Mohammad Azam Khan, CA.--The captioned Appeals No, 286 of 2015 and 287 of 2015 arise out of the common judgment of the Service Tribunal dated 22.4.2015, whereas, Appeal No, 279 of 2014 arises out of the judgment of the High Court dated 3.7.2014. The matter involved in all the three appeals is the same, therefore, all these appeals are disposed of through this proposed single judgment.
2. The appellants in Appeal No, 279 of 2014 preferred a writ petition before the High Court for restraining the respondents, therein, from re-examining the seniority list of B.Tech (Hons)/B.Sc. Electrical Sub Engineers in the Electricity Department issued on 11.2.2009.
A learned Judge in the High Court after necessary proceedings has dismissed the writ petition through the impugned judgment dated 3.7.2014.
3. The background of Appeal Nos. 286 of 2015 and 287 of 2015 is that the respondents, herein, in both the appeals filed different appeals before the Service Tribunal against Notifications No, 10675-83/2009 dated 11.6.2009, No, 12515-29/2009 dated 29.6.2009, No, 17417-25/2009 dated 4.9.2009 and No, 17495-17504/2009 dated 4.9.2009, No, 17943-52 dated 6.12.2010, No, 19013-724 dated 11.12.2010, No, 19096-19111 dated 13.12.2010 No, 20380-90 and No, 20391-20400 dated 30.12.2010, on the ground that the appellants, therein, are permanent employees of the Electricity Department presently posted as Sub-Engineers, Electricity, who have also obtained the degree of B.Tech (Hons). The private respondents, therein, who are junior to the appellants have illegally been appointed on current charge basis and officiating basis as Assistant Engineers (B-17) through the above referred notifications.
The said notifications, have not been communicated to them, however, on gaining the knowledge of the impugned notifications the appeals were filed, hence, from the date of knowledge, the appeals are well in time. It was alleged that the department also issued the seniority lists of B.Tech (Hons) and B.Sc. Electrical Sub-Engineers in violation of the Rules. The appellants are senior to private respondents, therein, and have also better merit and service record, whereas the private respondents, therein, who are junior to the appellants have illegally been appointed to the posts of higher grade in clear violation of law, therefore, the impugned notifications are liable to be set aside.
The Service Tribunal consolidated all the appeals and decided the same through the impugned judgment dated 22.4.2015,. in the manner that the impugned notifications relating to the. officiating/ current-charge promotion, have been issued without considering the appellants, who are senior to the private respondents according to the seniority list of Sub-Engineers. The department has to firstly, determine the seniority of the relevant cadres diploma folders Sub Engineers/B.Tech. (Hons.) employee of the department according to the departmental, rules on the basis of their first appointment/ induction into service and after completion of seniority the process of selection of eligible employees through the Selection Board may be completed within two months from the date of this order, failing which the impugned notifications of current charge, officiating charge appointment of the private respondent shall be declared to have come to an end or deemed cancelled/set-aside.
4. Mr. Abdul Rashid Abbasi, Advocate, the learned counsel for the appellants in Appeal No, 279 of 2014 and Appeal No, 287 of 2015 argued that the impugned judgments of the High Court and the Service Tribunal, respectively, are against the facts and law. The direction for determination of seniority on the basis of first appointment/induction into service contradicts the very provision of law regarding the seniority of separate cadres as according to rules seniority of B.Sc. Engineering/B. Tech (Hons) degree holder Sub-Engineers has to be determined from the date of their acquiring the qualification of B.Tech (Hons)/B.Sc. Engineering. The learned counsel further maintained that seniority of the cadre of Sub-Engineers, who qualified as B.Tech (Hons) is different to that of Sub-Engineers who are qualified as B.Sc. Engineering and there is no dispute of seniority between the parties. The learned counsel submitted that the method of recruitment is laid down in the Electricity Department Service Rules, 1993. The learned counsel submitted that according to scheme of law 65% posts of Assistant Engineers (B-17) are reserved for direct recruitment, 15% posts are reserved for promotion on the basis, of seniority cum-fitness from amongst the Sub-Engineers possessing B.Sc.
