-60/76, dated 2-8-1976. It may not be out of place here to mention that till the proclamation of the Azad Jammu and Kashmir Public Service Commission Ordinance, 1978 and making of the rules called Azad Jammu and Kashmir Public Service Commission (Functions) Rules, 1478 it was not necessary to consult the Public Service Commission in matters of appointments and promotions to post as no matter was specified under any rules, law and regulation where it was obligatory to consult the Public Service Commission under section 19 of the said Rules of Business. Thus at the relevant time the prescribed method for the appointment to the posts of Section Officers was the appointment in consultation with and on the advice of the Selection Board referred to above as the same was constituted under the rules which would be deemed to have been made under the Act in view of the provisions contained in its clause (2) of section 23 which reads as under "(2) Any rules, regulations, orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act shall, in so far as such rules, regulations, orders or instructions are not inconsistent with the provisions of this Act, and shall be deemed to be made under this Act."
12. In view of the above provisions of law the appointment whether by initial recruitment or by promotion, made in accordance with the prescribed method of recruitment on regular basis whereas that not so made is ad hoc one. When the appointment by promotion of the appellant to the post of Section Officer is seen in light of above definition as contained in the Act and the method prescribed by rules in force at the time for the appointment to the posts of Section Officer there remains no room for doubt that it was on ad hoc basis and not regular one. The promotion under consideration was made by the Government vide its order dated 29-12-1976 without the consultation of Selection Board constituted for the purpose and consequently having been not made in accordance with the prescribed manner was on ad hoc basis. Even from the contents of the letter of appointment of the appellant as Section Officer it is quite clear that his promotion was not made on substantive and regular basis as the same was subject to the confirmation by the Public Service Commission.
13. After having determined the nature of the promotion of the appellant to the post of Section Officer from which reversion is impugned we now propose to consider and examine the contentions of the appellant raised in his memorandum of appeal and during the course of his arguments. His first contention is that the Prime Minister by accepting his appeal against an order of promotion of one Mr. Abdul Rauf to the post of Section Officer had made an order of his regular promotion and appointment to the post of Section Officer but the issuing authority contrary to order of (Prime Minister) and without his approval had illegally and without authority made his promotion conditional on the confirmation by the Public Service Commission in the letter of his appointment by promotion. With a view to ascertaining the correctness or otherwise of this allegation of the appellant we examined the relevant file of the Services and General Administration Department and found the same to be factually incorrect. The fact of the matter is that the Prime Minister had never accepted the appeal of the appellant in the sense that the promotion order under appeal was never set aside and what the Prime Minister had done was simply this that he made a remark in his order given in respect of the appeal of the appellant that if Mr. Abdul Rauf was not temporarily promoted on the basis of the result of examination held by the Public Service Commission, then the appellant being senior to him had preferential entitlement to it and the Chief Secretary was directed to examine the case of the appellant also for the promotion to the post of Section Officer. Perhaps in the light of these remarks of the Prime Minister the appellant was promoted to the post of Section Officer on ad hoc basis against a vacancy which was then lying vacant. It may also be mentioned here that pro--motion impugned in the appeal before Prime Minister was temporary one and not on regular basis. Apart from the above-stated factual position regarding the order of the Prime Minister the promotion of the appellant in our opinion would have remained on ad hoc basis even if it would not have been subjected to the confirmation by the Public Service Commission because, as stated earlier, it was not made through the Selection Board as required by the rules in force at the relevant time.
14. The next contention of the appellant is that his promotion was not made subject to his undergoing any training at the General Secretariat Training Institute, Rawalpindi or passing the examination held by it as was the case with other Section Officers' who were deputed along with him for undergoing the training at the said Institute, and as such his reversion to the post of Assistant being unwarranted by the terms and conditions of his appointment to the post of Section Officer is illegal. This contention is also not helpful to the appellant. It is, no doubt, correct that there is nothing in the order of the promotion of the appellant from which it could be inferred that his continuation as Section Officer depended on his undergoing any training course, or on his being successful in the examination held at the Central Secretariat Training Institute, Rawalpindi. His promotion was simply made subject to confirmation by the Public Service Commission but despite this fact the appellant, in our view was liable to be reverted by the Government on his original post without notice because of the ad hoc, nature of his promotion, under the prevalent law. Section 11 of the Act envisages that a civil servant appointed to a higher post or grade on ad hoc and officiating basis shall be liable to reversion to his lower post or grade without notice. Similarly under rule 13 (ii) of the Azad Jammu & Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 made under the Act an ad hoc appointment shall terminate on the expiry of 6 months from the date of promotion or on the date regular promotion is ordered, whichever is earlier and according to proviso 5 to sub-rule (2) of rule 23 of the said Rules an ad hoc appointment is made subject to revocation at any time by the competent authority and such as appointment does not confer any right on the person so appointed in the matter of regular appointment to the same post nor the service counts towards seniority in the grade. Thus in view of the above provisions of Act and rules made there under it is abundantly clear that an ad hoc appointment by promotion is merely a stop gap local arrangement which does not confer on its incumbent the same rights as are normal incidence of appointment on regular basis and that such appointment cannot last beyond a specified period and can be undone at any time by the com--petent authority. An ad hoc promotee can be reverted to his original post on which he holds lien without notice and without going through the formalities necessary for the reduction in rank of a Civil Servant appointed on regular and substantive basis. In this view of the matter although, according to terms of his letter of appointment by the promotion the appellant's failure in the examination held at the Central Secretariat Training Institute, Rawalpindi did not necessarily entail his reversion from the post of Section Officer, yet the Government enjoyed full and unfettered powers to effect his reversion to his original post in view of the ad hoc nature of his promotion. If the Government in its desire to raise and maintain a certain level of efficiency and standard in the services considered the successful completion of training at the Central Secretariat Training Institute, Rawalpindi as a minimum criterion for judging and ascertaining the suitability of a Civil Servant for holding the post of Section Officer and by his failure in the examination held by the said Institute the appellant did not come to the expectation of the Government and was found lacking the requisite level of efficiency and ability for continuing to function as Section Officer, then the ample justification of the Government in making the impugned order of his reversion cannot be disputed and made cause of grievance.
