' MOHAMMAD AZAM KHAN, CJ. -- The titled appeals by leave of the Court arise out of the judgment High Court dated 22nd February, 2014. Since both the appeal arise out of the same judgment, therefore, these are proposed to be decided through this single judgment.
2. The appellants, Shahjahan Kiani and Arif lqbal Usmani, filed a writ petition in the High Court alleging therein that they are serving as Budget Superintendent B-16 and Senior Auditor B-11 in the Finance Department, respectively. A post of Budget Officer B-17 and 3 posts of Budget Superintendents B-16 were laying vacant in the Department. The working paper for their promotion alongwith others was submitted before the Selection Board No, 3 on 11th December, 2006. The Selection Board recommended the appellants and some others for promotion as Budget Officer and Budget Superintendent. The recommendations were submitted to the competent authority for approval. The authority accorded approval but the respondents issued promotion orders only to the extent of Mufti Muhammad Sajjad and Kh. Khurshid Hussain on 18th January, 2007 as Budget Superintendent. Later on, the recommendations were recalled through order dated 8th June, 2007.
This order was challenged through amended writ petition. They requested for issuance of a direction to the competent authority for implementation of recommendations of Selection Board No, 3 and approval of competent authority. After necessary proceedings, a learned Single Judge in the High Court dismissed the writ petition by observing that the matter relates to terms and conditions of service and writ petition is not maintainable for retention of ill-gotten gains.
3. Ch. Shoukat Aziz, Additional Advocate-General, while arguing on behalf of the appellants, submitted that finding recorded by the High Court to the extent of sub-rule (3) of Rule 13 of Rules of Business, 1985 are not maintainable. The High Court has mistakenly held that Chief Secretary, according to the said rule, has to chair the meeting of Selection Board No, 3 being Secretary Finance Department, whereas, the Chief Secretary can only perform the functions of Secretary Finance Department in financial matters. The learned counsel referred to notification dated 1st April, 2005 and argued that promotion cases of officers B-16 and B-17 shall be placed before the Selection Board No, 3 and Secretary concerned Department shall be the Chairman of the Selection Board. The finding of the High Court that Chief Secretary is the Secretary of Selection Board No, 3, is not maintainable.
4. Mr. Abdul Rashid Abbasi, Advocate, accepted the position and stated that he has no objection in acceptance of appeal.
5. While arguing on behalf of appellants, Shahjahan Kiani and others, Mr. Abdul Rashid Abbasi, Advocate argued that the judgment of the High Court is against law and the record. No final order was passed. The Selection Board has made recommendations for promotion of the appellants and others but promotion orders of Mufti Muhammad Sajjad and Kh. Khurshid Hussain, were issued while orders of the appellants were not issued with mala fide. The Service Tribunal has no jurisdiction to issue direction to the authority for implementation of the recommendations. The learned counsel argued that the Chairman Selection Board has no power to suo motu review the recommendations of the Selection Board. The High Court fell in error while holding that if an illegality is found in the order then the Chairman has power to review the recommendations. He argued that provisions of Section 21 of General Clauses Act are not applicable. The orders can be withdrawn only by the issuing authority before its implementation. The recommendations cannot be withdrawn. The learned counsel relied upon the cases reported as Amjad Hussain Khan Vs. D.I.G.
Police Range and another (2004 SCR 151) and Azad Govt. And 3 others Vs. Farhat Shaheen (2007 SCR 62).
' In case reported as Amjad Hussain Khan Vs. D.I.G. Police Range and another (2004 SCR 151), the appellant was serving as Head Constable in the Police Department. His services were terminated by an officiating Superintendent of Police. It was held by this Court that officiating S.P. Is virtually an A.S.P., while appointing authority of Head Constable is S.P. Officiating S.P. Has no power to terminate the services of a Head Constable. It was further observed that the order was passed without hearing the appellant, which is bad in law.
' In the case reported as Azad Govt. And 3 others Vs. Farhat Shaheen (2007 SCR 62), it was observed by this Court that under Section 4 of the Service Tribunals Act, 1975, the appeal lies to the Service Tribunal pertaining to the matters involving terms and conditions of service. The Service Tribunal has no jurisdiction to issue direction to the authority, therefore, the writ petition is maintainable.
' The learned counsel further argued that finding recorded by the High Court that no post was available, therefore, recommendations for promotion cannot be made, is not maintainable. He argued that the recommendations were illegally withdrawn by the Selection Board and notification dated 8th June, 2007 is not maintainable. The learned counsel submitted that the recommendations in favour of the appellants were validly made by the Selection Board through circulation. He referred to Rule 26(1) of the Rules of Business, 1985 which provides that approval can be obtained by circulation.