Electrical Engineering/B.Tech (Hons) and 20% quota is reserved for promotion on the basis of seniority-cum-fitness from amongst the Sub-Engineers for the requisite discipline with 7 year service as Sub-Engineers. He submitted that the appellants possessed the requisite qualification for promotion against 15% quota. Initially, they were promoted on current-charge basis and subsequently on officiating basis through the above referred notifications. Ile argued that the final seniority list was issued on 11th September, 2009, it was not challenged by anybody, therefore, it has attained finality. The final seniority list cannot be challenged later on, after the period of limitation. The Service Tribunal has passed the order in vacuum. He requested for setting aside the judgment of the Service Tribunal and acceptance of appeal.
While arguing on Appeal No, 279/2014, the learned counsel maintained that the impugned judgment of the High Court is erroneous one as the learned Judge in the High Court has dismissed the Writ petition without considering the rules on the subject.
The learned counsel referred to the cases reported as Sanaullah vs. Irshad Ahmed Awan & others (Civil Review No, 17 of 2011, decided on 1.7.2015) and Muhammad Ilyas Khan and 5 others vs. Sardar Muhammad Hafeez Khan and 4 others (2001 SCR 179).
5. Raja Amjad All Khan, Advocate, the learned counsel for the appellants in Appeal No, 286 of 2015, argued that his client, Shoukat Aziz Mir possessed the qualification of B.Sc. Electrical Engineering at the time of induction and he was inducted into service in the year 2001 and since 2009, he was eligible for promotion as Assistant Engineer (B17).
6. Kh. Attaullah Chak, Advocate, the learned counsel for the appellants in Appeal No, 279 of 2014, adopted the arguments advanced by Mr. Abdul Rashid Abbasi, the counsel for the appellants.
7. Raja Akhlaq Hussain Kiyani, Additional Advocate General, while arguing the case stated that the basic question involved in all the three appeals is that whether for maintaining the seniority list the date of acquiring qualification shall be considered or the date of recruitment, for promotion as Assistant Engineer from amongst the Sub-Engineers. He referred to Section 7 of the Azad Jammu & Kashmir Civil Servants Act, 1976 .and stated that the seniority can be determined from time to time. He supported the impugned judgment of the Service Tribunal and stated that there is no separate seniority list in accordance with cadre or qualification rather single seniority list is provided in the rules.
8. While controverting the arguments of the learned counsel for the appellants, Mr. Farooq Hussain Kashmiri, Advocate the learned counsel for the respondents vehemently argued that the promotion can be made on the basis of seniority-cum-fitness and not on the basis of seniority alone. He argued that the proposition involved in Sanaullah case (supra) referred to by the counsel for the appellants, is entirely different to the case in hand. He maintained that the private respondents, herein, were inducted earlier to the appellants into the service and when the seniority was determined education-wise, they were found qualified. The learned counsel while arguing Appeal No, 287/2015, has stated that the impugned judgment of the High Court as well as the Service Tribunal, whereby direction for determination of seniority list has been given, is correct. He referred to the cases reported as Fida Hussain vs. The Secretary Kashmir Affairs and Northern Affairs Division, Islamabad and another [PLD 1995 SC 701], Raja Javid Ahmed Khan vs. Pervaiz Akhtar Abbasi and 5 others [1998 SCR 278], Muhammad Ilyas Khan and 6 others vs. Sardar Muhammad Hafeez Khan and 3 others 12000 SCR 6301.
In the case reported as Fida Hussain vs. The Secretary Kashmir Affairs and Northern Affairs Division, Islamabad and another [PLD 1995 SC 701], the matter relates to diploma-holders, in Engineering i,e, B.Tech. and B.Tech-(hons.) The appeal filed by the petitioner, Fida Hussain was dismissed by the Service Tribunal. The appeal in the Supreme Court also failed. The Supreme Court reviewed its judgment on the ground that important aspect of the case which escaped the notice of the Court in its judgment under review was that "some other civil servants/Employees placed in the same position as petitioner had been considered for promotion to B-17 Grade and in fact were promoted whereas petitioner was denied such benefit which amounted to violation of Art. 25 of the Constitution." The judgment was reviewed and the appeal allowed.
