Ch. Muhammad Ibrahim Zia, C.J.-- All the titled appeals by leave of the Court being arisen out of the common judgment of the Service Tribunal dated 26.10.2015, are being disposed of through this single judgment.
2. According to the summary of the facts, respondents No.1 to 19 in the titled Civil Appeal No.67/2016, filed seven separate service appeals before the Service Tribunal while challenging the seniority list dated 27.10.201 1, notification dated 28.10.201 1 and corrigendum dated 31.10.201 1. They claim that the Secretariat Communication and Works Department vide order beari ng No.146/201 1 dated 27.10.201 1 issued final seniority list of the sub- Engineers (B-17) holding the diploma, including the names of all the contesting parties except Waqar Ahmed and Khawaja Tariq Iqbal whose names were included in the seniority list bearing No.146/II/201 1 which was issued for the sub-Engineers who have obtained the degrees of B.Tech (Hons). The department also issued the notification dated 28.10.2011 and the corrigendum dated 31.10.2011 through which the Overseers and sub-Divisional Officers were promoted/adjusted in the light of the seniority list dated 27.10.2011. They claim that according to the Azad Jammu and Kashmir Public Works Department Service Rules, 1992 the method of recruitment to the posts of Assistants Engineers is; 65% by initial recruitment, 15% by promotion of sub-Engineers possessing qualification of B.Tech (Hons) and 20% by promotion of sub-Engineers having three years diploma of Associate Engineer. As they had obtained the degrees of B.Tech (Hons), therefore, their names should have been listed in the seniority list of B.Tech (Hons) bearing No. 146/II/2011 dated 27.10.2011. The learned Service Tribunal vide consolidated judgment dated 26.01.2015, concluded the matter as follows:- "On the basis of what has been stated above, the appeal No. 988 titled "Rizwan Azad and others versus Azad Govt. and others" and appeal No. 1041 titled "Mushtaq Ahmed Awan versus Azad Govt. and others" are accepted to the extent of common seniority list bearing No.146/201 1 dated 27.10.201 1, which is hereby set aside with the direction that the seniority list of Diploma Holders and B-Tech (Hons) shall be prepared and issued separately . Appeal No. 1066 titled "Asif Assad ullah and others versus Secretary Works and Communication and others", appeal No. 1102 titled "Taj Hussain and others versus Secretary Works and Communication and others", appeal No. 1103 titled "Rizwan Azad and others versus Azad Govt. and others" appeal No. 1138 titled "Ishtiaq Ahmed versus Secretary Works and Communication and others", and appeal No. 1142 titled "Mirza Mujahid Hussian versus Azad Government and others" are filed against the seniority list bearing No.(146)/II/2011 dated 27.10.2011 which is a seniority list of the employees who have improved their educational qualification after availing study leave and only the names of Kh. Tariq Iqbal and Waqar Ahmed are included in the seniority list. We are of the opinion that Asif Assad-ullah did not prove that he has improved his educational qualification as B.Tech(Hons), therefore, to this extent, the appeal is dismissed, whereas the other appellants have improved their educational qualification as B-Tech (Hons). As the names of Abdul-Raheem, Wajid Abbasi, Javed Anwar Abbasi, Ch. Muhammad Sagheer, Altaf Awan and Haseeb Anwar Abbasi are included in the seniority list of Sub-Engineers who have improved their educational qualification as B-Tech (Hons) and Mubarak Ali was in the final semester when this tentative seniority list was issued on 07.11.2007. It also appears from the working paper of Selection Board No.3 that Shoukat Ali had also obtained B Tech(Hons) degree in December, 2006. Mirza Mujahid Hussain has also obtained B-Tech(Hons) degree on 01.10.2008. The department has issued the order on 09.05.2008 that in future, no employee shall improve his educational qualification without obtaining study leave and NOC. The appellants mentioned above have improved their educational qualification before 09.05.2008, therefore, this order does not apply to their extent. They have improved their educational qualification before 09.05.2008 who are entitled to be included in the seniority list of B Tech(Hons), therefore, by accepting all the appeals and by setting aside the seniority list bearing No.(146)/II/2011 dated 27.10.2011, it is directed that the new seniority list of B- Tech(Hons) should be prepared including the names of appellants mentioned above alongwith Kh. Tariq Iqbal and Waqar Ahmed. No order as to costs."
Feeling aggrieved from the impugned judgment of the Service Tribunal, Asif Asadullah, Azad Govt. & others, Waqar Ahmed and Kh. Tariq Iqbal, have filed the titled three appeals.
