Ch. Muhammad Ibrahim Zia, C.J.--All the titled appeals by leave of the Court arise out of the common judgment of the Service Tribunal dated 31.01.2015, whereby the appeals filed by respondent No.1, herein, have been accepted.
2. The facts as depicted from the record are that the respondent, Abrar Azam, was appointed vide notification dated 05.01.2008 as Assistant Commissioner (BPS-17) on the recommendations of Public Service Commission. His appointment was made in compliance of the judgment of the High Court dated 16.11.2007.According to para (X) of the appointment notification his seniority was to be determined in accordance with the general order of merit issued by the Public Service Commission. After being appointed, he submitted the joining report on the same date. The tentative seniority list was issued on 26.02.2011 wherein he stood at serial No.4. Thereafter, vide notification bearing No.S&GAD/MGA-1(17)10(G-I) dated 13.08.2012, para (X) of the appointment notification dated 05.01.2008 was amended as "seniority of the officer will be determined from the date of joining the service", through notification dated 13.08.2012. The respondent feeling aggrieved, challenged the said order by filing Service Appeal No.1108 before the Service Tribunal.
3. Through notification bearing No. {{URDU TEXT}} 1(17)/2012 dated 13.08.2012 the seniority list of the Assistant Commissioners has been issued wherein the name of respondent, Ibrar Azam, was shown at serial No.8. Against the said notification he filed Service Appeal No.1109 before the Service Tribunal. The learned Service Tribunal consolidated both the appeals. After necessary proceedings, the learned Service Tribunal through the impugned judgment dated 31.01.2015,while accepting both the appeals set-aside the notification dated 13.08.2012 with the order that the seniority of the respondent, herein, shall be determined in accordance with the order of merit assigned by the Public Service Commission i.e. from 10.09.2005, with a direction that the name of respondent No.1, herein, shall be entered at serial No.4. This judgment of the Service Tribunal is subject of the instant appeals by leave of the Court. As all the three appeals relate to the identical legal and factual proposition arisen out from the common judgment of the Service Tribunal, therefore, it is felt advised to dispose of the same through the instant single judgment.
4. The counsel for the appellants, Raja Akhlaq Hussain Kiani, Additional Advocate-General, Mr. Farooq Hussain Kashmiri and Raja Muhammad Hanif Khan, Advocates, in all the three appeals raised the arguments unanimously. The most stressed point is that in the year 2004, vide advertisement No.2 of 2004,8 posts of Assistant Commissioner (B-17) were advertised, out of which two posts; one for District Muzaffarabad and the other for the refugees of 1989,were shown as temporary in nature. After completion of due process of law by the Public Service Commission, no one could qualify against the quota of refugees of 1989, whereupon, it was decided to re-advertise the post, whereas the candidates selected against the quota of other seven units were recommended for appointment and consequently they were appointed vide notification dated 10.9.2005. As the respondent failed to obtain the merit position against his own district i.e., Bhimber, thus, he filed a writ petition in the High Court and consequently succeeded in obtaining the order that the post of refugees of 1989 against which no candidate could qualify, shall be shifted to the quota of District Bhimber and respondent No.1 who is on top of the general merit list be appointed against the aforesaid post. In compliance of the Court order the respondent was appointed vide notification dated 5.1.2008, as Assistant Commissioner (BPS-17). The authority circulated a tentative seniority list of the Assistant Commissioners on 26.02.2011.After seeking objections and hearing the concerned finial seniority list was published vide notification dated 13.08.2012. According to the process and timing of the recommendations of the Public Service Commission, respondent No.1 was not selected for appointment along with the contesting appellants, rather he was selected for appointment later on, in compliance of the judgment of the High Court dated 16.11.2007. Therefore, the appellants and respondent No.1 have not been selected for appointment in one selection.The rules on the subject i.e. the Azad Jammu & Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 (hereinafter to be referred as Rules, 1977)along with the Azad Jammu & Kashmir Management Group (Composition, Recruitment & Promotion) Rules, 1980,have to be considered as a whole. On the proposition involved in this case, the full Court judgment titled Khurshid-ul-Hassan Bazmi vs. Azad Government & others (Civil Appeal No.135 of 2009 decided on 15.01.2011), is fully applicable. The counsel for the appellants further argued that even the claim of inter se seniority by respondent No.1 is not maintainable as the appellants were promoted in grade (BPS-18) earlier to respondent No.1. Thus, the Service Tribunal has fell in error while delivering the impugned judgment which is contrary to law as well as the principle enunciated by this Court in Khurshid-ud-Hassan Bazmi's case (supra). Therefore, while accepting the appeals the impugned judgment of the Service Tribunal may kindly be set aside. Consequently, the appeals filed by respondent No.1 be dismissed.