6. Ch. Muhammad Latif, Advocate, while arguing on behalf of respondent No, 4, Majid lqbal, submitted that through notification dated 31st October, 2014, appellant No, 1 has been promoted as Budget Officer, B-17. His appeal has become infructuous. It merits dismissal. The learned counsel argued that for promotion against the post the relevant qualification is Intermediate whereas the appellant No, 1 is Matriculate. He has no right to be promoted. He requested for dismissal of appeal.
7. Mr. Abdul Rashid Abbasi Advocate, clarified the position that in Azad Jammu & Kashmir Finance Department Rules, 1986, the qualification for promotion as Budget Officer was Intermediate, however, in the amending Rules, it has been provided as Matric.
8. We have heard the learned counsel for the parties and also perused the record. Firstly, we will resolve the question of interpretation of sub-rule (3) of Rule 3 of Azad Jammu & Kashmir Rules of Business, 1985. It will be useful to reproduce the relevant rule for proper appreciation, which reads as under:-
13. Services and General Administration Department. -- (1) The Services and General Administration Department shall be responsible for-- (a)
(b)
(c)
(d)
(e)
(2)
(3) No order in respect of emoluments, promotion or conditions of service of any officer employed in the Finance Department shall be made and no expenditure proposal relating to that Department shall be sanctioned without prior concurrence of the Services and General Administration Department. The Chief Secretary shall perform in respect of such matters, the functions of the Secretary, Finance Department."
' It is celebrated principle of interpretation of statutes that plain meanings have to be assigned to a statutory provision, if the language is plain and there is no ambiguity then the ordinary dictionary meanings have to be assigned to it. It was observed in case reported as Ch. Muhammad Yousaf Vs. State (2001 SCR 380) as under:- "We have no quarrel with the proposition laid down in above-referred authorities as these contain the cardinal canon of interpretation that when the meaning of a word or term used in a statute is clear and unambiguous, the Court cannot go beyond them and has to take them in their ordinary dictionary meanings."
' In another case reported as Syed Mumtaz Hussain Naqvi and 9 others Vs. Raja Muhammad Farooq Haider Khan and 4 others (2014 SCR 43), this Court observed as under:-- "...Lt is celebrated principle of law of interpretation of statutes that the plain dictionary meanings are always assigned to the words incorporated in a provision. The Courts are bound to assign the ordinary and plain meaning to a word used in a statute...."
' A plain reading of sub-rule (3) of Rule 13 of Rules of Business shows that the rule only relates to Finance Department and imposes a condition that the orders in respect of emoluments, promotion or conditions of service of any officer employed in the Finance Department shall not be passed without the prior concurrence of the Services and General Administration Department. Sub-rule (3) of Rule 13 further provides that no expenditure proposal relating to the Finance Department shall be sanctioned without prior concurrence of the Services and General Administration Department and for the purpose, a further condition has been laid down that for issuance of orders in the matters of emoluments, promotion, conditions of service of any officer of the Finance Department and expenditure proposal relating to Finance Department, the Chief Secretary shall perform the functions as Secretary of the Finance Department. Sub-rule (3) of Rule 13 of Rules of Business deals with two distinct matters. In the first part, at the end of "no order in respect of emoluments, promotion or conditions of service of any officer employed in the Finance Department shall be made", the word "and" is used; and in the second part "no expenditure proposal relating to that Department", is included. The word "and", has been used between these two distinct matters which implies that a condition has been imposed in respect of the matters enumerated before and after the word "and", that the Chief Secretary shall perform the functions as Secretary of the Finance Department in respect of these matters. The words "such matters" refers to all the matters which enumerated in the sub-rule. Thus, we safely conclude that in the light of plain meaning of above- mentioned sub-rule (3), Rule 13 of the Rules of Business, it is clear that for obtaining the prior concurrence of Services and General Administration Department regarding issuance of orders in respect of emoluments/promotions and conditions of service of any officer employed in the Finance, Department and sanctioning of expenditure proposal relating to the Finance Department, the Chief Secretary shall perform the function of Secretary Finance Department. Thus, the referred statutory provision has to be interpreted according to its scope and not as wider to include all the other functions of the Secretary of the Finance Department. The proposition becomes more clear when Rule 13(3) is read with Rule 15 of Rules of Business, which provides that no Government Department, shall, without previous consultation with the Finance Department, issue any order which directly or indirectly affects the finance of the Government. Rule 15 of Rules of Business confers powers upon the Finance Department for controlling the finance of the Government Departments. The wisdom behind Rule 13(3) of Rules of Business is that there shall be some authority who shall control or check the finance and financial matters and the emoluments, promotion or condition of service of the officers of the Finance Department. That is why, it has been laid down that in respect of emoluments, promotion or conditions of service of any officer employed in the Finance Department and expenditure proposal, prior concurrence of the Services and General Administration Department is necessary. Without prior approval no order can be issued in such matters and the Chief Secretary shall perform the functions of the Secretary of the Finance Department regarding all the matters enumerated in sub-rule (3) of Rule 13 of the Rules of Business.