15. But at the same time if the impugned reversion of the appellant is the result of the erroneous notion or impression held by the Government that his reversion was a legal and unavoidable consequence of his being unsuccessful in the said examination then we propose to make an observation for the consideration of the Government at the end of this order.
16. Lastly the appellant has contended that some of the Section Officers including junior to him possessing comparatively lesser merit and ability and also having not undergone any training or passed any test or examination are still allowed to continue on their posts and as such the impugned order being discriminatory is unlawful and mala fide. We do not find any substance in this contention of the appellant as well because firstly the appellant did not mention in his memorandum of appeal those Section Officers whom he considers junior to him and who have also not received any training or passed the examination nor pin-pointed them during the counsel of arguments with the result that in the absence of their being a party in the appeal and without hearing them it would be against the settled principles of law and of natural justice to express any opinion about them regarding the contention of the appellant and secondly even if this allegation of the appellant for the sake of arguments is assumed to be correct, the mere fact that some Section Officers junior to the appellant and also having not undergone any training course or passed any examination Are continuing on their posts does not by itself render the impugned order illegal or open to exception. This Tribunal cannot take into consideration the conduct of the Government in allowing some Section Officers to continue on their posts while reverting the appellant as being a creature of special Act. It has to confine itself within the scope and four corners of Azad Jammu and Kashmir Service Tribunal Act. Under section 4 of the said Act, an aggrieved Civil Servant can prefer an appeal only against the final order of Departmental Authority made in respect of the terms and conditions of his service which means that this tribunal can only hear an appeal against such an order of the competent authority which violates or infringes any of the terms and conditions of the Civil Servant. The continuation of some Civil Servants on the posts of Section Officers without entitlement or contrary to rules cannot in any way be deemed to have adversely effected the terms and conditions of the service of the appellant. We have to confine ourselves exclusively to the impugned order with a view to finding out as to whether or not it bad violated any terms and conditions of the service of the appellant and thus the allegation of discrimi--natory treatment meted out to the appellant in the matter of his reversion is quite an irrelevant consideration which falls outside the scope and ambit of this Tribunal for the purpose of the decision of this appeal.
17. The upshot of the above discussion is that the promotion of the appellant to the post of Section Officer being not made in accordance with the method prescribed by the rules in force at the relevant time was an ad hoc one which aid not confer on him any right to continue to hold that post and that he was liable to reversion at any time at the discretion of the competent authority to his original post of Assistant without notice or without going through other formalities necessary to be observed in the case of a promotee on regular basis. As a matter of fact reversion to original post or grade on which one holds lien is one of the terms and conditions of an ad hoc appointment as envisaged by section 11 of the Act.
18. For the foregoing reasons we find no force in this appeal and dismiss it but leave the parties to bear their own costs.
19. Before parting with the case, we, in view of the fact that in his letter of appointment the continuation of the appellant on the post of Section Officer was not made conditional on his passing the examination on the Central Secretariat Training Institute, Rawalpindi, feel inclined to observe that although it was within the competence of the Government to revert the appellant to his original post of Assistant from the promotion given to him on ad hoc basis, yet if his reversion had proceeded exclusively and solely on the mistaken impression or assumption that it was an inevitable necessary consequence of his failure in the said examination and his case was inadver- -tently tagged and dealt with along with those Section Officers whose pro--motions were subject to the successful completion of their training in the said Institute then the Government may like to consider the appellant for the promotion to the post of Section Officer, of course, in accordance with the method prescribed for the purpose.
20. The parties shall be informed of this order.
21. KH. GHULAM QADIR (MEMBER)-I agree.