5. Conversely, Mr. Mujahid Hussain Naqvi, Advocate, counsel for respondent No.1, forcefully defended the impugned judgment and submitted that it is admitted fact that all the contesting parties competed for the posts of Assistant Commissioners(BPS-17) advertised by the Public Service Commission in one batch. They appeared in one and the same examination. The merit list was prepared jointly. Therefore, it is not correct that respondent No.1 was selected later on, rather all the contesting parties were selected in one batch. Thus, the principle of law enunciated by this Court in the case titled Muhammad Nazir Mughal vs. Abdul Akbar Tahir and others (Civil Appeal No.82 of 2007, decided on 15.06.2011) and the apex Court of Pakistan, in a number of cases, is fully applicable in the case in hand. The Service Tribunal has rightly passed the impugned judgment, which does not call for any interference by this Court being quite in accordance with the spirit of law and justice. As regards the question of promotion in grade (BPS-18) is concerned, as at the time of promotion, neither any seniority was determined nor tentative seniority list was circulated, therefore, mere promotion in grade (BPS-18) while superseding the respondent, is no ground for depriving him of seniority position which has been determined by the authority according to the order of merit and the rules. He referred to the cases reported as Ch. Shoukat Ali & others vs. Muhammad Safdar Khan and others[1984 SCMR 1459], Ziaul Haq and others vs. Secretary, Ministry of Education Islamabad and others[1991 SCMR 1632], M. Tahir Rashid and 2 others vs. Secretary, Establishment Division, Islamabad and 82 others[1993 PLC (CS) 1005], Nadir Shah S.D.O. Minor Canal Cell, Irrigation Sub-Division, Dera Murad Jamali and 2 others vs. Secretary, Irrigation and Power Department, Balochistan, Quetta and 7 others[2003 PLC (CS) 961] and Abdul Karim vs. Maqbool Hussain & another[PLD 1978 SC (AJK) 140] and submitted that the appeals have no substance. The same are liable to be dismissed.
6. We have considered the arguments of the counsel for the parties and perused the record made available. The facts established from the record are that the Public Service Commission advertised 8 posts of Assistant Commissioners (BPS-17) on the basis of unit wise quota, through advertisement No.2 of 2004. The contesting parties competed for the said posts. After completion of due process, the Public Service Commission against the advertised posts on the basis of unit- wise quota, recommended 7 candidates for appointment against the seats of quota of their respective units, whereas against one post reserved for the refugees of 1989, no one could qualify.
Respondent No.1 competed for the post reserved for district Bhimber but being at serial No.2 in the merit positon he could not be recommended for appointment against the said post. In furtherance of the recommendations of the Public Service Commission 7 candidates were appointed as Assistant Commissioner vide notification dated 10.09.2005, whereas, subsequently, on the direction of the High Court issued on 16.11.2007, respondent No.1 was selected for appointment against the post falling in the quota of refugees of 1989. His appointment notification was issued on 05.01.2008.
Subsequently, through another order dated 13.08.2012, the authority introduced the following amendment in his appointment notification:- "Seniority of the officer will be determined from the date of joining the service"
Respondent No.1, herein, challenged the notification dated 13.08.2012, before the Service Tribunal through appeal No.1108 of 2012. Subsequently, the matter of seniority also arose among the contesting parties which was also challenged before the Service Tribunal through appeal No.1109 of 2012. The Service Tribunal disposed of both the appeals through the impugned consolidated judgment against which the present appeals have been filed.
