Kh. Shahad Ahmed, J.--The instant appeal has been directed against a judgment recorded by the Azad Jammu & Kashmir Service Tribunal on 14.5.2007 whereby Service Appeal No. 291/04 filed by respondent No. 1 has been accepted by holding that the promotion order of the appellants, herein, issued on 12.5.2004 doesn't affect seniority of Respondent No. 4, herein. Leave to appeal was granted in the instant case on 27.6.2007.
2. Factual matrix of the case, as has been placed before the Court in the memo of appeal as well as in the concise statement, is that Appellant No. 1, herein, who was working as Qanungo, was promoted against the post of Naib Tehsildar on 6.3.1999 and subsequently was promoted as officiating Naib Tehsildar on 3.5.2001. Appellant No. 2 was promoted against the post of Naib Tehsildar on current-charge basis on 14.5.1996 and on 21.1.1998 he was also promoted as Naib Tehsildar on officiating basis. Similarly Appellant No. 3 was promoted as Naib Tehsildar on current- charge basis vide order dated 24.9.1999 and again on officiating basis as Naib Tehsildar on 3.5.2001. The Departmental Selection Committee, Respondent No. 6, recommended the promotion of appellants with effect from 22.8.1998. This recommendation was made on 12.4.2004, a facsimile of which is at page 11 of the paper-book, as annexure "F". On the basis of recommendations of the Departmental Selection Committee the competent authority (Commissioner Muzaffarabad Division) issued the orders of promotion of the appellants as Naib Tehsildar (B-14) w.e.f. 22.8.1998 vide order dated 12.5.2004. This order dated 12.5.2004 was assailed in the Service Tribunal by Respondent No. 1 and, as has earlier been mentioned, the same was recalled to the extent it related to retrospective operation and effect. The facts admitted by the respondents are that Respondent No. 1 was appointed as Naib Tehsildar against the post of direct quota on 20.7.2000 whereas the appellants were temporarily appointed and promoted as Naib Tehsildar and were working as such at the time of appointment of Respondent No. 1 on 20.7.2000. The appellants were appointed on officiating basis against the posts of direct quota which orders had to remain as such as stop-gap arrangement and had to culminate immediately after return of incumbents from direct quota after completion of training. Another fact, disputed by the respondent is that there were no posts of promotion quota available to the category the appellants belonged to; therefore, retrospective promotion/seniority from 22.8.1998 being incorrect, the selection committee couldn't recommend the retrospective promotion.
3.Mr. M. Tabassum Aftab Alvi, the learned counsel for the appellants, while supporting his contentions and to dispute the correctness of judgment of the Service Tribunal, submitted that the appellants were recommended by the Departmental Selection Committee for promotion against the post of Naib Tehsildar (B-/14) w.e.f. 22.8.1998, on which date the permanent vacancies of Naib Tehsildar were available, therefore, keeping in view the provisions of Section 7(2) read with Section 6(6) of the Azad Jammu & Kashmir Civil Servants Act, 1976, the order of promotion of appellants from 22.8.1998 was legally correct as at the relevant time the permanent posts were available. The appellants were holding the posts of Naib Tehsildar when on 20.7.2000 Respondent No. 1 was inducted as Naib Tehsildar, submitted the learned counsel. According to him the appellants have been shown at Serial Nos. 45 to 47 in the seniority list whereas Respondent No. 1 was at Serial No. 56 and on account of judgment of the Service Tribunal the appellants have become junior most even against those who were subsequently appointed and were not before the Service Tribunal nor had filed any appeal. The learned counsel further submitted that the judgment of the Service Tribunal is against the pronouncements of the Supreme Court laid down in Civil Appeal No. 77/02 titled Syed Shaukat Hussain Gilani vs. Syed Zulfiqar Ali Shah & others decided on 7.1.2003. In support of his contentions the learned counsel referred to and relied upon the cases reported as 1993 SCR 387, Ch. Abdul Latif & 2 others vs. Secretary AJ&K Council & 2 others [1999 SCR 222] and Muhammad Arshad Khan v. Azad Government and others [PLJ 2000 SC (AJ&K) 88].
