The captioned appeals by leave of this Court have been filed to assail the judgment of the Service Tribunal dated 16-7-2001 whereby two appeals, one filed by Dr. Abdul Ghaffar Sulehria and the other by Dr. Robina Qamar Qureshi have been dismissed. Civil Appeal NO.147 of 2001 has been filed by Dr. Abdul Ghaffar Sulehria whereas Appeal No.148 of 2001 by Dr. Robina Qamar Qureshi. As common questions of facts and law are involved in both the appeals, therefore, these are disposed of through this single judgment.
2. The controversy brought to this Court relates to a Government Notification dated 28-11-1996 whereby on the recommendations of the concerned Selection Board, private respondents Dr. Shaoor Ahmed Shaoor and Dr. Shaukat Tanveer have been promoted to the post of Senior Dental Surgeon. The admitted facts of the case are that the appellants and the private respondents were inducted in the service of the Health Department as Dental Surgeons in BPS-17. Dr. Robina Qamar Qureshi, after her appointment on 27-3-1978 as Dental Surgeon (B-17), was granted Selection Grade (B-18) w.e.f. 16-2-1987, whereas Dr. Abdul Ghaffar Sulehria, who joined as Dental Surgeon (B- 17) on 15-10-1980 also succeeded in getting Selection Grade (B-18) w.e.f. 27-9-1987. According to the record both the appellants have been given moreover in B-19 on 1-12-1992. As against it the respondents, Dr. Shaoor Ahmed Shaoor and Dr. Shaukat Tanveer, were appointed as Dental Surgeons (B-17) on 13-4-1981 and 19-2-1983, respectively and were granted Selection Grade B-18 on the basis of 40% formula. Four posts of Senior Dental Surgeons of scale BPS-18 fell vacant and cases of 14 Dental Surgeons (B-17) were forwarded through working paper by the Secretary Azad Jammu and Kashmir Health Department to the concerned Selection Board and consequently the Selection Board recommended Dr. Rafique Ahmed Banday, Dr. Muhammad Tahir, Dr. Shaoor Ahmed Shaoor, respondent, and Dr. Shaukat Tanveer, for promotion to the posts of Senior Dental Surgeons (B-18). It reveals from record that a meeting of Selection Board was held in Kashmir House Islamabad. It was participated by Additional Chief Secretary Development, Principal Secretary---to the Prime Minister, Maj. General Sabir Aziz, Secretary Health, Secretary Services and Additional Secretary (Services). The meeting of Selection Board No.2 was held on 6-6-1996 by members of the Board referred to above with Chief Secretary as its Chairman. The recommendations of the Selection Board were followed by a Government Notification dated 28-11- 1996, which was challenged by the appellants, herein, to the extent of Dr. Shaoor Ahmed Shaoor and Dr. Shaukat Tanveer as these two Doctors, according to the seniority list, were junior to Dr. Abdul Ghaffar Sulehtia and Dr. .Robina Qamar Qureshi, appellants herein. The appellants invoked the appellate jurisdiction of the Service Tribunal which through a consolidated judgment recorded on 16-7-2001 dismissed both the appeals mainly on the ground that the appellants did not pass the grading course as laid down under rules, therefore, they were not eligible for promotion against the post of Senior Detktal Surgeon (B-18). When the captioned appeals by leave of this Court were finally heard by this Court, after discussing the facts and law on the subject and while keeping the appeals pending, the Service Tribunal was directed to record its opinion on the following points:--- "Whether the courses mentioned in serial No.19, Column No.7 of the Schedule attached to the Health Department Service Rules, 1984, are in fact approved by the Pakistan Medical and Dental Council; if not, as stated by Dr. Shaoor Ahmed Shaoor, whether these courses have been approved and adopted by the Government of Azad Jammu and Kashmir as qualification. If reply is affirmative, then what is its effect particularly when under rules these courses have been incorporated subject to approval by Pakistan Medical and Dental Council."