3. Syed Nazir Hussain Shah Kazmi, Advocate, the learned counsel for the appellant, Asif Asadullah (in Civil Appeal No.66/2016) after narration of necessary facts submitted that the impugned judgment of the learned Service Tribunal to the extent of the appellant is result of misconception of facts and lack of proper appreciation of the record. In support of his arguments he referred to pages 39 and 40 of the appeal filed before this Court and submitted that the appellant qualified B.Tech (Hons) from Preston University of Pakistan on 15 day of August, 2007, therefore, the observation of the Service Tribunal that the appellant has not qualified B.Tech (Hons) degree, is against law. So far as the policy laid down by the Secretary Works on 19.05.2008 that the degree or course acquired by the civil servant without sanction of study leave will not be admissible, is concerned, the appellant acquired the degree much earlier to the issuance of said policy . According to the celebrated principle of law any order or rule affecting the rights of the citizens has to operate prospectively and not retrospectively , therefore, the said policy is not applicable to the case of the appellant. The impugned judgmen t of the Service Tribunal to the extent of the appellant is against facts and law and is not sustainable, thus, while accepting this appeal the authority should be directed to include the name of the appellant in the seniority list prepared for the sub-Engineers who qualified the B.T ech (Hons) degree.
4. In the appeals titled Azad Govt. & others vs. Rizwan Azad & others (Civil Appeal No.67/2016) and Waqar Ahmed & others vs. Rizwan Azad & others (Civil Appeal No.68/2016), the learned counsel for the appellants Mr. Muhammad Zubair Raja, Additional Advocate-General and Mr. Abdul Rasheed Abbasi, Advocate, raised identicalth points in their arguments. Their most stressed point is that none of the appellants before the Service Tribunal, has improved the qualification according to the prescribed manner after obtaining the NOC and sanction of study leave.
The Azad Jammu and Kashmir Study Leave Rules, 1991 are applicable and no civil servant is allowed to improve his qualification during service without proper sanction of the study leave. They also referred to the policy/directive issued by the Secretary Works and Communication on 19.05.2008 according to which the degree obtained by a civil servant without sanction of study leave is invalid and cannot be considered. Admittedly , the contesting civil servants are claiming that they have obtained the B.Tech (Hons) degree during service without any proper sanction of study leave or NOC issued by the appointing authority . The so called NOCs brought on record, have been issued by some incompetent person such like Executive Engineer and Superintending Engineer who are neither authority nor vested with the powers to issue such like certificates. The appeals filed by respondents No.1 to 19 before the Service Tribunal are not competent. The Service Tribunal has wrongly handed down the impugned judgment which runs counter to the statutory provisions of law, therefore, the same is not maintainable and liable to be set-aside while accepting this appeal.
5. In the appeal No.66/2016, titled Asif Asadullah vs. Secretary Works & others, except Ch. Muhammad Aslam Raza, the counsel for the appellants in other two appeals, are counsel for the respondents. They adopted the same arguments (to be mentioned hereinafter).
6. In the appeals No.67 and 68 of 2016, the learned counsel for respondents No.1 to 19, Syed Nazir Hussain Shah Kazmi, Sardar Muhammad Riaz Khan, Ch. Muhammad Aslam Raza, Jahandad Khan Mughal and Syed Shafqat Hussain Gardezi, Advocates, forcefully defended the impugned judgment of the Service Tribunal and submitted that the respondents including Asif Asadullah, are holding B.Tech (Hons) degree.
According to rules, they are entitled for inclusion of their names in the seniority list prepared for the cadre of sub-Engineers holding B.Tech (Hons) degrees. They further argued that according to the expressed provisions of service rules the requirement is B.Tech (Hons) degree with five years experience. The matter whether the degrees have been obtained after sanction of study leave or not, has no concern with the preparation of the seniority list as the matter of sanctioning of study leave relates to discipline and conduct.
All the contesting civil servants were serving in the department. If any of their acts amounts to misconduct the authority at the relevant time should have taken action against them under the relevant law but the civil servants who fulfill the required qualification and vested rights have been accrued to them, cannot be deprived of such right. The Service Tribunal has rightly passed the impugned judgment. The arguments of learned counsel for the appellants in both the appeals are presumptive having no statutory backing. So far as the reference of circular/policy issued by the Secretary Works and Communication dated 19.05.2008 is concerned, the Secretary Works is not a rule framing authority. Such like policy can only be enforced by the rules framing authority while amending the rules. So far as the sanction of study leave, is concerned, it has no application to the case in hand. The appeals filed by the appellants have no substance and are liable to be dismissed.
7. We have heard the learned counsel for the parties and examined the record made available. In the light of the arguments advanced at bar, the common proposition involved in the titled appeals is relating to preparation of the seniority lists for sub-Engineers holding three years diploma and those possessing the qualification of B.E./B.Sc Engineering/AMIE in the relevant discipline/B.T ech (Hons). In addition to qualification of B.Tech(Hons) five years experience is also required, whereas, for B.E./B.Sc Engineering/AMIE three years experience is required. For resolution of this proposition, it is appropriate to refer here section 7 of the Azad Jammu and Kashmir Civil Servants Act, 1976 which speaks that the seniority on initial appointment to a service, cadre, grade or post shall be determined in the prescribed manner . The manner for determination of the seniority has been prescribed under Rule 8 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977.