In the case reported as Raja Javaid Ahmed Khan vs. Pervaiz Akhtar Abbasi and 5 others [1998 SCR 278], this Court observed that mere fact that the respondent passed B.Ed. Examination prior to the appellant would not entitle him to seniority against the respondent.
In the case reported as Muhammad Ilyas Khan and 6 others vs. Sardar Muhammad Hafeez Khan and 3 others [2000 SCR 6301, this Court observed that the seniority would be reckoned from the date of regular appointment in a grade.
9. We have heard the learned counsel for the parties as well as the learned Additional Advocate-General and perused the record with utmost care.
10. The case of the appellants and the private respondents is governed under the Azad Jammu & Kashmir Electricity Department Service Rules, 1993; as amended vide notification dated 24th September, 2007. For proper appreciation it is necessary to reproduce the same which read as under:-- S #Name of DepartmentFunctional UnitsName of post with gradeAppointing AuthorityMinimum Qualification for appointment byMethod of RecruitmentMethod of RecruitmentTranning for promotion Initial recruitment or transferPromotion Min Max 12 3 4 5 6 7 8 9 10 11 4Electricity Electricity Assistant Engineer B-17Minister InchargeDegree in Engineering in theAs per Col.8(a) 65 % by initial recruitment as per Col.618 35 - requisite discipline from a recongnized university or an equal leaf qualification and registration as a professional engineer with Pakistan Engineering Council.(b) 15% by promotion on the basis of seniority- cum-fitness from amongst Sub- Engineer possessing B.Sc.
Electrical engineerin/B.Tech (Hons)
Proivded that those with B.Sc.
Electrical Engineering shall have three years experience and while those who process B.tech
(Hons) will have five year experience as such if not is available for promotions than by initial recruitment.
20% by promotion on basis of senority cum- fitness from amongst Sub- Engineer of the requisite discipline who hold the minimum qualification as prescribed for initial recruitment as Sub-Engineer and have completed 07 years service as Sub-Engineer in the Deptt.An have been placed in B- 16 after passing the Sub- Engineers Professional Examination.
The scheme of rules transpires that 65% posts of Assistant Engineers (B-17) have been reserved for initial recruitment, 15% posts have been reserved for promotion on the basis of seniority-cum-fitness amongst the Sub-Engineers possessing B.Sc. Electrical Engineering/BTech. (Hons). A proviso has been attached to this category that those who are B.Sc. Electrical Engineering shall have three years' experience for promotion while those who posses B.Tech. (Hons) will have five years' experience in case of promotion. In third category 20% seats are reserved for promotion on the basis of seniority-cum-fitness from amongst the Sub- Engineers of the requisite discipline who hold minimum qualification as prescribed for initial recruitment as Sub-Engineer and have completed 7 years' service as Sub-Engineers in the department and are placed in B-16 after passing the Sub-Engineering professional examination.
11.The basic difference between categories 'b' and 'c' provided for promotion against the posts of Assistant Engineers (B-17) is that for promotion against the posts reserved for 15% quota, it is. necessary that the person should have served as Sub-Engineer having qualification of B.Sc. Electrical Engineering/B.Tech. (Hons) for a specified period, whereas, for promotion against 20% quota reserved in category 'c' there are two conditions that a Sub-Engineer must have served in the department for the last 7 years and possessed the initial qualification necessary for appointment as Sub-Engineer. There is no ambiguity in the rules that for appointment as Assistant Engineer (B17), three types of quota have been reserved for three types of categories. The seniority of categories 'b' and 'c' is not common. The matter came under consideration of this Court in the case titled SanaUllah vs. Irshad Ahmed Awan and others (Civil Review Petition No, 17 of 2011, decided on 25.06.2015), whereby it was observed as under:-- "7.Now we advert to the next argument raised by the counsel for the respondent regarding the application of the Electricity Department Service Rules, 1993 which deals with the method of recruitment against the post of Assistant Engineer, B-17. As per column 6 of the said rules, the mode for initial recruitment against 65% quota reserved for the purpose has been provided. The case of both the constant civil servants is not covered by the academic requirement envisaged in the said column, therefore, the same need not be discussed. Column 8 provides the method of recruitment, clause 'a' and 'b' of which postulate that 15% posts shall be filled in by promotion on the basis of seniority-cum-fitness amongst the Sub-Engineering possessing the qualification of B.Sc. Electrical Engineering/B.Tech. (Hons). In this column, a proviso has also been attached to the clauses 'a' and 'b', which is as under:-- Provided that those with B.Sc. Electrical Engineering shall have three yeari Experience and while those who posses B.Tech (Hons) will have five years experience as such if none is available for promotion then by initial recruitment.'