3. This direction was recorded by the Supreme Court on 18-6-2004 and is reported as Dr. Abdul Ghaffar Sulehria and others v. Azad Government and others 2005 PLC (C.S.) 1233. The Service Tribunal after recording statements of Imam Bux son of Muhammad Ramzan, Assistant Admin Officer Pakistan Medical and Dental Council and Mr. Zain Akbar, Superintendent; Office of the Director-General Health Services Muzaffarabad, recorded the opinion on the points referred to it by the Supreme Court. The Service Tribunal recorded its opinion by holding .that under the Azad Jammu and Kashmir Health Department Service Rules, 1984 the entries in Serial No.19 of Schedule provided two modes for promotion to the post of Senior Dental Surgeon (B-18), one by promotion on the basis of seniority-cum-fitness from amongst the officers holding the post of Dental Surgeon with 5 years' service in B-17 and above in the Health Department whereas the second mode, according to the Service Tribunal, provided by rules is Post-graduation from A.F.M. College in Dental Surgery or M.B.DS. or DP. PH or other equivalent qualification of one year's duration each recognized by the Pakistan Medical and Dental Council. While declaring the second mode as self- contradictory the Service Tribunal held that it has failed to understand as to why the concerned Selection Board has not made its recommendations according to the first mode. Finally in para.6 of the report the Service Tribunal held that the appellants, herein, being senior to respondents Nos.3 and 4 were eligible for promotion against the post of Senior Dental Surgeon (B-18) prior to the respondents Nos.3 and 4. The .Service Tribunal, however, in its report reproduced the statements of some of the concerned Officers of the Health Department. The Service Tribunal recorded its opinion on 10-11-2004 and the above captioned appeals remained pending in this Court for one or the other reason.
During the course of arguments it was felt necessary to send for the record of the Selection Board, which was accordingly placed before us and arguments were heard on 23rd, 25th, 26th and 27th of April, 2007. It also needs to be mentioned here that on 19-4-2007 Mr. Ashfaque Hussain Kiani, the learned counsel appearing for one of the appellants, moved an application on behalf of one Dr. Zubair Ahmed, Dental Surgeon, for impleading him as party and we felt persuaded to direct the parties before the Court to file objections on the application of Dr. Zubair Ahmed and the cases were fixed for 23-4-2007. After going through the contents of the application and the available record we dismiss this application as Dr. Zubair Ahmed, the applicant has failed to challenge the findings of the` Selection Board and the concerned Government order passed on 28-11-1996, although, as far the seniority list of the Dental Surgeons is concerned, he is senior to the appellants and the private respondents. It also needs to be mentioned here that the controversy in hand consumed more than 10 years' time and during this period many Dental Surgeons must have been appointed and promoted who are not before this Court and no finding can be recorded against them.
4. Now adverting to contentions pressed into service by the learned counsel for the parties during the course of arguments. Mr. Mujahid Hussain Naqvi, the learned counsel arguing on behalf of the appellants, submitted that the Service Tribunal was wrong to hold that the findings recorded by the Selection Board could not be assailed in appeal before the Service Tribunal and that the Selection Board was a necessary party which having not been impleaded as such, the appeal before the Service Tribunal was not properly constituted. He also submitted that the Service Tribunal fell in error in holding that only graded Doctors could be considered for the post of Senior Dental Surgeon (B-18). According to the learned counsel, the rules provide two modes for promotion to the post of Senior Dental Surgeon (B-18); one being through promotion on the basis of merit-cum-seniority and fitness from amongst the officers holding the posts of Dental Surgeons (B-18) with 5 years' experience, whereas the second mode is direct recruitment. As the appellants were admittedly senior to the private respondents with unblemished and immaculate service record, there was no justification for the Selection Board to supersede them and promote respondents Nos.3 and 4, who are admittedly junior to the appellants. In the estimation of the learned counsel only that grading course could be considered as a qualification which course has been recognized by the Pakistan Medical and Dental Council. It is proved from record that the said course is an internal arrangement of Armed Forces Medical College, therefore, the Selection Board could not deprive the appellants from their valid promotion right. He also submitted that although the private respondents have completed the grading course, the same has not been recognized by the Pakistan Medical and Dental Council. This additional and alternate qualification could not generate any right for the junior respondents to supersede the appellants, who were admittedly senior and the Selection Board erred in law to ignore the seniority of the appellants which always has an edge for promotion in the service structure, submitted the learned counsel. He further submitted that where the findings have been recorded by a recommendatory body in violation of law and the rules on the subject, the same are not sacrosanct and immune from judicial review. The learned counsel submitted that the appellants were qualified under law to be promoted from the post of Dental Surgeon to that of Senior Dental Surgeon, the impugned notification issued by the Government and the recommendations made by the Selection Board are not sustainable. While supporting his argument that the appellants possessed the basic qualification for promotion to the post of Senior Dental Surgeon (B-18), he referred to the cases of Dr. Iqbal Mir and Dr. Zaffar Elahi, who were recommended and promoted as Senior Dental Surgeons, although they did not possess the qualification mentioned in serial No.19, column 7(ii). Mr. Mujahid Hussain Naqvi, the learned counsel, also attempted to argue that the Service Tribunal has decided the case on points which were not part of the pleadings, thus rendering the judgment of the Service Tribunal as illegal. To substantiate his arguments the learned counsel has referred to different authorities recorded by this Court.
