' SYED MANZOOR HUSSAIN GILANL J.---This appeal, with the leave of the Court, is filed against the judgment passed by the Service Tribunal of Azad Jammu and Kashmir on 27-3-2003, in Service Appeal No,558 of 2001.
2. An appeal was filed by respondent No,1 Kaneez Akhtar, against the Notification No{{URDU TEXT}}/1621-30/2001, dated 8=6-2001, which was later on amended through a corrigendum order dated 19-9-2001.
3. The facts which culminated into the present appeal are that the appellants and the pro forma- respondents (out of whom respondents Nos.5,6,7, 9 and 10 are transposed as appellants vide order of the Court dated 2-4-2004), were inducted as Senior Teacheresses (B-16) according to the rules, in the service of the Education Department of Azad Janunu and Kashmir Government. They were promoted to selection grade B-18 vide order dated 29-5-1984 w,e,f, 12-1-1983. Upon restructuring of the Education Department, the 4-tier service structure was introduced vide Government Notification No .FD/R/4318-4418/91, dated. 12-5-1991. The appellants and the pro forma-respondents were promoted to B-18 w,e,f, 12-12-1990, vide notification dated 12-8-1991. They were further promoted to B-19 vide notification dated 3-12-2001. Respondent No,1 was promoted to B-18 vide notification dated 5-5-1994 w,e,f, 12-12-1990. A notification was subsequently issued on 22-11-2000 stipulating the regular promotion of a few officers, including respondent No,1, to the post of Principal Higher Secondary School/Principal Elementary College w,e,f, 3-11-1994, subject to the condition that the aforesaid promotion shall not affect the seniority of any other senior officer. A seniority list of the officers of grade B-18 of the Education Department was thereafter issued on 8- 8-2001. The date of its issuance was, however, inadvertently printed as 8-6-2001, which was subsequently corrected through the notification dated 19-9-2001. This seniority list was challenged by respondent No,1 before the Service Tribunal through Service Appeal No,558 of 2001, on 5-11-2001.
The appeal was accepted by the Service Tribunal through the impugned judgment declaring respondent No,1 as senior in grade B-18 to the appellants and pro forma-respondents.
4. The learned Advocates for the parties after addressing tile arguments at Bar, also filed their written arguments in support of their contentions.
5. The thrust of the arguments of the learned Advocate for the appellants and pro forma- respondents is that the Service Tribunal has misread and misinterpreted the notification dated 12- 5-1991, regarding the introduction of 4-tier structure for school teachers of the Education Department, and that the notification dated 12-8-1992, whereby the appellants and pro forma- respondents are promoted to grade B-18, on the recommendation of the Selection Board, has been left out from consideration. According to the learned Advocate the above misreading and non- reading of the notification has resulted into miscarriage of justice and rendered the structure of the Education Department ineffective. The learned Advocate has contended that the Service Tribunal is wrong to hold that the notification has conferred financial benefits only, not promotions, although, according to the learned Advocate, the notifications clearly speak and use the word "promotion".
According to him, the Service Tribunal could not hold otherwise, except as is visualized by the notifications. He contended that the Service Tribunal has, in utter disregard of the provisions of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, construed the above referred law and rules. He also contended that the matter stood concluded in the year 1992, which was not challenged by the respondent No,1, hence the notification issued in her favour on 22-10-2000, does not alter the position. Moresp, the order dated 22-11-2000 specifically stipulates that alleged promotion shall not affect the seniority of the other officers. It is contended that the Service Tribunal also filed to take notice of a subsequent fact, whereby the appellants are promoted in grade B-19, w,e,f, 1-1-1998, while respondent is promoted in B-19, w,e,f, 22-3-2000 and this notification has also not been challenged. The learned Advocate has referred to a plethora of legal precedents, the relevant of which, if needed, shall be referred at appropriate stage.
6. The learned Advocates appearing for the respondents have defended the judgment of the Service Tribunal. The crux of their arguments is that although the scheme of 4-tier structure is not disputed and the consequent promotion of the appellants, pro forma-respondents and respondent No,1 (answering respondent), is also not disputed, but the case of respondent No,1 is that, she along with two others was later on substantively promoted to the post of Principal, Govt.
