Raja Saeed Akram Khan, J.-- The supra appeals by leave of the Court have been directed against the consolidated judgment of the Service Tribunal dated 07.04.2014, whereby, one of the appeals filed by the appellant, in appeal No.318, Zahid Mehmood Khan, has been partly accepted, whereas, the other has been dismissed. Since 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 the instant appeals are that Zahid Mehmood Khan, appellant, herein, in appeal No.318 and respondent, herein, in appeal No.179, filed an appeal before the Service Tribunal, challenging the vires of notification dated 20.02.2008 on the ground that there is no law through which a Private Secretary serving in Shariat Court of Azad Jammu & Kashmir can be transferred or inducted as Section Officer in the Law, Justice, Parliamentary Affairs & Human Rights Department. It was further averred in the appeal that the concerned Selection Board recommended the induction of respondent, Amjad Ali Khan Minhas, on 02.02.2008 but against the recommendations, retrospective effect was given to him illegally from the date when he was transferred from Shariat Court to Law Department, i.e. 19.01.2007. The lien of respondent, Amjad Ali Khan Minhas, was kept in the Shariat Court till 20.02.2008, therefore, retrospective effect to his induction in the Law Department could not be given. During the pendency of appeal, vide notification dated 25.09.2009, with the consent of Chairman Selection Board No.2, respondent, Amjad Ali Khan Minhas, was promoted on officiating basis as Deputy Secretary Law (B-18). The appellant, Zahid Mehmood Khan also challenged the notification dated 25.09.2009, by filing another appeal before the Service Tribunal. The learned Service Tribunal after necessary proceedings vide impugned consolidated judgment dated 07.04.2014, partly accepted the first appeal while setting aside the notification dated 20.02.2008 to the extent of retrospective effect, whereas, dismissed the second appeal while observing that the same has become infructuous as presently both the contestants have been permanently promoted as Deputy Secretary, hence, these appeals by leave of the Court.
3. Sardar Karam Dad Khan, Advocate, the learned counsel for the appellant, Amjad Ali Khan Minhas, in appeal No.179, 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 appellant was duly appointed by transfer against the vacant post of Section Officer in Law, Justice, Parliamentary Affairs & Human Rights Department vide order dated 18.01.2007.
He submitted that the recommendations of the Selection Board were properly made and in this regard the notification dated 20.02.2008, was validly issued, whereby the retrospective effect has been given to the appointment of the appellant from the date when he was transferred from Shariat Court to Law Department. He added that the learned Service Tribunal without appreciating the relevant provisions of law and the notification dated 20.02.2008, passed the impugned judgment. He contended that the seniority shall reckon from the date when the appellant was transfer to the Law Department, i.e., 18.01.2007, therefore, the departmental authority on the recommendations of the Selection Board has rightly given the retrospective effect to his appointment from the said date. Thus, there was no deviation from any rule or law but all these aspects escaped the notice of the Service Tribunal while handing down the impugned judgment. He contended that the respondent, Zahid Mehmood Khan, was not an aggrieved person as no legal right of the said respondent was infringed through notification dated 20.02.2008, issued in continuation of notification dated 18.01.2007, because he was no more in service on 19.01.2007. Moreover, the respondent was transferred along with post during the financial year 2008-09 to the Prime Minister Secretariat; hence, the seniority of the respondent is to be reckoned in the Law Department from the date when the post was again transferred from Prime Minister Secretariat to Law Department i.e. 10.02.2010. He lastly submitted that it was duty of the relevant authorities to place the case of the appellant before the Selection Board immediately after his appointment as Section Officer but the authorities failed to process the case of the appellant well in time. Thus, the delay in convening the meeting of the Selection Board was not a fault on the part of the appellant and he cannot be penalized for the mistake of the authority. He relied upon the cases reported as Muhamad Naseem Ahmad and 18 others v. Miss Azra Feroz Bakht and 58 others [PLD 1968 SC 37], Muhammad Nasim Ahmad v. Central Board of Revenue and another [1975 SCMR 505], Araab Mukhtar Ahmed v. Secretary to Government of Pakistan, Establishment Division, Rawalpindi [1983 PLC (C.S.) 104], Syed Rasool Shah v. Chief Engineer, Punjab Highway Department and 3 others [1983 PLC (C.S.) 368], Muhammad Azad Khan v. The Secretary AJ&K Council [1993 SCR 387], Muhammad Siddique Ahmad Khan and others v. Pakistan Railways through Financial Advisor and Chief Accounts Officer Pakistn Railways, Lahore and others [1997 SCMR 1514], Sikandar Hayat v. Government of Pakistan and others [1983 PLC (c.S.) 393], Din Muhammad v. Director General, Pakistan Post Office, Islamabad and 20 others [2003 SCMR 333], Muhammad Arshad Sultan, Section Officer, Cabinet Division, Islamabad and another v. Prime Minister of Pakistan, Islamabad and others [PLJ 1996 SC 1742], Sh. Manzoor Ahmed v. Azad Govt. & another [1994 SCR 297] and Iqbal Hussain Sheikh and 2 others v. Chairman, Federal Board of Revenue and another [2013 SCMR 281].