4. As against it while relying on relevant orders of promotion of the appellants and appointment order of Respondent No. 1, the only point raised by the learned Advocate-General, Syed Nazir Hussain Shah Kazmi and Kh. Muhammad Naseem, the learned counsel for the respondents, is that the posts of Naib Tehsildar were of direct quota, and the appellants were promoted on temporary and officiating basis till return of directly selected candidates after completion of required departmental training. If the posts were of direct quota, promotion of the appellants couldn't be recommended by the Departmental Selection Committee. Officiating appointments doesn't confer any right for seniority. The provisions of Sections 6 and 7(2) of the Civil Servants Act can only be taken into consideration if a post which has fallen vacant is permanent and falls in the departmental quota, submitted the learned counsel. In support of their contentions the learned counsel referred to and relied upon the cases reported as Nazar Ahmed Khan vs. Syed Sabir Hussain Naqvi & 3 others [2000 SCR 580], Muhammad Ilyas Khan & 5 others vs. Sardar Muhammad Hafeez' Khan & 4 others [2001 SCR 179] and an unreported judgment titled Abdul Majeed Banday vs. Azad Govt. & others recorded in Civil Appeal No. 66/04 on 12.7.2005.
5.We have heard the learned counsel for the parties and gone through the record of the case.
Although some other points have also been raised by the learned counsel for the parties, we are of the considered view that they need no consideration as the controversy between the parties is simple and revolves around the only fact as to whether the posts against which appellants were promoted before the appointment of Respondent No. 1 belonged to the direct quota or were permanently available to be filled in on the basis of promotion. At Page 6 of the paper-book a letter addressed to the Accountant General of Azad Jammu & Kashmir and the Chief Administrator Zakat & Ushar, Azad Government of the State of Jammu & Kashmir by the Additional Commissioner Muzaffarabad clearly reveals that at the relevant time the appellants were promoted on officiating basis and the candidates of direct quota were not available. Some other documents attached with the case by the parties also reveal so. Therefore, the findings of the Service Tribunal that the officiating promotion as Naib Tehsildar was in fact a stop-gap arrangement and subsequently on the return of Naib Tehsildars from direct quota the appellants, herein, had to revert back to their original post and as a consequence of that, they couldn't claim their seniority from the dates they were promoted as Niab Tehsildar on officiating basis, appears in line with the record.
6. The appellants have attached a copy of the order issued by the Commissioner Muzaffarabad Division which clearly reveals that Appellants No. 1 and 3 were working on current-charge basis when they were appointed as officiating Naib Tehsildars. This order has been issued on 3.5.2001, therefore, they were working as Naib Tehsildar on current-charge basis or on officiating basis and couldn't be given retrospective effect by the departmental .selection committee. Similarly the available record clearly reveals that Appellant No. 2 was also officiating Naib Tehsildar. In presence of the available record even relied upon by the appellants, the selection committee couldn't grant retrospective appointment and seniority to the appellants. The respondents have also relied upon some record and have placed copies of the relevant orders with their concise statement.
7. Now coming to the authorities referred to by the learned counsel for the parties. In the case titled Abdul Majeed Banday vs. Azad Got. & others (Civil Appeal No. 66/04) while relying upon different judgments of this Court it has been held that retrospective effect cannot be given to a promotion order if the other incumbents of the Department are adversely affected. Similarly as far application of Section 6 read with Section 7(2) of the Civil Servants Act, 1976, is concerned, the order of promotion can be given retrospective effect in favour of a person who is occupying a vacancy in the Department but if the vacancy was created by artificial means, retrospective effect cannot be given, to a promotion order. The maximum which an incumbent can claim is benefit of grade and pay of that post, which he served for such a long time. Reference in this respect may be made to the case reported as Ejaz Ahmed Khan & another vs. Mehboob Ahmed Khan & 2 others [2005 SCR 242].
As far the case reported as 1993 SCR 387 is concerned, it is correct that in the referred judgment it was held that the Service Tribunal could determine the date of promotion and fix the same from the date when the aggrieved incumbent had become eligible for promotion to the higher post but the concerned authority withheld the matter. This authority is not applicable in the present case in view of the fact that admittedly the appellants were not permanently appointed as Naib Tehsildars in the year 1998. Their promotion as Naib Tehsildar was clearly made against the vacancy reserved for direct quota of Naib Tehsildars. In the case reported as Ch. Abdul Latif & 2 others vs. Secretary AJ&K Council & 2 others [1999 SCR 222] it was held as under:-- "We have noticed that promotions made in 1995 and the promotions which are the subject matter of these appeals were ordered on acting charge basis, but the provision relating to acting charge basis was not applicable to the situation. Rule 8-B of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, which is the relevant set of rules, read as follows:-- 9-B. (1) Where the appointing authority considers it to be in the public interest to fill a post reserved under the rules for departmental promotion and the most senior civil servant belonging to the cadre or service concerned who is otherwise eligible for promotion does not possess the specified length of service the authority may appoint him to that post on acting charge basis.
(2) So long as a civil servant holds that acting charge appointment, a civil servant junior to him shall not be considered for regular promotion but may be appointed on acting charge basis to a higher post."