Although, these statutory provisions are clear but these have to be interpreted while keeping in view the spirit of the Azad Jammu and Kashmir Public Works Department Service Rules, 1992, which provide the manner for appointment against the post of Assistant Engineers (B-17). The same are reproduced as under:- Minimum Qualification for Appointment byMethod of Recruitment Initial Recruitment Promotion 6 7 8 Degree in Engineering in the requisite Discipline from a recognized University or an equivalent qualification and except in a case where section 28(b) of the Pakistan Engineering Council Act, 1976 (v of 1976) applies registration as a professional Engineer with the Pakistan Engineering Council a) 65% by initial recruitment as per col.6. b) 15% by promotion on seniority cum- fitness basis from amongst Sub Engineers possessing qualification of B.E/B.Sc Engineering /AMIE in the relevant discipline /B.T ech (Honours).
Provided that those with B.E/B.Sc.
Engineering /AMIE degree shall have three years experience while those who possess B.Tech (Honours)degree will have 5 years experience as such.
If none is available for promotion then by initial recruitment. c) 20% by promotion on the basis of seniority cum-fitness from amongst Sub- Engineers of the requisite Discipline who hold the minimum qualifications prescribed for initial recruitment as Sub- Engineer in the Department and have been placed in BPS-16 after passing the Sub-Engineers professional Examination.
According to these rules there are two cadres of sub-Engineers; (i) holders of diploma for whom 20% quota is reserved; and (ii) holders of qualification of B.E./B.Sc Engineering/AMIE in the relevant discipline/B.T ech (Honours) for whom 15% quota is reserved. The juxtapose appreciation of Civil Servants Act, 1976, Civil Servants (Appointment and Condition of Service) Rules, 1977 and Public Works Departmen t Service Rules, 1992 makes it clear that the preparation of separate seniority lists of sub-Engineers holding the diploma and those having qualification of B.E./B.Sc Engineering/AMIE in the relevant discipline/B.T ech (Hons), is required.
8. The other important proposition which is the main controversy among the parties is improvement of qualification of B.E./B.Sc Engineering/AMIE in the relevant discipline/B.Tech (Hons) during service. Admittedly, respondents No.1 to 19 and the appellant Asif Asadullah, are holders of B.Tech (Hons) degrees. The learned counsel for the appellants in appeals No.67 and 68 have raised main objection that the claimants obtained the degrees during service without obtaining NOC or sanction of study leave by the competent authority, hence, they cannot claim for entry of their names in the seniority list of sub-Engineers holding the qualification of B.E./B.Sc Engineering/AMIE in the relevant discipline/B.Tech (Honours). However, they failed to substantiate this argument with reference to any statutory provision. According to hereinabove reproduced rules, for promotion against 15% quota the requirement is degree of B.Tech (Hons) plus five years experience. Once it is established that the claimant is holder of required degree from the recognized University or institution, the requirement of the rule is fulfilled. The question that how the degree has been obtained, has no nexus with the rules dealing with the seniority or quota. If at all, it has any substance then it falls within the domain of the rules dealing with the conduct and disciplinary matters. In case, after conducting the proceeding in the prescribed manner according to the spirit of law, it is proved and established that at the relevant time the respondent-civil servants who claim right on the basis of degrees, have committed any misconduct or violated any law, the penalty provided under law can be imposed. Moreover, the conduct of civil servants who were in a position of superintendence and control is also to be considered but on this pretext the civil servants who otherwise fulfill the statutory requirements, cannot be deprived of the rights accrued to them. In this background, the impugned judgment of the Service Tribunal passed in favour of respondents No.1 to 19 is quite legal one calling for no interference. Therefore, the appeals titled Azad Govt. & others vs. Rizwan Azad & others (67/2016) and Waqar Ahmed and another vs. Rizwan Azad & others (68/2016) have no substance. The same stand dismissed with no order as to costs.
9. So far as the appeal titled Asif Asadullah vs. Secretary Works and others, is concerned, in view of the hereinabove stated position he has obtain ed the degree of Bachelor of Technology (Hons) from Preston University of Pakistan on 15 day of August, 2007. The Service Tribunal has fell in error of fact while observing that he has not obtained the degree before 19.05.2008. According to the produced degree he has passed the same on 15.08.2007, thus, it is legally required that he should be treated like other civil servants. Therefore, the impugned judgment of the Service Tribunal to his extent is recalled and it is declared that his name shall also be entered in the seniority list alongwith the respondents No.1 to 19 as directed by the Service Tribunal.
In view of the above, the appeal titled Asif Asadullah vs. Secretary Works and others (Civil Appeal No. 66/2016) stands accepted, whereas, the appeals titled Azad Govt. & others vs. Rizwan Azad & others (Civil Appeal No. 67/2016) and Waqar Ahmed and another vs. Rizwan Azad & others (68/2016) stand dismissed. No order as to costs.