6. Conversely ' it has been contended on behalf of the learned counsel for the respondents that the Selection Board was a necessary party which was not impleaded as such, therefore, the appeal filed by the present appellants in the Service Tribunal was not maintainable. While elaborating this argument it was submitted that the Government order dated 28-11-1996 was issued on the recommendations of the Selection Board which should have been impleaded in the line of respondents for justifying its recommendations. The necessary party having not been arrayed as a respondent, the appeal 'before the Service Tribunal was not competent. The case of the appellants was considered by the Selection Board and after judging the fitness of the appellants, they were not found eligible for promotion, therefore, the suitability to hold a post having been determined, the appeal before the Service Tribunal was not competent under law. If promotion to a post is subject to some professional training, it has to be completed before a valid claim could be made for promotion to a higher grade or the post. The appellants having not acquired the qualification of grading course from Armed Forces Medical College, the Selection Board rightly recommended respondents Nos.3 and 4 for promotion to the post of Senior Dental Surgeons (B-18), submitted the learned counsel. While interpreting the departmental rules, it has been forcefully contended that qualification prescribed in Serial No.19 Column No.7(i) and (ii) is to be read together as minimum qualification. In support of their contentions they have mainly relied upon the cases reported as Umar Din Kiani v. Azad Government and others 1995 SCR 166 and several other authorities from Pakistan jurisdiction.
7. After going through the record of the case in the light of the arguments advanced by the learned counsel for the parties, we find that following points need 'consideration to settle the controversy in hand:---
(a) Whether in the set of circumstances of the instant case the Selection Board was a necessary party to be impleaded as respondent in the appeal before the Service Tribunal,
(b) Whether the finding of the Selection Board determining the fitness of an incumbent to hold a post is sacrosanct and immune from judicial review,
(c) Whether the appellants were qualified or not for promotion to the post of Senior Dental Surgeon (B-18) under the Azad Jammu and Kashmir Health Department Service Rules, 1984; and
(d) Whether the courses mentioned in Serial. No.19 Column 7 of the schedule attached with the Health Department Service Rules, 1984 are in fact approved by the Pakistan Medical and Dental Council; if not, as stated by Dr. Shaoor Ahmed Shaoor, whether these courses have been approved and adopted by the Government of Azad Jammu and Kashmir as qualification.
8. Before dealing with these points it is felt necessary to mention it here that we summoned the record of the Selection Board which also includes the working paper forwarded by the Secretary of the Department. The admitted facts are that the appellants and respondents Nos.3 and 4 hold the Bachelor degree in Dental Surgery and at the time of selection they were qualified to be considered for promotion to the post of Senior Dental Surgeon (B-18) as provided by the entries of Column 8 of Serial No.19. The only qualification which the appellants lacked was that they did not possess any of the qualifications mentioned in Column 7(ii) whereas respondent No.3 Dr. Shaoor Ahmed Shaoor had additional qualification of grading in operative Dental Surgery from Armed Forces Medical College Rawalpindi and Dr. Shaukat Tanveer possessed the additional qualification of grading in dental surgery. Dr. Shaoor Ahmed Shaoor in his statement before the Service Tribunal has admitted that the grading course of one year which has been completed from the Armed Forces Medical College Rawalpindi, has not been approved by the Pakistan Medical and Dental Council.