23. It is clear from the rule reproduced above that appointment on acting charge basis can be made if a post is vacant but the most senior civil servant, who is otherwise eligible for promotion, has not completed the required length of service. It is also clear that it is only the said senior most civil servant who can be promoted under Rule 8-B. It follows that if the most senior civil servant is fit for propotion and he also possesses the 'specified length of service there is no room for appointment on acting charge basis."
As far the case reported as Nazar Ahmed Khan us. Syed Sabir Hussain Naqvi & 3 others [2000 SCR 580], relied upon by the learned counsel for the respondents is concerned. after discussing in detail the case law on the subject controversy the order challenged before the Court and recorded by the Service Tribunal was upheld on certain grounds inter alia that it was clearly laid down that seniority in the grade to which a civil servant is promoted, shall take effect from the date of regular appointment to a post in that grade.
So far as the case reported as Muhammad Ilyas Khan & 5 others vs. Sardar Muhammad Hafeez Khan & 4 others [2001 SCR 179] is concerned, it was opined as under:-- "...It needs hardly any authority that the seniority of a civil servant would be reckoned from the date of his regular promotion. As Sardar Muhammad Hafeez Khan was regularly promoted form the year 1987, his seniority would be reckoned from the said date, irrespective of the fact as to whether the retrospective effect to his promotion from 1987 was legal or not; because that was not challenged by the petitioners and had attained finality."
Mr. M. Tabassum Aftab Alvi, the learned counsel, has very seriously contended that the Supreme Court" has authoritatively pronounced in Civil Appeal No. 77/02 titled Syed Shaukat Hussain Gilani vs. Syed Zulfiqar Ali Shah & others decided on 7.1.2003, about the seniority of appellants, therefore, the Service Tribunal was not justified to record a finding running counter to the findings of the apex Court. We have gone through the judgment recorded in the captioned appeal and we hold that the Service Tribunal has rightly held that the said judgment is in fact a finding recorded on the basis of compromise, .which is unmistakably correct. This judgment was recorded by a former Chief Justice of this Court Mr. Justice (late) Muhammad Younas Surakhvi, who, in Para 3 of the judgment held as under:-- "3. In the light of compromise entered into between the parties before this Court, the Board of Revenue may act upon the compromise and on its basis Syed Zulfiqar Ali Shah, Respondent No. 1, who has been admitted as senior by the appellant, Syed Shaukat Ali Gillani, may be declared senior from 21.1.1998. The promotion order of appellant, Syed Shaukat Ali Gillani, may be kept intact provided the seniority of Syed Zulfiqar Ali Shah is not disturbed. The Board of Revenue is directed to act upon the compromise entered into between the parties provided the relevant law and rules allow the same. In view of compromise we set aside the judgment of the Service Tribunal dated 3.4.2002 and the file after its completion shall be consigned to record."
9. A perusal of the captioned paragraph clearly reveals that this Court has not held that Syed Zulfiqar Ali Shah, appellant, is senior to Syed Shaukat Gilani, appellant, but in fact has observed that the Board of Revenue may act upon the compromise between the Appellants No. 1 and 2, herein.
10. The proposition whether the appellants could be granted regular appointment/seniority from 1998 on the ground of their continuously holding the post of Naib Tehsildar on temporary; current- charge or officiating basis, came before full bench of this Court in an identical case reported as Muhammad Arshad Khan Tehsildar District Bagh vs. Azad Govt. & others [PLJ 2000 SC (AJ&K) 88], at page 100 and 101 a full bench of this Court discussed and dilated upon the legal position for granting ante-dated promotion to the incumbents working on acting-charge basis, officiating appointments, stop-gap or temporary promotion and disallowed ante-dated promotion of Abdul Hamid Khan, Arshad Mehboob Khan, Kh. Abdus Samad, Said-uz-Zaman Khan and Raja Farooq Ahmed Khan, Tehsildars, who were promoted as Tehsildars against the quota reserved for direct quota of Tehsildars. It was held as under:-- "It is evident from the provisions contained in Rule 10-A(1) that acting charge promotion can be given if a post is reserved for departmental promotion and the most senior civil servants belonging to the cadre or service concerned who is otherwise eligible for the promotion, doesn't possess the specified length of service at the time of his promotion. Under sub-rule (2) of Rule 10-A, if a post is reserved to be filled in by initial recruitment but a suitable officer is not available to fill in the same, the said post can be filled in on acting charge basis by appointing the most senior officer eligible for promotion. It is evident from the aforesaid provisions that an appointment on acting charge basis in case of departmental promotion can be made only when the promotee doesn't possess the requisite length of service; under sub-rule (4), an appointment on acting charge basis shall not be deemed to be made on regular basis for any purpose nor it shall confer any right for regular appointment. In the case of the respondents who were promoted on acting charge basis it is not ascertainable that they were appointed against the quota of posts reserved for departmental promotion or that they were appointed against the quota reserved for initial recruitment. Assuming for the sake of arguments that they were promoted against the quota reserved