The above reproduced proviso of the Rules clearly conveys that a person who claims promotion under clause, 'b' of the Electricity Department Service Rules, 1993, he has to fulfill the requirement of the qualification of B.Sc. Electrical Engineering with 3 years' experience or possesses B.Tech (Hons) with 5 years' experience. In case, the persons of both the categories are not available for promotion, then the post shall be filled in by initial recruitment.
8. At first, we would like to discuss clause 13" of the Electricity Department Service Rules, 1993. To examine whether the case of the contestant parties comes within the purview of clause 'b' of the Electricity Department Service Rules, 1993 or not. Prom the perusal of record, it reveals that the petitioner was appointed on temporary basis as Sub-Engineer, B-11 on 11.10.2008 and he was confirmed on the recommendations of the Selection Committee vide order dated 14.11.2008. The petitioner was appointed as Assistant Engineer, B-17 on current charge basis against 15% departmental quota vide notification dated 4.9.2009. Under clause 'b' of the Electricity Department Service Rules, 1993, the petitioner who possessed B.Sc. Electrical Engineering Degree can be eligible for promotion as Assistant Engineer, B-17 after 3 years' experience but the petitioner fell short of length of 3 years' service as prescribed by the promotion under the departmental Rules.
9. The respondent got degree of Bachelor of Technology (Hons) in Electrical Technology from Preston University in January, 2009 and he was appointed as Assistant Engineer on current charge basis on 13.5.2010. Under clause 'b' of the rules, the respondent, who possesses B.Tech. (Hons) Degree can be eligible for 'promotion as Assistant Engineer, B-17 after 5 years' experience.
According to the letter dated 11.3.2009 issued by the Pakistan Engineering Council, the degree of B.Tech (Hons) cannot be treated at par with the person who is holding the degree of B.Sc. Engineering and on the basis of above degree, no promotion/appointment to the post involving professional engineering work can be made, therefore, the respondent does not fulfill the required qualification.
10. Another clause, i,e,, clause 'c' of the Electricity Department Service Rules, 1993 provides that 20% seats shall be filled in by promotion while adopting the criteria of seniority-cum-fitness on the strength of the qualification prescribed for initial recruitment as Sub-Engineers provided they completed seven years service as Sub-Engineer in the department and have been placed in grade, B-16 after passing Sub-Engineers professional examination.
11. After discussing the above said three eventualities, we are of the consistent view that the respondent can claim the promotion if he fulfills the qualification mentioned in clauses `b' & 'c' of the Electricity Department Service Rules, 1993. The argument of the learned counsel for the respondent that two terms, i,e,, experience and services have been used in the Electricity Department Service Rules, 1993. No doubt, both the terms used in the Electricity Service Rules, 1993 are quite different. In clause 'b' of the proviso, the term, "shall have three years' experience" has been used in case of Electrical Engineering, Whereas, the term "will have five years' experience" has been used in case of B.Tech (Hons). Whereas, in clause 'c' of the Rules, the term '7 years' services" has been used in case of degree in Engineering in the requisite discipline from a recognized University or an equivalent qualification and registration as a professional engineering with Pakistan Engineering Council. The respondent does not fulfill the qualification mentioned in clauses "b" & "c" of the Electricity Department Service Rules, 1993. Therefore, we are of the view that the respondent cannot claim promotion on the basis of B.Tech (Hons) Degree to the post involving professional engineering work. This Court while delivering the impugned judgment has not attended this crucial point in its true perspective."