4. On the other hand, Mr. Asghar Ali Malik, Advocate, the learned counsel for the appellant, in appeal No.318, Zahid Mehmood Khan, while opposing the arguments advanced by Mr. Karam Dad Khan, Advocate, submitted that the learned Service Tribunal was fully justified to set aside the notification dated 20.02.2008, to the extent of giving retrospective effect to the appointment of the appellant, Amjad Ali Khan Minhas; however, the learned Service Tribunal has not adhered to the provisions of rule 9(1) of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 which provide that the appointment cannot be made without recommendations of the Selection Board, whereas, in the case in hand, the transfer/appointment notification of Amjad Ali Khan Minhas, dated 18.01.2007, was issued without recommendations of the Selection Board. In this way, the appointment notification (supra) was liable to be set aside being contrary to the rules. He contended that the appellant, Zahid Mehmood Khan, was duly inducted in service on the recommendations of the Public Service Commission on regular basis on 20.11.2007, whereas, the Selection Board made recommendations in favour of the respondent, Amjad Ali Khan on 02.02.2008 in which no retrospective effect has been given to his appointment. Thus, the notification dated 20.02.2008, through which retrospective effect has been given to the appointment of Amjad Ali Khan Minhas was against law and the appellant is senior to the respondent. He lastly submitted that during the pendency of appeal before the Service Tribunal the respondent, Amjad Ali Khan Minhas, was promoted on officiating basis as Deputy Secretary Law (B-18) vide order dated 25.09.2009, the appellant, Zahid Mehmood Khan, filed second appeal against illegal officiating promotion notification (supra) but the learned Service Tribunal dismissed the said appeal without assigning any reason.
5. Sardar Javed Naz Khan, the learned Additional Advocate-General also adopted the arguments advanced by the learned counsel for the appellant, Amjad Ali Khan Minhas, in appeal No. 179.
6. We have heard the learned counsel for the parties and perused the record along with the impugned judgment. It is spelt out from the record that both the contestants were appointed as Sections Officers (B-17), in the Law, Justice, Parliamentary Affairs and Human Rights Department on different dates. The appellant, Amjad Ali Khan Minhas, was appointed against the post of Section Officer by transfer from Shariat Court vide notification dated 18.01.2007 and later on vide notification dated 20.02.2008, he was permanently inducted in Law, Justice, Parliamentary Affairs and Human Rights Department as Section Officer on the recommendations of the Selection Board. While issuing the notification dated 20.02.2008, retrospective effect was also given from the date of his transfer from Shariat Court i.e. 19.01.2007. The appellant, Zahid Mehmood Khan, was appointed on the recommendations of Public Service Commission on regular basis vide notification dated 22.11.2007. The claim of the appellant, Amjid Ali Khan Minhas, is that he was appointed by transfer as Section Officer on 19.01.2007; therefore, retrospective effect has rightly been given to his appointment by the competent authority from the said date. The appellant, Amjad Ali Khan Minhas, in support of his claim has heavily relied upon the notification dated 20.02.2008, in which the retrospective effect has been given. For better appreciation the relevant portion of the notification (supra) is reproduced here which reads as under:- {{URDU TEXT}} The recommendations made by the Selection Board on 02.02.2008, for permanent induction of the appellant, Amjad Ali Khan Minhas, read as under:- {{URDU TEXT}} After going through the relevant notification and the recommendations of the Selection Board, it appears that the appellant, Amjad Ali Khan Minhas, was appointed by transfer under rule 9(1) of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, moreover, while making the recommendations retrospective effect was not recommended by the concerned Selection Board. It appears that both the contestants are claiming the seniority, whereas, the record shows that their seniority has not been determined by the concerned authority as yet, moreover, the question of seniority has not been decided by the Service Tribunal through the impugned judgment. Thus, in such state of affairs, it is premature to discuss the matter of seniority at this stage. After examining the record and the arguments of the learned counsel for the parties it reveals that the controversy involved in the matter is regarding the interpretation of rule 9(1) of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. To resolve the same it will be useful to reproduce here the relevant rule which reads as under:- "9. Appointment by promotion:- (1) Appointments by promotion or transfer to posts in various grades shall be made on the recommendations of the appropriate committee or board."