9. The working paper forwarded by the Secretary of the Health Department was prepared on the basis of seniority. The appellants and respondents Nos.3 and 4, along with others, were considered eligible for promotion keeping in view their service record.
10. It may be mentioned here that when the cases of the appellants and the private respondents were placed before the concerned Selection Board, the appellants were not found eligible for promotion.
11. Now coming to the first point as to whether the Selection Board was a necessary party and had to be impleaded as respondent in appeal before the Service Tribunal, we feel advised to advert to the relevant provisions of the Azad Jammu and Kashmir Service Tribunal Act, 1975, the Azad Jammu and Kashmir Service Tribunal (Procedure) Rules, 1976 and the Azad Jammu and Kashmir Civil Servants (Appeal) Rules, 1991. Under section 4 of the Azad Jammu and Kashmir Service Tribunal Act, 1975, a civil servant can file an appeal before the appropriate tribunal. Subsection (1) of this section reads as under:--- "(1) Any civil servant aggrieved by any final order whether original or appellate, made by a departmental authority prefer an appeal to the tribunal."
Under Rule 8 of the Azad Jammu and Kashmir Service Tribunal (Procedure) Rules, 1976, the parties to be impleaded as respondents have been mentioned. This rule 8 reads as under:-- "8------.In every memorandum of appeal, the competent authority shall be shown as the first respondent and thereafter all other parties to the dispute shall be shown as respondents."
As far the term "authority" is concerned, it means a person or authority which is competent to appoint a civil servant or one designated as such to proceed against civil servants under the Azad Jammu and Kashmir (Efficiency and Discipline) Rules, 1977. It also includes functionaries of the State who can finally determine any right, term or condition of service of a civil servant.
12. A combined reading of the above-referred provisions reveals that the appeal before the Service Tribunal can be filed by a civil servant who is aggrieved by any final order whether original or appellate made by a departmental authority and in his memorandum of appeal he has to implead the competent authority as the first respondent and thereafter the parties to the dispute to be arrayed as other respondents. The order whereby the respondents Nos.3 and 4 have been promoted as Senior Dental Surgeons (B-18), has been passed by the Government of Azad Jammu and Kashmir which being the only competent authority, has been arrayed as the first respondent.
The argument can be advanced that in addition to the Government of Azad Jammu and Kashmir the Selection Board concerned was also a necessary party. It may be mentioned here that phraseology and way with words of rule 8 of the AJ&K Service Tribunal Procedure Rules, 1976, mention only two respondents to be impleaded in the appeal. The competent authority which passed the final order in respect of terms and conditions of service has to be impleaded as the first respondent and the other parties to the dispute to be the second set of respondents. The parties to the dispute mean those against whom a civil servant has some grievance in respect of inter se seniority and promotion. We may also add it here that the Selection Board or the Selection Committee is in fact a substitute of the Public Service Commission which all are basically recommendatory bodies, whose recommendations may or may not be accepted by the competent authority. The appellants are aggrieved after the issuance of the Notification by the respondent-Government, therefore, in our considered view the Selection Board was not a necessary party to be impleaded as respondent in appeal before the Service Tribunal. This point has also been considered by the Bench which heard the case in the first round of litigation, when finally the Service Tribunal was directed to record its report, as earlier mentioned. The judgment of this Court is reported as Dr. Abdul Ghaffar Sulehria v. Azad Government and others 2005 PLC (C.S.)
