Raja Saeed Akram Khan, J.-- The titled appeals by leave of the Court have been directed against the common judgment of the Service Tribunal dated 15.07.2015, whereby the appeal filed by the respondent, Syeda Sabeen Naz Gillani, has been accepted. As both the appeals arise out of the same judgment, therefore, these are being disposed of through this single judgment.
2. The facts necessary for disposal of these appeals are that the respondent, herein, (in both the appeals), filed an appeal before the Service Tribunal through which she challenged the seniority list of the Section Officers of the Services and General Administration Department issued on 18.02.2014. It was averred in the appeal that she is a permanent employee of Services and General Administration Department. In the year 2009, some posts of Section Officers, B-17, were advertised in the quota of different units. She participated in the selection process and qualified the test/interview and stood at serial No.1, of the waiting list. She filed a writ petition before the High Court claiming therein that some posts have been withheld by the authorities and not advertised. The learned High Court while accepting the writ petition issued a direction to the concerned authorities to appoint the respondent-petitioner , therein. In compliance of the judgment of the High Court, she was appointed on 29.04.2013. The Services & General Administration Department issued an office memorandum regarding the seniority list of the Section Officers. She submitted an application for insertion of her name at the proper place in the seniority list. Another office memorandum was issued wherein her name was placed at serial No.72 of the tentative seniority list, whereupon, she filed objections. The department vide notification dated 18.02.2014, issued final seniority list, wherein, her name has been placed at serial No.72. She prayed for setting aside the seniority list to the extent of serial No.65 to 71 and placing her name at serial No.65 of the seniority list. The Service Tribunal after necessary proceedings vide impugned judgment dated 15.07.2015, accepted the appeal and issued the direction to the concerned authorities to enter the name of the respondent, herein, at the proper place while treating her date of appointment as 10.03.201 1, on which the other officers of the batch joined their service. Hence, these appeals by leave of the Court.
3. Mr. Asghar Ali Malik, Advocate, the learned counsel for the appellants, Azad Govt. & others , argued that the impugned judgment is against law and the facts of the case which is not sustainable in the eye of law. He contended that the respondent filed appeal before the Service Tribunal without annexing the certified copy of the impugned notification, therefore, the appeal before the Service Tribunal had been filed in violation of Rule 7 of the Service Tribunal Procedure Rules, 1976 which was liable to be dismissed but the learned Service Tribunal failed to appreciate this aspect of the case. He contended that principle of keeping the seniority in accordance with order of merit determined by the selection authority could not apply in the case of the respondent as she has been appointed after a considerable period from the appointments of the private respondents through a different method, but this aspect of the case escaped the notice of the Service Tribunal while pass ing the impugned judgment. He further contended that the proforma respondents were appointed/promoted as Section Officers much prior to the appointment and joining of the respondent, therefore, the respondent has no right to claim herself as senior to them. He maintained that after perusing the judgment of the High Court, in which the direction for appointment of the respondent was issued, it becomes clear that the respondent has been appointed against the post which was made available after the advertisement, thus, the learned Service Tribunal was not justified to hold that the respondent is senior to the proforma respondents. Even otherwise, the respondent was appointed in the year 2013 much after the appointment/promotion of the proforma respondents, therefore, she is not senior in any way to the proforma respondents. He lastly submitted that as per principle of law enunciated by this Court in a number of pronouncements an appointment by initial recruitment cannot be given retrospe ctive effect for the purpose of seniority from the date when the civil servant was not in service at all.
4. Raja Amjad Ali Khan, Advocate, the learned counsel for the appellants, Raja Muhammad Arif & others , mostly adopted the arguments advanced by Mr. Asghar Ali Malik, Advocate, however , while making addition he submitted that the observation made by the learned Service Tribunal in paragraph 6 of the impugned judgment that it has been mentioned in the appointment notific ation of the respondent that the seniority of officers will be determined in accordance with the general order of merit, is against the record as nothing has been mentioned regarding the determination of the seniority in the appointment notification of the respondent.