Elementary College/D. E.
0. (B-18), w,e,f, 31-10-1994, vide notification dated 3-11-2000. Her case is that, at the time of promotion of the answering respondent, Some of the appellants and pro forma-respondents were only B.Ed., while the others were not possessing the qualification of M.A./M.Sc. 2nd Division, which is required under the Azad Jammu and Kashmir School Cadre Service Rules, 1989, as amended on 18- 5-1994 for such promotion, on account of which, they could not be considered for regular promotion to grade B-18. Reliance is placed on the case titled Syed Imdad Ali Shah and 59 others v.
Azad Govt. And 8 others 2003 PLC (C.S.) 1537. According to the learned Advocate, respondent No,1 is wrongly placed at serial No,21 of the seniority list, issued on 8-6-2001, while the appellants and other respondents are shown at serial Nos.3 to 20, although they were not substantively promoted to grade B-18 on regular basis. It is contended that the regular promotion of the answering respondent, vide notification dated 22-11-2000, is not challenged by any of the contesting parties, hence it would amount to have been accepted on account of which the judgment of the Service Tribunal is not open to challenge. The contention of the learned Advocate is that, even a void ab initio order has got to be vacated, otherwise, it operates. The learned Advocate relied upon the cases reported as Govt. Of the Punjab through Secretary Service, Punjab, Lahore and 4 others v.
Muhammad Awais Shahid and 4 others (1991 SCMR 696), Abdul Matin Khan and 2 others v. N.-W.F.P.
Through Chief Secretary and 2 others (PLD 1993 SC 187), Muhammad Ilyas Khan and 5 others v.
Sardar Muhammad Hafeez Khan and 4 others (2002 PLC (C.S.) 1282) and Sardar Muhammad Aziz Khan v. Messrs United Kashmir Flour Mills (Pvt.) Ltd. Through Chief Executive and another (PLD 2004 SC (AJ&K) 1).
7. According to the learned Advocate as the 4-tier structure notification did not provide any rule of its own, hence normal rules applicable in the matter governed the field, under which a person regularly promoted to a particular post, ranks senior to those who are not regularly promoted.
According to the learned Advocate, the 4-tier structure notification was like a selection grade or move over, which cannot be deemed as a regular promotion, hence seniority does not accrue from it.
8. After going through the written arguments, crux of which is stated above, we have perused the record, and gone through the relevant notifications, rules and the precedents relied upon by the learned Advocates for the parties.
9. The only point for resolution is as to whether the appointment of appellants and pro forma- respondents to the grades visualized by 4-tier Government notification dated 12-5-1991 amounts to promotion or not; and if not, whether the appointment of respondent No,1 as Principal Higher Secondary School etc. Vide notification dated 22-11-2000 is a regular promotion and seniority of officers in grade B-18 of the Education Department shall be reckoned from this date i,e, 22-11-2000 or not?
10. For resolution of this point, it is necessary to reproduce the notification dated 12-5-1991, which is as under: "Azad Government of the State of Jammu and Kashmir, Finance Department "Muzaffarabad" dated: 12-5-1991 NOTIFICATION.
No,FD/R/4318-4418/91. The President of Azad Jammu and Kashmir has been pleased to approve re- organization of school teachers cadre (from BS-17 to BS-20) under the 4-tier structure in the ratio of 1:15:34:50 for BS-20, 19, 18, 17 respectively from 12-12-1990 as detailed below: BS-20 BS-19 BS-18 BS-17 Total 6 95 216 317 634
2. Consequently the following number of teachers are upgraded to BS-20,BS-19 and BS-18:-- BS-20 BS-19 BS-18 5 92 182
3. The above rank structure shall be subject to the following conditions:--
(i) It shall be governed by such recruitment rules as framed/shall be framed from time to time for filling up the posts by promotion or initial recruitment as prescribed in the said rules. The promotions against the upgraded posts would be made strictly in accordance with the Service Rules.