Thus, it is concluded that the seniority of two categories 'b' and 'c' provided for promotion against the post of Assistant Engineers (B-17) cannot be common. The seniority of category 'b' is common with a distinction drawn in the proviso that the persons who are serving as Sub-Engineers and have three years'; experience while the Sub-Engineers who have the qualification of B.Tech.
(Hons) shall have five years' experience and Sub-Engineers falling in category 'c' of 20% quota, they shall be working as Sub- Engineer for 7 years and are placed in B-16.
12. The Service Tribunal has observed that the department has to firstly determine the seniority of the relevant cadres, i,e, diploma holder, Sub-Engineers/B-Tech, (Hons), employees of the department according to the departmental rules on the basis of their first appointment/induction into service. The scheme of Rulm1993 is unambiguous. Different qualification for promotion for two different quotas is provided, so seniority of two cadres in category 'b' and 'c' cannot be common.
13.Now the question remains that whether the authority has power to revisit the seniority list or not. The seniority is determined in the light of the provisions contained in Section 7 of the Azad Jammu & Kashmir Civil Servants Act, 1976. Section 7 is reproduced as under: '"7. (1) Seniority:--Seniority on initial appointment to a service, cadre, grade or post shall be determined in the prescribed manner.
(2) 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.
Provided that Civil Servants who are selected for promotion to the higher grade in one batch shall, on their promotion to the higher grade, retain their inter se seniority as in the lower grade.
(3) For proper administration of service cadre or grade, the appointing authority shall form time to time cause a seniority list of the members of such service, cadre or grade to be prepared.
(4) Subject to the provisions of sub-section (3) the seniority of a Civil Servant in relation to other Civil Servants belonging to the same service, cadre or grade, whether serving the same department or office, shall be determined in such manner as may be prescribed.
(5).............................
A bare reading of sub-section (3) of Section 7 shows that the authority has been conferred with the powers to cause the seniority list from, time to time of the member of such service, cadre or grade. The rule provides that the seniority takes affect from the date of regular appointment to a post in that grade. A proviso has been attached to sub-section (2) of Section 7 that the civil servants who are selected for promotion to the higher grade in one batch shall, on their promotion to the higher grades retain their inter-se-seniority. It was observed in the case reported as Syed Subtain Husain Kazmi and 2 others vs. Syed Mumtaz Hussain Kazmi and 5 others [2013 SCR 889] in para 10 of the report as under: "The basic provision dealing with the seniority is Section 7 of the Act. According to this statutory provision, the seniority on initial appointment to service, cadre, grade or post shall be determined in the prescribed manner. Whereas, the seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to the post in that grade. The term "regular appointment" used in this statutory provision is of vital importance. The sub-section (2) of Section 2 of the Act speaks that "for the purpose of this an appointment whether by promotion or otherwise shall be deemed to have been made on regular basis if it is made in the prescribed manner.' According to clause (i) sub-section (1) of Section 2 of the Act, "prescribed" means prescribed by rules.
Thus, this statutory provision clearly convey that the appointment whether by promotion or otherwise made in prescribed manner shall be deemed on regular basis. Under the provision of Section 3 of the Act, the terms and conditions of Civil Servant shall be provided in this Act, and rules made there under. When the scope of legal terms 'regular appointment' hereinabove, is judged in the light of the statutory provision of the Act in juxtaposition with the Rules, .1977, it become clear that it refers only to the regular permanent appointment either; by initial recruitment, transfer or promotion excluding the appointments on the acting charge, current charge and promotion on officiating basis. Regarding these appointments the statute itself clarifies that these are no regular appointment. Rule 10-A of the Rules, 1977 deals with the appointment on the acting charge basis. Under sub-rule
(4) it has been clarified that such appointment shall not be deemed to have been made on regular basis for any purpose nor shall confer any right for regular appointment. Sub-rule (2) of this rule deals with the appointment on current charge basis which clearly speaks that the appointment shall come to an end on appointment of a person on regular basis or on expiry of six months whichever is earlier. Same like Rule 13 of the Rules, 1977 deals with the promotion on officiating basis. 'Sub-rule (3) of this rule speaks that the officiating shall not confer any right of promotion on regular basis and shall be liable to be terminated as soon as the person becomes available for promotion on regular basis. Thus, the cumulative examination of the statutory provision dealing with the subject, it becomes clear that 'regular appointment' against a post or grade used, in Section 7 of the Civil Servants Act, refers only to the regular appointment made through initial recruitment by transfer or by promotion or not otherwise."