5. On the other hand, Syed Asim Masood Gillani, Advocate, the learned counsel for the respondent strongly controverted the arguments advanced by the learned counsel for the appellants. He submitted that the impugned judgment is perfect and legal which is not open for interference by this Court. He added that the appellants were promoted as Section Officers, B-17, from grade B-16 against the departmenta l quota vide notification dated 23.10.2012, whereas, the batch fellows of the respondent were appointed on the recommendations of the Public Service Commission through notification dated 10.03.201 1. When the batch fellows of the respondent joined their duties at that time the appellants were still serving in grade, B-16. In such state of affairs, the Service Tribunal was fully justified to hold that the respondent is senior to the appellants. He added that the batch fellows of the respondent are more senior than the appellants, therefore, the respondent is also senior to them. He further added that the determination of the seniority of civil servants has been provided in Rule 8(1) of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rule, 1977, wherein, it has clearly been mentioned that in the case of persons appointed by initial recruitment their seniority shall be determined in accordance with the general order of merit assigned by the selection authority . The learned Service Tribunal after appreciating the relevant provision of law and the case law on the subject passed the well reasoned judgment and has not committed any illegality .
6. We have heard the arguments of the learned counsel for the parties and gone through the record along with the impugned judgment. The controversy involved in the matter in hand relates to the seniority of Section Officers of the Services and General Administration Department. To refresh the memory the facts of the case are again discussed here. The appellants, Raja Muhammad Arif and others were appointed as Section Officers by promotion vide notification dated 23.10.2012, whereas, the respondent, Syeda Sabeen Naz was appointed as Section Officer, in compliance of the judgment of the High Court, vide notification dated 29.04.2013. The Services and General Administration Department issued final seniority list on 18.02.2014, in which the names of the appellants were placed at serial No.67, 70 and 71 and the name of the respondent was placed at serial No.72. The respondent challenged the seniority list before the Service Tribunal, claiming therein, that she qualified the test/interview conducted by the Public Service Commission in the year 2011, however , her appointment order was not issued along with others batch fellows. She sought direction for her appointment by filing writ petition before the High Court. The learned High Court issued the direction for her appointment, whereupon, her appointment notification was issued on 29.04.2013. As she qualified the test/interview conducted in the year 2011, therefore, her seniority will be reckoned along with the group appointed in pursuance of the recommendations made by the Public Service Commission at the relevant time. The learned Service Tribunal while accep ting the appeal held that the appointment of the appellant made on 29.04.2013, in compliance of the judgment of the High Court, will be deemed as made on 10.03.201 1. Now the claim of the appellants in the instant appeals is that the appellants, Raja Muhammad Arif & others, were appointed vide notification dated 23.10.2012, and the respondent, Syeda Sabeen Naz, was appointed vide notification dated 29.04.2013, after the appointment of the appellants; therefore, they are senior to the respondent. The learned Service Tribunal while passing the impugned judgment mainly relied upon Rule 8 of Azad Jammu and Kashmir Civil Servants (Appointments and Conditions of Service) Rules, 1977 and the judgment of this Court delivered in a case titled Muhammad Nazir Mughal v. Abdul Akbar Tahir & others (civil appeal No.82 of 2007, decided on 15.06.201 1), therefore, to appreciate the point; whether the learned Service Tribunal rightly applied the statutory provision and the principle of law enunciate d by this Court in the judgment (supra) or not, we have also considered the same. Under Rule 8 (1) (a) of Rules, 1977 the inter-se seniority of persons appointed by initial recruitment in the same grade shall be determined in accordance with the order of merit, assigned by the selection authority . In the explanation clause of Rule (supra), it has been provided that in case a group of person is selected for initial appointment at one time, the earliest date on which anyone out of the group joined the service will be deemed to be the date of appointment of all persons in the group. In the case in hand, the appointment order of the batch fellows of the respondent was issued on 11.02.201 1. The respondent filed writ petition before the High Court and the learned High Court accepted the same while issuing the direction that the Public Service Commission shall recommend her against one of the withheld posts of Section Officers, B-17 and the Government shall appoint her on the basis of the recommendations of the Public Service Commission. The judgment of the High Court was not challenged before this Court rather concerned authorities in compliance of the same issued the appointment order of the respondent, meaning thereby that it has been admitted by the concerned authorities that when the other batch fellows of the respondent were appointed on 11.02.201 1, the post was available but the respondent was illegally deprived of her vested right. As the right of appointment was accrued to the respondent along with her batch fellows, therefore, in view of the Rule (supra) the