(ii) All the present incumbents working in different grades may continue to be called as such for the time being unless different designations are notified for the posts in para. 2 above.
(iii) The Subject/discipline-wise/post-wise distribution/placement of posts in accordance with this reorganization shall be made in due course.
(iv) Yardstick of work-load for different categories of school teachers will be insured in such a way that no additional teaching posts are required to be created as a result of this reorganization.
4. Arrears will be paid after 1st week of June, 1991 but before Eid-ul-Azha, Pay/Allowances for the month of June, 91 would be paid in July 1991 and no pay-advance is allowed for Eid.
(Sd.) (Abdul Rauf Khan) Deputy Secretary Finance (Regulations) (underling is ours)"
11. The notification dated 22-11-2000, under which respondent No,1 claims seniority over the others is also required to be reproduced, which is as under:-- {{URDU TEXT}}
12. As stated above, the appellants and pro forma-respondents were promoted by the Government to grade B-18 against the post upgraded through the aforesaid 4-tier structure vide notification dated 12-8-1991, w,e,f, 12-12-1990. Respondents No,1 was also promoted to grade 18 w,e,f, 12-12-1990 under the same structure. Through the notification dated 3-12-2001, the appellants and pro forma- respondents were further promoted to B-19 on the recommendations of the Selection Board No,1 under 4-tier structure w,e,f, 1-1-1998, 29-6-1999 and 1-1-2000. Respondents No,1 was also promoted to BS-19 under the aforesaid notification w,e,f, 22-3-2000.
13. Para. 2 of the notification dated 12-5-1991 states that number of the posts of school teachers upgraded to BS-20, 19 and 18. Sub-para. (i) of para. 3 of the notification postulates that the "promotion" against the "upgraded" posts would be made strictly in accordance with the service rules. The spirit of the above notification is that a number of the posts of the school teachers is specified to be upgraded. The appointments of the persons against the upgraded posts are left to be decided under the rules regulating the promotions or initial appointments. The contesting parties are appointed to the upgraded posts by promotion on the recommendation of the relevant selection board. Thus, the appointments of the persons under the above scheme is promotion against the upgraded posts of the school teachers.
14. The word "upgradation" used in the notification significantly implies reference to the rules regulating the upgradation of the posts, called as the Azad Jammu and Kashmir Upgradation of Posts. Rules, 1984. Under these rules, when a post is upgraded, the existing post stands abolished and the new post in higher grade is created. There can be no automatic upgradation of any incumbent to the upgraded post but the appointment against the posts is to be made in accordance with the prescribed procedure, laid down in the relevant rules. The relevant selection board has to consider the suitability of the candidates for appointment against the upgraded posts, and it is on the recommendation of that selection board that the competent authority orders the A appointment.
15. Once a person is recommended for appointment against an upgraded post, it amounts to promotion, whether he is formally posted against an assignment or not. The posting is a procedure which follows appointment, whether by promotion or direct recruitment. In the case in hand, the notification does not visualize the posting against any assignment of the Education Department, after promotion to the higher grade. Once a person is promoted to the higher grade, he can be posted against any post or assignment equal to that grade, in the Education Department, in accordance with the rules regulating the posting against the relevant assignment or post.
16. Rules to which the respondents refer, are the Azad Jammu and Kashmir School Cadre Service Rules, 1989, as amended on 18-5-1994. The scheme of the amended. Rules provides the method of appointment, authority competent to make appointment and qualification for such appointment.
The positions stated by the rules are, Director Public Instruction, Divisional Director/Directress, Deputy Director/Directress, Deputy Education Officer, Principal Higher Secondary Schools/Elementary Colleges, Headmaster/Headmistress, Deputy District Education Officer, Subject Specialist Elementary College, and Higher Secondary Schools. The qualification of M.A./M.Sc. 2nd division with B. Ed. Or equivalent is provided under the above rules fore appointment to the post of Deputy Director/Directress, D.E.O., Principal Higher Secondary School and the Headmaster/Headmistress.