7. The decisive point agitated on behalf of the parties is the determination of the inter-se seniority.
The learned Service Tribunal while relying upon the case titled, Muhammad Nazir Mughal vs. Abdul Akbar Tahir & others (supra), has observed that as all the candidates have been selected by the Public Service Commission in one selection, therefore, the seniority according to the rules shall be determined in accordance with the order of merit assigned by the Selection authority. Respondent No.1, claims that the Selection authority i.e. the Public Service Commission according to the general order of merit has assigned his seniority at 4th position in the merit list, thus the joining of service is no criteria for determination of the seniority. In view of the peculiar facts of this case, for determination of the seniority, rule 8 of Rules, 1977, is relevant which reads as follows:
8. Seniority: The seniority inter se of persons appointed to post in the same grade in a Functional Unit shall be determined:-
(1) (a) In the case of persons appointed by initial recruitment, in accordance with the order of merit, assigned by the selection authority; Provided that persons, selected for appointment to the grade in an earlier selection shall rank senior to the persons selected in a later selection; and
(b) in the case of persons appointed otherwise, with reference to the dates of their continuous appointment in the grade; Provided that if the date of continuous appointment in the case of two or more persons appointed to the grade is the same, the older if not junior to the younger in the next below grade, shall rank senior to the younger person.
Explanation I: If a person junior in a lower grade is promoted to a higher grade on ad hoc basis, in the public interest, even though continuing later permanently in the higher grade, it would not adversely affect the interest of his seniors in the fixation of his seniority in the higher grade.
Explanation II: If a person junior in a lower grade is promoted to higher grade by superseding his senior and subsequently the latter is also promoted, the promoted first shall rank senior to the one promoted subsequently.
Explanation III: Subject to the provisions of rule 14 of these rules, a junior appointed to a higher grade shall be deemed to have superseded his senior only if both the junior and the senior were considered for the higher grade and the junior was appointed in preference to the senior.
(2) The seniority of the persons appointed by initial recruitment to the grade vis--vis those appointed otherwise shall be determined with reference to the date of continuous appointment to the grade; Provided that if two dates are the same, the persons appointed otherwise shall rank senior to the person appointed by initial recruitment; Provided further that inter se seniority of persons belonging to same category will not be altered.
Explanation: In case a group of persons is selected for initial appointment at one time, the earliest date on which any one out of the group joined the service will be deemed to be the date of appointment of all persons in the group.Similarly in case a group of persons is appointed otherwise at one time in the same office order the earliest date on which any one out of the group joined the service will be deemed to be the date of appointment of all persons in the group. And the persons in each group will be placed with reference to the continuous date of appointment as a group in order of their inter se seniority.
(3) Notwithstanding the provisions of this rule, the seniority lists already prepared in accordance with the rules applicable immediately before the commencement of these rules shall be construed as seniority lists for the respective new grades in respect of persons already in service and amendments therein shall continue to be made in accordance with those rules to settle inter se seniority disputes among them."
The special rules dealing with the services of the contesting parties are the Azad Jammu & Kashmir Management Group (Composition, Recruitment & Promotion) Rules, 1980(hereinafter to be referred as Rules, 1980). In view of the peculiar facts of this case relevant rule 9 of the said rules reads as follows:-
9. Seniority:- (1) Separate seniority lists shall be maintained for the members of the Service appointed as Assistant Commissioners by initial recruitment and for those appointed by promotion from Extra Assistant Commissioner cadre and the seniority inter-se, the members of each of the two groups shall be determined as under:-
(a) in the case of members appointed by initial recruitment, in accordance with the order of merit assigned by the Commission, provided that persons selected in an earlier selection shall rank senior to the person selected in a latter selection;
(b) in the case of members appointed otherwise, with reference to the date of their continuous regular appointment in the Management Group; Provided that if the date of continuous appointment in respect of two or more officers is the same, the older officer, if not junior to the younger officer or officers in the next below grade, shall rank senior to the younger officer or officers.