appointment of the respondent will be deemed to be made on the date when the group, along whom she qualified the test/interview , was appointed. We deem it pertinent to mention here that normally the seniority is to be determined on the basis of date of continuous/actual appointment, however , it is now settled that where a civil servant has been deprived of his/her vested right; to redress his/her grievance and to protect his/her accrued right, the matter of seniority should be considered retrospectively . Although, in the case reported as Syed Subtain Hussain Kazmi v. Syed Mumtaz Hussain Kazmi [2013 SCR 889], the proposition was quite different, however , this Court after thoroughly discussing the terms 'regular appointment', 'continuous service' etc. has held as under: "21. In the light of hereinabove discussed statutory provisions and legal precedent s, it becomes clear that the anti- dated/proforma appointments are not regular appointments rather these fall within the domain of residuary powers of the Government, derived under section 22 of the Civil Servants Act for just and equitable purpose. According to law of the land, such appointments normally are made for redressal of any injustice caused to a civil servant to the extent of his monitory benefits etc. but seniority cannot be determined from the dates of such retrospective appointments rather the seniority has to be determined from the date of regular appointment.
22. As we have already observed that there may be some exceptional cases or eventualities in which for redressal of grievance of an individual civil servant and protection of his accrued rights, the issue of seniority should also be considered."
In the case in hand, it is an admitted fact that without any fault on the part of the respondent, she was not appointed along with her batch fellows. In such state of affairs, the seniority of the respondent will be determined according to general order of merit assigned by the Public Service Commission from the date when her batch fellows were appointed as law is very much clear on the point that in case of persons appointed by initial recruitment, the seniority shall be determined in the light of general order of merit determined by the selection authority . In our estimation, the learned Service Tribunal has not committed any illegality while appreciating the statutory provision of law .
7. In the light of the dictum laid down by this Court in an unreported judgment titled Muhammad Nazir Mughal v.
Abdul Akbar Tahir & others (civil appeal No.82 of 2007, decided on 15.06.201 1) relied upon by the learned Service Tribunal, we have examined the case in hand. The claim of the appellants Raja Muhammad Arif & others is that they were appointed/promoted prior to the appointment of the respondent; therefore, the respondent cannot be declared senior to them. In the instant case, the respondent was appointed after more than 6 months from the appointment/promotion of the appellants, whereas, in Muhammad Nazir Mughal' s case (supra), the appellant, therein, was appointed after more than 9 months from the appointment of the contesting respondents and this Court declared him senior to the others. Almost same proposition was under consideration in that case as initially the appellant, therein, was not appointed along with his batch fellows, due to the fault of the authority and later on after more than 9 months from the appointment of his batch fellows he was appointed. This Court held that his seniority will be reckoned along with his batch fellows. It will be useful to reproduce here the relevant portion of the judgment supra which reads as under:- "15. In the case in hand, all the posts were advertised through a single advertis ement. The order of merit was prepared by the Public Service Commission, however , one post from the quota allocated for District Mirpur was withdrawn by the Electricity Department hence, the name of appellant was not entered at serial No.4 of the merit list for district Mirpur . During pendency of writ petition filed by the appellant, the appointment order of appellant was issued on 21.2.1998. General order of merit, which was prepared by Public Service Commission, vide its memorandum on 4.3.1998 does not conta in the name of the appellant, however , later on, when the Public Service Commission was directed by the Prime Minister Secretariat to provide the general order of merit determined by the Public Service Commission and was also directed that the name of the appellant be also included among the appointees, the Public Service Commission, in its comments dated 17.1.2005, categorically stated that in the order of merit, Muhammad Nazir Mughal, present appellant, in appeal No.82 of 2007 falls after the name of Farooq Ahmed which was entered at serial No.12 of the general order of merit and before the name of Sohail Rashid Malik who was entered at serial No.13 of the said general order of merit, meaning thereby that the name of the appellant was to be written at serial No.13 of the general order of merit. General order of merit was changed in the manner that the merit drawn by Public Service Commission was to the extent of 25 candidates, however , after entering the name of the appellant at serial No.13, the order of merit was drawn for 26 candidates. According to the said order of merit, the name of the appellant herein, finds place at serial No.13 whereas the names of respondents are entered at serial No.14 to 26. As the appellant and the respondents were selec ted against the posts advertised by the Public Service Commission dated 24.10.1994, and all of them appeared for test and interview and the name of appellant has been placed at serial No.13 of the general order of merit drawn by Public Service Commission.