17. What is perceived and appears reasonable and just interpretation of the rules, is that only a person possessing the grade and the qualification mentioned in the rules for a post, can be appointed against it. It does not mean that a person promoted to the higher grade under 4-tier structure can be deemed as substantively promoted only when he is appointed against any of the posts referred above. The promotion is a matter different than posting. A person possessing prescribed qualification and relevant grade can be appointed against any of the above assignments, but no such requirement is for promotion to the grade visualized by the 4-tier structure, except the criteria mentioned in the notification and determination of fitness by the selection board. Faced with similar proposition, the Supreme Court of Pakistan in the case reported as Govt. Of the Punjab through Secretary Services, Punjab, Lahore and 4 others v. Muhammad Awais Shahid and 4 others 1991 SCMR 696, where it was confronted with a provision which allowed 50% of regular strength of the Civil Judges to be in BS-18, while the post of Civil Judge is ordinarily in BS-17, and certain percentage of the posts of District and Sessions Judges to be in BS-20, which is ordinarily in BS-19. A question arose, whether the higher pay scale was available automatically to the senior most or any element of selection was involved therein. It was held that:- ".Under the existing rules consistently practised thatwherever there is a change of grade or post for the better, there is an element of selection involved that is promotion and it is not earned automatically, but under an order of the competent authority to be passed after due consideration on the comparative suitability and the entitlement of those incumbents."
18. This view was reiterated by the Supreme Court of Pakistan in another case reported as Abdul Matin Khan and 2 others v. N.-W.F.P. Through Chief Secretary and 2 others (PLD 1993 SC 187).
19. Every step in a higher position, ordered on the recommendation of the competent authority is a promotion, while appointment against a particular assignment or post is a posting of a person possessing required qualification for that post.
20. We cannot lose sight of the fact that the competent authority has itself stipulated in the notification dated 12-11-2000, that this notification shall not affect the seniority of any other officer/officers senior to respondent No,1, who is eligible to be promoted to the post of Principal under the School Cadre Service Rules, 1994. It vividly clarifies the position that the respondent or for that matter, others listed in that notification, are chosen to be posted as such, out of many eligible incumbents, but this would not affect the seniority of those, who are not so chosen or posted as such. This notification simply appears to be putting a feather in the cap of respondent No,1, to be called as Principal or Deputy Director, as the case may be, and nothing beyond that. She still remains one out of those who are promoted to the higher grade under the 4-tier structure, howsoever, designated.
21. Viewing the case from another angle, the promotion of the appellants, pro forma-respondents and the contesting respondent is made on 12-8-1992, w,e,f, 12-12-1990, while the rule prescribing the qualification for appointment to the post of Principal Higher Secondary School etc. Are made in 1994. When the promotions under 4-tier structure were made in the higher grades, Azad Jammu and Kashmir Education Department Service Rules, 1984 were in force, which did not contain any such qualification for posting as Deputy Director or Principal etc. It provided only the selection on merit-cum-seniority and fitness from amongst the officers holding particular posts specified under the rules. The amended rules of 1994 provide the 2nd Division M.A./M.Sc. For appointment against these positions.
22. The Court cannot lose sight of another aspect of the case, that under section 9 of the Civil Servants Act, 1976, every civil servant is liable to serve anywhere in any post under the Government, irrespective of the grade, he possesses. But that does not mean that if a particular criteria is laid down for posting against a particular assignment that should be ignored. What we mean is that, respondent No,1 is chosen as a civil servant to be appointed as Principal or Deputy Director, as the case may be, in view of the prescribed qualification, otherwise there was no impediment in the way of the Government to appoint any other person qualified under the rules to be appointed or designated as such.
23. Plethora of case-law referred by the learned Advocates for the parties in their written arguments is based on hypothetical arguments regarding the promotion and posting. The matter is very simple, which has unnecessarily been made complicated by the Service Tribunal adopting far-fetched and unwarranted interpretation.
' In view of above discussion, while accepting the appeal, the order passed by the Service Tribunal on 27-3-2003, is hereby vacated and the appeal filed before the Service Tribunal is dismissed with costs.