for departmental promotion, in that case the presumption is that they were not possessing the requisite qualification of length of service stipulated under sub-rule (1) of Rules 10-A on the relevant dates. Thus, the necessary condition for ante-date operation that the promotee must be qualified for promotion is missing in case of the respondents promoted on acting charge basis as they didn't have the requisite length of service for promotion on regular basis. Even otherwise, in the written statement filed by the respondents, it has been averred that all the posts which were filled in on officiating/acting charge basis were not made against the posts which were reserved for direct recruitment. There is no specification as to which of the appointees was appointed against the post reserved for the departmental promotion, thus the observations of the Service Tribunal that there were 25 posts available, out of which 15 were to be filled in by promotion and 10 were reserved for direct recruitment is ambiguous. It has also not been pointed out by the Service Tribunal that if the said posts existed, i.e. whether the same were existing on the dates when the appointments of different respondents were made; it is also not ascertainable from the impugned judgment as to whether those posts became available under the rules which were enforced in the year 1980 or.came into existence in the year 1991 when the new rules were promulgated where the ratio of the quota was changed from 50:50 to 30:70. There is also no explanation that if the posts for departmental promotion were available, why 17 Tehsildars were promoted on officiating basis vide Notification No. SN/1620-1655 dated 25.3.1992, wherein it has also been written that on the return of the Tehsildars appointed by direct recruitment from training, the junior most would be demoted.
Obviously, according to the said order, if not all, at least some of the posts were filled in which belonged to the quota reserved for direct recruitment. Therefore, the observation of the Service Tribunal that 15 posts were available for departmental promotion out of 25, is not tenable in absence of any material on the record. Even otherwise, as has been already stated, an acting charge promotion can be ordered only if the concerned candidate doesn't possess the requisite length of service for such promotion.
11. The next question pertains to condition of officiating appointments. It is evident from sub-rule (1) of Rule 13 of the Rules that officiating appointment can only be made if the post falls vacant as a result of deputation, leave or appointment on acting charge basis of a regular incumbent or is reserved under the rules to be filled by transfer. In the present case it is nobody's case that the posts against which 17 persons were promoted on officiating basis fell vacant due to any of the aforesaid eventualities. Rather the said posts appear to have been reserved for direct recruitment.
If the posts fell vacant due to retirement of previous incumbents or the same were newly, created, the same could not be filled in on officiating basis under Rule 13(1); similarly, under sub-rule (3) of Rule 13, the officiating promotion would not confer any right of promotion on regular basis and same is liable to be terminated as soon as a person becomes available for promotion on regular, basis. Therefore, it cannot be said that officiating promotion of some of the respondents was envisaged under rules or same could be made basis for giving ante-dated promotion to the incumbents.
12.The next question arises as to whether the ante-dated seniority to Respondents Nos.3 to 7 in Appeal No. 2 of 1999, entitled above, could be given to the said respondents. It is important to point out that the promotion of as many as 20 Tehsildars was regularized on permanent basis but out of 20, ante-dated seniority has been given to the five aforesaid respondents vide said notification.
Obviously, the notification dated 16.11.1994 is not a seniority list. It is recorded in the notification that promotion of respondents, Abdul Hamid Khan, Arshad Mehboob Khan, Kh. Abdus Samad, Said-uz- Zaman Khan and Raja Farooq Ahmed Khan, would commence from 22.4.1986. It is also mentioned in the said notification that as the direct recruits-Tehsildars have been appointed as Extra Assistant Commissioners, their seniority would not be adversely affected but the said order did not take notice of the fact that the appellants, herein, who were regularly appointed in the year 1991, their seniority would be definitely adversely affect if the said respondents are given seniority from 22.4.1986. The ordinary rule of preparing a seniority list is the first a provisional list is issued by the competent authority and objections are called and thereafter a final list is prepared. But in the instant case the short-cut method has been resorted to and the aforesaid five respondents have been chosen to given them seniority from 22.4.1986 without having any objections from the appellants, herein.
13.In the light of what has been stated above, we accept the appeals, set aside the impugned orders in both the appeals and declare that the letter/order dated 8.12.1994 written by the Secretary Board of Revenue and the Government notifications dated 25.3.1992 and 16.11.1994, which give retrospective effect to the officiating/acting charge appointments of the respondents, would not adversely affect the seniority of the appellants, herein, in any manner. In the circumstances."
11. We, therefore, following the identical authority recorded by the full bench of this Court, dismiss the appeal. On the basis of above, finding no force in this appeal, the same is hereby dismissed with no order as to costs.