Hence, in our view, the seniority list issued by Electricity Department was prepared in accordance with sub rule (1)
(a) of rule 8 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977.
16..................
17..................
18. It shall not be out of place to mention here that the name of appellant could not be entered firstly in the general order of merit prepared by the Public Service Commission due to the fact that one post of Assistant Engineer Electricity B-17 reserved for District Mirpu r was withdrawn by the Electricity Department and not due to any fault of the appellant."
After going through the judgment (supra), we are satisfied that the learned Service Tribunal while applying the principle of law enunciated by this Court in the referred case law has also not committed any illegality .
8. At leave granting stage the main argument of the learned counsel for the appellants was that the judgment of this Court delivered in a case titled Khurshid-ul-Hassan Bazmi v. Azad Government & others (civil PLA No.135 of 2009, decided on 15.01.201 1), is applicable in the case in hand but the learned Service Tribunal has not considered the same despite the fact that the same was referred to at the time of arguments before the Service Tribunal. In this regard, a point was also formulated; whether the judgment of the Service Tribunal is in line with the judgment of this Court delivered in the case supra or not. After going through Khurshid-ul-Hassan Bazmi' s case it appears that a different proposition was under consideration in that case. The appellant, therein, Khurshid-ul- Hassan Bazmi was not recommended by the Public Service Commission on the ground that he could not attain the merit position against the quota of his relevant unit, i.e. District Poonch. This Court issued the direction that the petitioner (Khurshid-ul-Hassan Bazmi ) be recommended against the posts reserved for District Bagh or Kotli as nobody could qualify from those units. Later on, Khurshid-ul-Hassan Bazmi claimed seniority along with the group recommended by the Public Service Commission which was denied by this Court while delivering the judgment relied upon by the appellants. Khurshid-u l-Hassan Bazmi' s case was also referred by one of the parties at the time of hearing of Muhammad Nazir Mughal' s case and this Court while recording the findings in paragraph 17 of the judgment distinguished the same in the following manners:- "17. We cannot agree with the contention of Syed Nazir Hussain Shah Kazmi Advocate, the learned counsel for respondent Abdul Akbar Tahir, that this Court in a case titled Khurshid-ul-Hassan Bazmi v. Azad Govt. & others, decided on 15.1.201 1 has held that a person appointed first shall rank senior to those who were appointed at a later stage. Proposition in said case was quite different as Khurshid-ul-Hassan Bazmi was not recommended by Public Service Commission for the reason that he could not attain the merit for appointment against the quota of District Poonch. However , it was directed by this Court that the petitioner be recommended against the post reserved for District Bagh or Kotli as nobody could qualify from these two Units. The fact remains that Khurshid-ul- Hassan Bazmi was not selected against the quota of District for which he applied for and he was given favour by this Court to be appointed against the quota of District Bagh or Kotli whereas in the case in hand, the appellant appeared before the Public Service Commission along with respondents and he was placed at serial No.13 of the general order of merit prepared by the Public Service Commission. However , due to withdrawal of one seat of Assistant Engineer Electricity B-17, from the quota allocated for District Mirpur , his name was not entered in the list of successful candidates but during pendency of the writ petition filed by the appellant in the High Court, his appointment order was issued on 21.2.1998, against the quota of District Mirpur ."