9. The Notification No, S&GAD/R/A-4112/94, Part III, dated 11th May, 1999, is issued under Rule 20 of the Azad Government of the State of Jammu & Kashmir Rules of Business, 1985. It will be useful to reproduce here the same as following:-- "20. Selection Board. -- (1) Government may constitute one or more Selection Boards and specify the appointments and promotions to posts, other than those to be made on advice of the Public Service Commission, to be made on the advice of such Selection Board.
(2) If in any case, a Department does not propose to accept the advice of the Selection Board in regard to a matter in which its advice is required under sub-rule (1), the case shall be returned to the Selection Board for reconsideration, and the Selection Board shall reconsider such case. If on reconsideration the difference still persists, the case shall be submitted to the Prime Minister through the Services and General Administration Department for his orders."
' A bare reading of the rule clearly speaks that the Selection Board is assigned the duty of making advice to the authority. Under the provisions of Rule 20 of the Rules of Business, several Selection Boards have been constituted consisting of Chairman, Members and Secretary. Selection Board No, 2 is constituted for the post of Grade B-18. Additional Chief Secretary (General) is its Chairman.
Secretary Services, Secretary of the concerned Department and Head of the concerned attached department are Members, whereas Additional Secretary Services (Regulations) is Member/Secretary of the Selection Board. Same like Selection Board No, 3 is constituted for the posts falling in Grade B-16 and B-17. The composition of the Board is; Secretary of the concerned Department, Chairman, Head of the attached department, Additional Secretary Services (Regulations), Additional Secretary Finance, Members, whereas Deputy Secretary/Section Officer of concerned department, Secretary of the Selection Board. Thus, cumulative study of the Rules of Business and notification for constitution of Selection Boards clearly reveals that the composition of the Selection Board is: Chairman, Members and Secretary, thus, the designated officers shall perform their duties as Chairman, Members and Secretary of the Selection Board. Therefore, their status as Chairman and Members Selection Board will not be affected and disturbed by the application of the provisions of sub-rule (3) of Rule 13 of the Rules of Business.
10. Another anomaly is also created, if sub-rule (3), of Rule 13 of the Rules of Business is applied in relation to Selection Board, then the Additional Chief Secretary (General), will perform the function of Chairman Selection Board No, 2, whereas the Chief Secretary will have to work under him as a Member. Certainly, it is not the intention of the rules-maker to place of the Chief Secretary in a position to perform functions under his subordinate. Therefore, we are unable to agree with the conclusion and interpretation made in the impugned judgment of the learned High Court.
11. The counsel for respondent has placed on record a notification dated 31st October, 2014, which reads as under:-- {{URDU TEXT}} ' It appears from the notification dated 31st October, 2014 placed on record that on the recommendations of Selection Board No, 3 appellant No, 1 in counter-appeal has been promoted against the post of Budget Officer, B-IT The Selection Board No, 3 is chaired by the Chief Secretary as Chairman Selection Board It appears that this is the result of ...Compliance with the direction of the learned High Court. Issued in the Impugned judgment. The promotion notification further reveals that it has also been issued without prior concurrence of the Services and General Administration Department.
12. In the light of hereinabove discussed detailed reasons, the holding of meeting of the Selection Board No, 3 under the Chairmanship of the Chief Secretary are not valid proceedings and same like issuance of order without prior concurrence of the Services and General Administration Department under the provisions of sub-rule (3) of Rule 13 of 1/4 the Rules of Business also make the order invalid. Therefore, the argument of Ch. Shoukat Aziz, Additional Advocate-General regarding these propositions appears to have substance. Hence, the impugned judgment to this extent alongwith the notification dated 31st October, 2014 being invalid, are set aside.
13. The next moot point involved in these appeals is the validity of the advice of the Selection Board No, 3 made through circulation. According to respondents, appellants in counter-appeal, Selection Board No, 3, after due process has recommended them for promotion, which has also been partly acted upon to the extent of Mufti Muhammad Sajjad and Kh. Khurshid-ul-Hussain, whereas the recommendations have illegally been withdrawn through subsequent notification dated 8.6.2007.