1233. The relevant portion reads as under:-- "------..Whether the Selection Board is a necessary party or not in a civil appeal, is a question which can be resolved in light of rule 8 of the Azad Jammu and Kashmir Service Tribunal (Procedure) Rules, 1976, wherein it is provided that the competent authority is to be impleaded as first respondent. The said provision of law makes it clear that the authority who has passed the final order in respect of terms and conditions of service of any civil servant is a necessary party and no order can be passed in absence of such party. Both the appellants have arrayed the Azad Government in the line of answering respondents and these authorities have passed the final Notification dated 28-11-1996. All the interlocutory orders need not be challenged before the Service Tribunal. The language which has been applied in drafting section 4 of the AJ&K Service Tribunal Act, 1975, makes it clear that only final order, if adversely affected upon the terms and conditions of service of a civil servant, can,be challenged by an aggrieved civil servant before the Service Tribunal."
Thus, we hold that it is only the Government of Azad Jammu and Kashmir which is a necessary party to be impleaded as respondent in appeal before the Service Tribunal. The reports recorded by this Court and relied upon by the respondents to substantiate their argument that the Selection Board was a necessary party are those which have been passed in cases of writs filed under section 44 of the AJ&K Interim Constitution Act, 1974. Writ petition under section 44 of the Interim Constitution Act can be filed by an aggrieved party or person against a person performing functions in connection with the affairs of Azad Jammu and Kashmir or local authority, which means the person who while performing his functions passes an order which affects the rights of a citizen, is a necessary party. Thus, the authorities of this Court wherein it has been held that Chairman Municipal Corporation or the Board of Revenue is a necessary party are in consonance with law and we have no cavil and do not entertain any doubt in our mind about the correctness of these findings. While answering point No.1 we hold that the Selection Board in the instant case, has not passed the final order adversely affecting the service rights of the appellants, was not, therefore, a necessary party to be impleaded as respondent before the Service Tribunal.
14. Now attending to the second point whether the findings or recommendations made by a Selection Board while determining the fitness of an incumbent. to hold a post is sacrosanct and immune from judicial review and that no appeal lies to the Service Tribunal, we may in the very outset admit the legal position that the appeal to the Service Tribunal does not lie against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed or to hold a particular post or to be promoted to a higher grade. The authorities relied upon by Mr. M. Tabassum Aftab Alvi, the learned counsel, particularly the case reported as Secretary Government of Sindh Education Department and others v. Syed Riyazul Hussain Zaidi 1986 SCMR 64 clearly lay down that the appeal does not lie to the Service Tribunal against the order of the authority determining the fitness for promotion of a civil servant. The judgment reported as Sarwar Hussain Shah v. Azad Government and 3 others 1997 PLC (C.S.)302 has been recorded mainly on the basis of this judgment. The Supreme Court of Pakistan in a case reported as Mrs. Aqeela Asghar Ali and others v. Miss Khalida Khaton Malik and others PLD 1991 SC 1118 directly addressed the proposition and held that the question of promotion involve only the question of fitness and nothing else would amount to limiting the scope of promotion. There are three things to be seen while considering a case of promotion. The first rule is that; is it a part of selection or of seniority-cum-fitness or of seniority alone? The second is where the promotion is to take place by seniority-cum-fitness; the question would necessarily be assignment of the correct seniority and proceedings to determine the entitlement of promotion on its basis. The third question necessarily would be of a fitness for promotion. The Supreme Court finally in para.10 of its report held that the first two questions, namely the principle of promotion and the assignment of proper seniority for consideration for promotion are matters which do not stand excluded from the jurisdiction of the Service Tribunal because they do not involve the question of fitness which has been expressly reserved for the departmental authority and outside the jurisdiction of the Tribunal.