Keeping in view the controversy involved in the case in hand and Khurshid-ul-Hassan Bazmi' s case, we are of the view that the dictum laid down in Khurshid-ul-Hassan Bazmi' s case is not applicable in the instant case, therefore, the learned Service Tribunal has not committed any violation of law laid down by this Court.
9. The learned counsel for the appellants raised an objection that the respondent filed appeal before the Service Tribunal without annexing the certified copies of the impugned notification and the other mandatory documents; therefore, the same was not maintainable in view of the Rule 7(e) of the Service Tribunal Procedure Rules, 1976. It may be observed here that in the case reported as Iffat Bibi v. Azad Government & 19 others [2015 SCR 83], this Court dismissed the appeal filed before the Service Tribunal on the ground of non-compliance of Rule 7(e) of the Service Tribunal Procedure Rules, 1976, however , later on the said judgment has been overruled by a full Court judgment reported as Tanveer Fatima v. Divisional Director Schools & others [2016 SCR 714]. In the latest judgment, same point was involved, this Court discussed Rule 7 (e) and Rule 10 of the Azad Jammu and Kashmir Service Tribunal Procedure Rules along with the case law on the subject in detail and held that the Registrar of the Service Tribunal under Rule 10 of the Service Tribunal Procedure Rules is duty bound to scrutinize the appeal when the same is presented before him. If the appeal is drawn up in accordance with Rule 7 then the Registrar shall entertain the same and if there is any deficiency then the Registrar shall record an order under Rule 10(1) (ii) on the memorandum of appeal while pointing out the deficiency and return the same by specifying the time for resubmitting the appeal. In case, the appellant failed to resubmit the appeal after curing the deficiency within the period specified by the Registrar then the appeal shall be deemed to be dismissed. This Court further held that the appeals were not accompanied by the certified copies of the impugned orders and the Registrar failed to point out the deficiency . It is fault of the Tribunal/Court for which a litigant may not be penalized and the appeals cannot be dismissed. The relevant portion of the judgment supra reads as under:- "Thus, we draw the conclusion that under rule 10 of Rules, 1976, it is the duty of the Registrar Service Tribunal to scrutinize the appeal when it is presented to it. If it is drawn up in accordance with rule 7, he shall entertain it, register it in the relevant register and place the same before the Tribunal for orders and if there is some deficiency then the Registrar shall record an order under Rule 10(1) (ii) on memorandum of appeal, pointing out the deficiency and return the same by specifying the time for resubmitting the same and in case of failure, the appeal shall be deemed to be dismissed. In all the above referred appeals the Registrar of the Service Tribunal failed to scrutinize the appeals under rule 10 of Rules, 1976 and without scrutinizing entertained the same and entered the appeal in the register . The appeals were not accompanied by the certified copies of the order impugned. The Registrar failed to point out the deficiency . It was fault of the Tribunal/Court for which a litigant may not be penalized and the appeals cannot be dismissed." In the instant case, the Registrar of the Service Tribunal also failed to point out that the appeal has been filed without annexing the certified copies of the mandatory documents, therefore, it was fault of the Tribunal and in view of the dictum laid down in the referred report the appeal before the Service Tribunal cannot be dismissed on this ground. Hence, this objection is hereby repelled.
10. The learned counsel for the appellants, Raja Muhammad Arif & others argued that the findings recorded by the Service Tribunal in paragraph 6 of the impugned judgment are against the record. The examination of the impugned judgment shows that the learned Service Tribunal in paragraph 6 of the impugned judgment recorded the findings that in the appointment order of the respondent, herein, available on record as annexure "PC-3", it has been mentioned that the seniority of officers will be determined in accordance with the general order of merit issued by the Public Service Commission. On the scrutiny of the record, it appears that the findings of the learned Service Tribunal based on misconception as the appointment notification of the responde nt is available on the file of the Service Tribunal as annexure "PC" in which no such condition has been mentioned. Through notification, available on the file of the Service Tribunal, as annexure "PC-3" the batch fellows of the respondent were appointed.
However , this misconception does not af fect the conclusion drawn by the Service Tribunal.
In the light of above discussion findings no force both the appeals are hereby dismissed with no order as to costs.