14. The minutes of meeting of Selection Board No, 3, held on 6.6.2007, have also been placed on record. The relevant portion of the same is reproduced as under:-- "(B) For Budget Superintendent BPS-16.
(i) By initial recruitment as per column 6 of recruitment rules.
(ii) By promotion from SAS Auditors BPS-7 with 5 years service as such or ' By promotion from Non-SAS Auditors in BPS-11 with 10 years services as such.
' From the above-stated position it is very clear that no percentage of quota has been given in these rules with reference to the modes of recruitment to these posts but in the working paper post of Budget Officer BPS-17 has been shown as 100% promotion posts and post of Budget Superintendent BPS-16 has been shown as 3 by promotion and 1 by initial recruitment. These promotions were got approved from the Selection Board which clearly indicates the mala fide intention of the concerned.
(C) A note has been given on the back of the Summary for Finance Minister (Page 22/N) dated 10.1.2007 by the then Additional Secretary (Regulations and Admin) after obtaining approval of this Summary from the Competent Authority. The note is reproduced as under:- {{URDU TEXT}} ' The above note further clears that mala fide intention of all the concerned that the post of Budget Officer was not available/vacant and that the ACRs of Mr. Arif Usmani contain adverse remarks but the Selection Board was kept in dark in this regard. The adverse remarks of Mr. Aif Usmani were got expunged on 12.1.2007 vide Order No, Finance-Admin/623-25/07 (which also shows overwriting on the date). Moreover, there is no provision in the relevant rules for convening of Selection Board through circulation.
' Thus keeping in view the circumstances narrated above all the learned Members of the Selection Board agreed to reverse the recommendations of the Selection Board convened on 11.12.2006.
Therefore, in exercise of the powers conferred under Rule 20, sub-rule (2) of Rules of Business, 1985 the recommendations of the Selection Board dated 11.12.2006 are hereby cancelled and the next meeting of Selection Board will be convened shortly to reconsider the cases of promotion."
(Underlining is ours)
' The above reproduced portion of the minutes of the meeting clearly reveals that some serious discrepancies have been pointed out including overwriting of date. These are complicated questions of facts requiring detailed inquiry, which cannot be resolved in writ jurisdiction. As the recommendations on the basis of which the appellants in counter-appeal approached the High Court for issuance of their promotion orders stood withdrawn, thus, there remains no question of implementation of the recommendations. In the light of hereinabove reproduced minutes of meeting of the Selection Board and consequently the order dated 8th June, 2007, the advice of the Selection Board No, 3 (which is part of the record), made through circulation, has been withdrawn, therefore, in spite of our serious reservation regarding the mode, advice or the validity of recommendations of Selection Board by circulation, the proposition is left open to be resolved in some other appropriate case. As under the provisions of Rule 20 of the Rules of Business, the advice of the :Selection Board is not of binding nature and under sub-rule 2 of this rule, the authority is vested with the powers to return the advice to the Selection Board for reconsideration. Thus, it appears that the Board is vested with the powers of reconsideration of the matter. In the instant case the advice of the Selection Board obtained by circulation was not acted upon and before its implementation the Board has reconsidered and withdrew the same for the reasons mentioned in the minutes of the meeting of Selection Board reproduced hereinabove. Therefore, the contention of the appellants, civil servants, that reconsideration of the matter by the Selection Board and withdrawal of advice, is not valid act, has no substance hence, it stands repelled.
15. The Selection Board No, 3 after reconsideration of the matter has finally while reversing the earlier recommendations itself proposed that the next meeting of the Selection Board will be convened shortly to reconsider these cases of promotion. Despite the opinion expressed by the Selection Board on 6th June, 2007, the matter has not been finalized uptill now. In this state of affairs, to meet the ends of justice, we deem it appropriate to modify the direction issued by the learned High Court in the impugned judgment and direct the respondents to immediately convene the meeting of Selection Board for consideration of the matter pending since 2006. The civil servants cannot be penalized or deprived of their vested rights due to non-convening of the meeting of Selection Board timely or any other reason, therefore, the Selection Board while considering the matter of eligibility of the appellants, civil servants, for promotion in the relevant grade, shall also consider the retrospective effect of the promotion orders.
16. As the moot points have been attended to and resolved, therefore, ancillary matter raised by both sides, in our opinion, remain of an academic nature.
' In the light of hereinabove stated reasons, while partly accepting the Appeal No, 176/2014, the impugned judgment of the High Court, as concluded in para 14, stands recalled. The observations made in para 6 of the judgment are upheld with the addition of observation made in hereinabove para No, 15.