The first two questions relate to law and its application to the civil servant awaiting promotion. A distinction was drawn between the question of fitness of a civil servant for promotion and question of eligibility to promotion in another case reported as Mian Abdul Malik .v. Dr. Sabir Zameer Siddiqui and 4 others 1991 SCMR 1129 wherein it was held that the jurisdiction of the Service Tribunal is barred where the question of fitness of a civil servant for promotion is involved. Determination of his eligibility is a question on which jurisdiction of the Service Tribunal has not been barred. The question of eligibility relates primarily to the terms and conditions of service and their applicability to the civil servant concerned. In the present case the record reveals that according to the working paper the appellants were found qualified and eligible to be promoted from the post of Dental Surgeons (B-17) to Senior Dental Surgeon (B-18). When the Selection Board considered the cases of appellants and respondents Nos.3 and 4 and all others, they rejected the case of the present appellants and some others on the basis of eligibility and nothing adverse was recorded against them on the basis of their ACRs and other record and performance. It will be proper to reproduce the actual findings of the Selection Board to have correct appreciation whether the appellants were found unfit to be promoted or they were superseded on account of eligibility. The findings a re as under:---
15. The above findings clearly reveals that the appellants were not found suitable for promotion only on the ground that they did not fulfil the required criteria. The learned counsel for the respondents have also argued the case to defend the findings of the Selection Board on the ground that if an additional course, training or additional qualification has been prescribed by the rules, the civil servant cannot claim promotion to a higher post or grade. This clearly means that the appellants were otherwise eligible to be promoted to the post of Senior Dental Surgeon, if they had any of the qualifications referred to in column 7(ii) as their service record and performance was up to the mark and the Secretary of Health Department had recommended their case for promotion and higher responsibility. We, therefore, hold that as the case of the appellants for promotion has not been turned down on the ground of fitness, the matter could be reconsidered by the Service Tribunal. Even otherwise we agree with the learned counsel for the appellants that findings recorded by the Selection Board are not sacrosanct and immune from judicial review.
Where the findings of facts are recorded by the authority without recording any sound and cogent reason, the Tribunal or the Court can look into the correctness or otherwise of the findings so recorded. We may also mention it here that it is by now a settled law that even smallest cog of the State machinery has to work strictly under law and where due rights are denied to a civil servant, the order or recommendations must be well-reasoned. We, therefore, hold that findings recorded by a Selection Board or authority can be looked into by the Court and concerned Tribunal.
16. Now coming to the third point, whether the appellants were qualified or not under the Azad Jammu and Kashmir Health Service Rules, 1984, we deem it proper to reproduce Serial No.19 of the rules which prescribes the mode of promotion as Senior Dental Surgeon (B-18):--- S. No.Name of the DepartmentFunctional unitName of postAppointing authorityMinimum qualifications for appointment by: Initial recruitment or transferPromotion 12 3 4 5 6 7 19-do- Health GeneralSenior Dental-do- (i) As per col. 8 (ii) Post- graduate successful grading/training from AFM Surgeon (B-18)College in Dental subjects or M.B.,D.S. or DP, PH or equivalent qualification of one year duration each recognized by Pak. Medical and Dental Council.
Method of recruitmentAge of initial recruitmentExamination/Training and other conditions required for confirmation Min. max 8 9 10 11 By promotion on the basis of selection on merit- cum-seniority and fitness from amongst the officers holding the post of Dental Surgeon with 5 years service in B-17 and above in the Department.
17. While interpreting the above rules, it has been contended by Mr. M. Tabassum Aftab Alvi, the learned counsel, that entries in Column 7(i) and (ii) shall be read together and as one qualification.
In his estimation the appellants did not possess the qualification of grading from Armed Forces Medical College or any other qualification mentioned in Column 7(ii), they were rightly found unfit for promotion. Among others he mainly relied upon a judgment of this Court reported as Umar Din Kiani v. Azad Government and others 1995 SCR 166 wherein it has been held that entries in Column 7(i) and (ii) shall be read together as one qualification. Facts of that case were that a post of Assistant Wildlife Warden was to be filled in with separate qualifications for direct recruitment, transfer and promotion. While referring to section 8 of the Civil Servants Act, 1976 it was held that a person can only be promoted to a higher post if he possesses minimum qualification prescribed for the higher post.
18. Although a very short judgment, Umar Din's case (supra) is a direct authority wherein it has been held that despite required length of service necessary for promotion the prescribed minimum qualification is essential.
19. The argument advanced from the appellants' side that two modes have been provided by the rules for promotion to the post of Senior Dental Surgeon does not appear to be in consonance with the rules of 1984. If entries in Column Nos.4, 6, 7 and 8 are read together it becomes abundantly clear that Column 4 relates to the name of the post with scale which is Senior Dental Surgeon (B- 18). Column 6 deals with minimum qualification for appointment by initial recruitment or transfer but it has been left blank and no qualification has been provided for initial recruitment or transfer.