The bare reading of the rule (supra) shows that the language used in the same un-ambiguously speaks that the appointment shall be considered from the date of recommendations of Selection Board/ Committee. This Court in a case reported as Mst. Rafiya Latif v. Secretary Education and another [2003 SCR 264], while dealing with the proposition has observed as under:- "The case of the appellant was never sent to the Selection Board along with other eligible candidates for its recommendations nor the Minister Incharge had approved any such recommendations, therefore, the illegal exercise of jurisdiction on the part of Divisional Director Schools has not vested any legal right to the appellant.
The Service Tribunal summoned the record of the Selection Committee but no such record was available with the Education Department. Even if there would have been any recommendations of the Selection Committee, those would have no legal importance because Selection Committee can recommend for promotion only such employees who are serving in various departments of the Government below B-15. Keeping in view the service laws in force in Azad Jammu and Kashmir the promotion order without the recommendations of the Selection Committee or Selection Board is illegal and confers no right upon the promotee. Rule 9 of the Rules of 1977 may be referred in support of this finding wherein it has been made obligatory for the competent authority to make appointment by promotion or transfer to post in various grades upon the recommendations of the appropriate Committee or Board. As the suitability of the appellant for the post of Senior Teacheress was not judged by the Selection Board, nor was she even recommended by the Selection Board, therefore, the whole process initiated by the Divisional Director despite two corrigendum issued by him did not confer any right upon her."
(Underlining is ours)
As in the case in hand admittedly the recommendations for the appointment of the appellant were made by the Selection Board on 02.02.2008, therefore, keeping in view the statutory provision as well as the case law referred to hereinabove his permanent induction in the Law Department will be reckoned from the said date.
Thus, it can safely be said that the retrospective effect given by the authority to the appointment of the appellant, Amjad Ali Khan Minhas, in the appointment order dated 20.02.2008, is against the spirit of rule 9(1) of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, which cannot be endorsed.
7. Keeping in view the nature of the case, we do not inclined to consider the point agitated by the learned counsel for the appellant, Amjad Ali Khan Minhas, that the respondent, Zahid Mehmood Khan, was transferred along with post to the Prime Minister Secretariat and later on vide notification dated 10.02.2010, he was transferred from Prime Minister Secretariat to Law Department, hence, his seniority is to be reckoned from 20.02.2010, coupled with the other point that delay in convening the meeting of the Selection Board of the appellant is the fault of the authority for which the appellant cannot be penalized; at this stage, as the appellant has not filed any appeal in this regard at the appropriate forum, moreover, the matter of seniority is not before us. However, in the interest of justice it may be observed here that after determination of the seniority by the concerned authority if the appellant finds himself aggrieved, he may agitate these points at the proper forum.
8. So far as, the appeal of the appellant, Zahid Mehmood Khan, is concerned, he filed first appeal before the Service Tribunal mainly on the ground that retrospective effect has wrongly been given to the appointment of the respondent, Amjad Ali Khan Minhas. The learned Service Tribunal while accepting this claim has already set aside the appointment notification to the extent of retrospective effect. The other point agitated by the appellant in the appeal before the Service Tribunal that the respondent could not be appointed by transfer from Shariat Court as Section Officer Law Department has also been resolved by the Service Tribunal in a legal manner as the respondent was transferred from Shariat Court to Law Department vide notification dated 19.01.2007 and the appellant has not challenged the same. Even otherwise, during the course of arguments in this regard the assistance was sought on this point, whereupon, the learned counsel for the appellant, Amjad Ali Khan Minhas, drew the attention of this Court towards section 12 of the Shariat Court Act, 1993 and also referred to Schedule- VIII of the Rules of Business, 1985 in which it has been provided that the employees of the Shariat Court can be transferred to the Law Department. On this, the learned counsel for the appellant, Zahid Mehmood Khan, has also frankly conceded the stance taken by the learned counsel for the appellant, Amjid Ali Khan Minhas. Thus, there is no need to further dilate upon this issue. The appellant, Zahid Mehmood Khan, through second appeal before the Service Tribunal challenged the officiating promotion of the respondent, Amjad Ali Khan Minhas and during the pendency of appeal both the contestants have been promoted as Deputy Secretary (B-18), on permanent basis vide notifications dated 18.03.2014. As the officiating promotion does not create any right of seniority, therefore, after the promotion of both the contestants on the permanent basis the learned Service Tribunal rightly dismissed the appeal as the same had become infractuous.
9. After examining the facts of the case and the relevant law, we are of the view that the learned Service Tribunal has not committed any illegality while passing the impugned judgment, hence, interference by this Court is not warranted under law. The case law referred to and relied upon by the learned counsel for the appellant, Amjad Ali Khan Minhas, having distinguishable facts and features is not applicable to the case in hand, therefore, need not be discussed.
In view of the above, both the appeals having no substance are hereby dismissed with no order as to costs.