In the case titled Sana-Ullah vs. Irshad Ahmed Awan and others (Civil Review Petition No, 17 of 2011, decided on 25.06.2015), it was observed that for promotion a civil servant shall possess necessary qualification at the date of promotion.
Thus we conclude, that on the creation of vacancy of Assistant Engineer the promotion shall be made while considering the respective dates of obtaining of qualification along with the prescribed experience after such qualification.
14. While passing acting/current charge promotion orders all the qualified persons should, have been considered and if the posts are available then the promotion order for regular induction should have been made. Rule 10-B of the Azad Jammu & Kashmir Civil Servants (Appointments and Conditions of Service) Rules, 1977, postulates that the appointment on current-charge basis can be made when a post is likely to remain vacant for a period of less than six months and appointing authority doesn't consider it Expedient to make an appointment on ad-hoc basis, it may appoint a civil servant, who is eligible for promotion under rules, to that post on current-charge basis. Rule 13 of the Azad Jammu & Kashmir (Appointments and Conditions of Service)
Rules, 1977 provides that where a post falls vacant as a result of (ex-cadre) transfer, deputation, leave or appointment on acting charge/officiating basis of the regular incumbent or is reserved under the rules to be filled by transfer or is permanently available as vacant and is reserved for regular promotion on the recommendations of the appropriate selection board/committee, the appointing authority may make appointment by promotion against such post on officiating basis. The matter of appointment on current charge and promotion on officiating basis came under consideration of this Court in the case reported as Muhammad Yaqoob Awan vs. Secretary Electricity Department and 3 others [2014 SCR 11, whereby in paras 7 and 8 of the report it was observed as under: "17. The appointment on current-charge basis under Rule 10B of the Azad Jammu & Kashmir Civil Servants (Appointment & Conditions of Service) Rules, 1977, is made when a post is likely to remain vacant for a period of less than six months and appointing authority doesn't consider it expedient to make an appointment on ad-hoc basis, it may appoint a civil servant, who is eligible for promotion under rules, to that post on current-charge basis.
8. The appointment by promotion on officiating basis is made under Rule 13 of the Azad Jammu & Kashmir Civil Servants (Appointment & Constitutions of Service) Rules, 1977, where a post falls vacant as a result of deputation, leave or the appointment on acting-charge basis of the regular incumbent or is reserved under the rules to be filled in by transfer, the appointing authority may make appointment by promotion against such post on officiating basis. The rule lays down that no person shall be promoted on officiating basis unless he possesses the qualification and experience prescribed for the post and his promotion as such is approved by the Chairman of the appropriate selection authority and that an officiating promotion shall not confer any right of promotion on regular basis but shall be, liable to be transmitted as soon as a person becomes available for promotion on regular basis."
Thus, an officiating promotion order can be made when the post falls vacant as a result of deputation, leave or on current charge basis of the regular incumbent. A qualified civil servant having the relevant experience and qualification prescribed for the post may be appointed/promoted but such promotion shall not confer any right for regular promotion.
It appears from the record that while issuing the promotion orders of the appellants on current charge basis and officiating basis all the eligible persons were not considered. Only the appellants were considered. The judgment of the Service Tribunal is perfectly legal.
15. As we have observed that under Section 7 of the Azad Jammu & Kashmir Civil Servants Act, 1976, the competent authority is empowered to issue the seniority list from time to time, therefore, the High Court has committed no illegality while dismissing the writ petition.
The result of the above discussion is that finding no force in these appeals, these are hereby dismissed with no order as to costs.