Column 7 deals with promotion, therefore, when it is read as "minimum qualification for appointment by promotion" it transpires that entries in Columns 7(i) and 7(ii) are to be read together and it cannot be presumed that entries in Column 7(i) and 7(ii) provide two modes for promotion to the post of Senior Dental Surgeon. There is a direct authority of this Court on the point wherein it has been held that entries in Columns 7(i) and 7(ii) are to be read together. In a case reported as Raja Muhammad Sohrab v. Azad Government and 6 others 2002 PLC (C.S.) 1138 it was authoritatively held in paras. 6 and 7 that bare reading of different columns of the rules/chart prove that the argument that two modes for appointment/promotion are provided, is not correct and entries made in Column 7 are to be read together. No more can be added than what has been held by this Court in the referred judgment in paras. 6 and 7. Both the paragraphs are reproduced as under:--- "(6) After hearing the respective contentions of the learned counsel for the parties and perusing the record, it may be stated that the High Court vide the impugned judgment has dismissed the writ petition filed by the appellant mainly on two-fold reasons which according to our estimation are based on misconception and misconstruction of the relevant rules. The grounds made basis for dismissal of writ petition by the High Court are as under:---
(i) under the rules two modes for appointment are provided, i.e. firstly by initial recruitment for which the minimum qualification is Master's Degree not below second class in Economics/ Commerce/Business Administration with 7 years' experience in Government/Semi-Government Organization etc. and secondly by selection on merit from amongst the employees of the Department with 7 years' service at their credit in BPS-17; and
(ii) the perusal of the rules reveals that the qualification provided for initial recruitment does not apply for appointment through selection. The only condition for appointment by selection is 7 years' experience in BPS-17
(7) The careful perusal of the relevant rules which were amended on 31-1-1993 shows that for the post of Joint Director BPS-18 the appointing authority shall be the Board. The amended rules of 1993 are appended with the memorandum of appeal as Annexure "A", wherein 10 columns have been given. In Column No.3 the name of post with scale is entered. In Column No.4 the appointing authority has been prescribed. In Column No.5 minimum qualification for appointment by initial recruitment or by transfer is mentioned. Column No.6 relates to promotion while Column No.7 relates to method of recruitment. In the instant case under Column No.3 the post of Joint Director BPS-18 is shown whereas in Column No.4 the appointing authority is shown as Board. Under Column No.5 wherein the minimum qualification for appointment by initial recruitment or by transfer is to be shown, is left blank. Under Column No.6, which relates to promotion, the necessary qualification is shown as Master's Degree not below second class in Economics/ Commerce/Business Administration with 7 years' experience on an executive position in Government/Semi-Government Organization or business organization of repute. In column of method of recruitment it has been entered as by selection on merit from amongst the members of service holding post in basic pay scale 17. Thus, from the plain reading it becomes abundantly clear that a person who is in possession of qualification of Master Degree not below second class in Economics/Commerce/Business Administration with 7 years' experience on an executive position in Government/Semi-Government Organization or Business Organization of repute can be appointed by selection on merit from 'amongst the members of service holding the post in basic pay scale 17. In our considered view these two provisions are to be read together because if we isolate both the provisions from each other, it would create anomalous situation which should be avoided while interpreting a statute. 'It is a settled principle of law that in order to interpret the provisions of a statute or rules, the Courts are not supposed to add or subtract anything in the relevant provisions. Even no word can be held to be redundant."
20. Yet in another case titled Tallat Bibi v. Shahida Saeed and others (Civil Appeal No.14 of 2001 decided on 13-4-2001) the proposition was resolved by this Court from another angle. In that case while 'arguing on the point of interpretation of Column 6, which dealt with minimum qualification for appointment to the post of Psychologist (B-17) Health Department, Ch. Muhammad Latif the learned counsel of this Court contended that in the relevant rules which prescribe qualifications for appointment by initial recruitment on the post in question, the word `or' has been printed by mistake. The contention of the learned counsel for the appellant was turned down by holding that the Courts of law are to interpret legal provisions as it stands on Statute and not on the assumption that the same is misprinted.