Explanation-I: If a junior officer in a lower grade is promoted to a higher grade by superseding a senior officer and subsequently that officer is also promoted, the officer promoted first shall rank senior to the officer promoted subsequently.
Explanation-II: A junior officer appointed to a higher grade shall be deemed to have superseded a senior officer only if both the junior and the senior officers were considered for the higher grade and the junior officer was appointed in reference to the senior officer.
(2) The seniority of the members holding the post of Deputy Commissioner or equivalent shall be determined by reference to the date of their continuous appointment on the post on the basis of regular appointments: Provided that the date of appointment of two or more officers being the same, the seniority shall be determined by reference to their seniority on the post next below held by them: Provided further that seniority of two such officers on the post next below being maintained separately the officer appointed by promotion shall rank senior to the officer appointed directly.
(3) The members of service appointed on ex-cadre posts in National Pay Scale No.18 shall continue to occupy the same post in their seniority as was held by them in the post next below in the regular cadre.
(4) The seniority of members of service holding the post of Commissioner, Secretary to the Government or on equivalent post shall be determined with reference to the date of promotion to such post unless any such member was superseded within the meanings of Explanations I and II of sub-rule (1) above."
The juxtapose appreciation of rule 8 of Rules 1977 and rule 9 of Rules, 1980, is required in this case.
According to the celebrated principle of law i.e. the interpretation of Statutes, the Courts have to interpret the law in harmonious manner keeping in view the effect of each and every word of the Statute. The phraseology applied in clause (a) of sub rule (1) of rule 9 of Rules, 1980 that is "the members appointed by initial recruitment" has to be appreciated in juxtapose with clause (a) of sub rule (1) of rule 8, which speaks that the person selected for appointment to grade in earlier selection shall rank senior to a person selected later on. The words "selection for appointment" are of basic importance. According to the hereinabove stated facts in the Azad Jammu & Kashmir the vacancies are advertised and filled in on quota system.Thus, a candidate for appointment against the advertised post has not only to qualify the test and interview in general but also has to obtain merit position for the vacancy falling in the quota of his respective unit. As in this case respondent No.1 could not be selected for the post reserved for his home district for which he competed. Thus, he was not selected for appointment alongwith the seven other candidates in earlier selection.
According to the admitted facts, he was subsequently selected for appointment against the post falling in the quota of refugees of 1989 on the direction of the High Court dated 16.11.2007.Thus the selection for appointment of the other seven candidates and respondent No.1 cannot be treated as one and the same, rather the selection for appointment of the seven candidates is earlier whereas respondent No.1 shall be deemed selected for appointment later.
8. As according to the phraseology of the rules mere selection by the selection authority is not a condition but selection for appointment is a condition. As hereinabove observed that the appointments are made on quota system against the vacancies reserved for specific units and due to this, sometime a candidate may beholding higher position in general order of merit could not succeed to be selected for appointment against the vacancy according to unit wise quota and the candidate who being lower in the general merit position may succeed to be selected for appointment against the post reserved for the respective unit. Thus, as the vacancies have to be filled in on the basis of quota system, therefore, mere general order of merit is not the sole criteria but the selection for appointment amongst the candidates on merit with reference to the vacancies falling in the quota reserved for their respective units, is also a relevant factor. This factual aspect has not been properly appreciated by the Service Tribunal which resulted into drawing incorrect conclusion. The reliance placed by the Service Tribunal upon Muhammad Nazir Mughal's case (supra) appears to be improper, as on this identical proposition the latest full Court's judgment delivered in Khurshid-ul-Hassan Bazmi's case is holding the field.
9. As regards to the case law referred to by the counsel for the parties especially respondent No.1, is concerned, we have gone through the cited case law but except Khurshid-ul-Hassan Bazmi's case none else is fully applicable in the case in hand according to the facts and circumstances of the case. Moreover, in none of the cases referred to by the counsel for the parties the rules have been interpreted as we have observed hereinabove, therefore, there is no need to discuss the same.
In view of the above stated reasons, while accepting all the three appeals, the judgment of the Service Tribunal is set aside. Consequently, the appeals filed by respondent No.1 are also dismissed with no order as to costs.