21. The Azad Jammu and Kashmir Health Department Service Rules, 1984, have been framed like the entries of Serial No.19 where qualifications for promotion have been mentioned as Column 7(ii) in Column 7. Serial No.20 which prescribes qualification for the post of Assistant Director Statistics (B- 18), Column 7(ii) provides Masters Degree 2nd class in Economics/Statistics. Although Column 7(i) refers to column 8, which provides criteria for promotion on the basis of merit---cum-seniority and length of service for the contenders .serving in a Department. Similarly where qualification for direct recruitment has been prescribed, the two qualifications have been mentioned as 6(i) and 6(ii).
Serial No.21 which deals with the appointment of Blood Transfusion Officer (B-17), the qualification as provided is (i) MBBS (ii) Diploma in Pathology or Hematology and under Column 8 it has categorically been mentioned that the post shall be filled in by recruitment as per Column 6. Serial No.21 is reproduced hereinbelow to have correct appreciation:--- 21- do-- do-Blood Transfusion Officer B-17(i) MBBS (ii) Diploma in Pathology or HematologyBy initial recruitment as per Col.6 2235
22. The Argument advanced by Mr. Mujahid Hussain Naqvi, the learned counsel, that the rules were not followed in the past when Dr. Muhammad Iqbal Mir and Dr. Zaffar Elahi were promoted to the post of Senior Dental Surgeon, despite the fact that they did not possess the qualification provided by Column 7(ii) of Serial No.19 has no force as well simply on the ground that the details of the case of Dr. Iqbal are not before us and even we cannot hold or decide anything in view of the fact that they are not before us. Even otherwise, under law, where an order appears to have been passed contrary to rules, same cannot be made a ground for issuing another order.
23. On the basis of above we follow and approve the judgments recorded by this Court and hold that the appellants in view of the entries id Column 7 Serial 19 of the AJ&K Health Department Service Rules, 1984, read with section 8 of the Civil Servants Act, 1976 lacked the minimum qualification prescribed for appointment/promotion to the post of Senior Dental Surgeon.
24. Now coming to point No.4 which in fact is based on the direction recorded by this Court for the opinion of. Service Tribunal in the previous round of litigation, we feel persuaded to hold that although Dr. Shaoor Ahmed Shaoor has accepted that his grading course is not recognized by the Pakistan Medical and Dental Council, it does not disqualify him simply on the ground that entry in Column 7(ii) provides that grading course from Armed Forces Medical College should have been recognized by the Pakistan Medical and Dental Council. This contention is also irrelevant as according to record supported by the statement of some witnesses of the Health Department, grading course conducted by the Armed Forces Medical College is, in fact an internal arrangement of Armed Forces Medical College and as far the Pakistan Medical and Dental Council is concerned, it is an institution which has been established mainly for the purpose to recognize and approve Graduate and Post-Graduate institutions and register the doctors who have qualified from such recognized institutions. Another purpose of the Pakistan Medical and Dental Council is to verify the degrees of those doctors who qualified from abroad and determine equivalences. The departmental rules have to be read keeping in view section 8 of the Civil Servants Act, 1976 which is parent Statute. In this Act no restriction or clog has been imposed. We, therefore, conclude that respondents Nos.3 and 4 were qualified to be considered by the Selection Board for promotion to the post of Senior Dental Surgeon.
25. No other point needs to be determined and adjudicated upon as the same remains one of academic nature only. The appeals, therefore, fail on the ground that the appellants lacking minimum qualification for promotion to the post of Senior Dental Surgeon, the Selection Board rightly held that they did not fulfil the requisite criteria/qualification.
26. Before parting with the case it is, however, felt necessary to mention it here that the rules have not been framed properly and suffer from want of skilled drafting. It is high time for the concerned authorities to frame rules so that people with longstanding in service and those who possess the higher education feel safe as far their service rights are concerned and brain drain is stopped.
The upshot of the above is that captioned appeals fail with no order as to costs.