GHULAM MUSTAFA MUGHAL, J.-- The captioned appeal by leave of the Court is directed against the consolidated judgment passed by the Service Tribunal on 25.11.2015 in Service Appeals Nos,976 of 2011, 441 of 2012, 477 of 2012 and 533 of 2012.
2. The precise facts forming background of the instant appeal are that respondents Nos, 1 to 3, herein, were appointed on current-charge basis as Naib Tehsildar on 20.4.2007 and confirmed on 23.2.2009. Respondent No,4, herein, was promoted on current-charge-basis on 23.4.2007 and confirmed as Naib Tehsildar on 24.4.2009. Respondent No,5, herein, was appointed on officiating basis as Naib Tehsildar on 15.12.2005. He was confirmed as such on 27.3.2009. Respondent No,6, herein, was appointed on current-charge-basis as Naib Tehsildar vide order dated 22.9.2003 and confirmed as such on 19.3.2007. It is stated that appellant No,1, herein, was promoted as Naib Tehsildar on officiating basis on 19.2.2004 and confirmed on the recommendation of the respective selection committee on 1.6.2006. Appellant No,2, herein, was promoted as Naib Tehsildar on 7.8.2006, wherein, appellant No, 3 was appointed through initial recruitment on the recommendation of the respective selection committee vide order dated 26.2.2008. Appellant No,4, herein, was promoted as Naib Tehsildar on officiating basis vide order dated 9.2.2004 and confirmed as such on the recommendation of the respective selection committee on 15.5.2005.
Appellant No,5, herein, was promoted on officiating basis as Naib Tehsildar on 9.3.2004 and confirmed as such on 9.8.2008. The seniority list of Naib Tehsildar for the year 2010 was issued by the competent authority on 1.8.2011. Subsequently, another seniority list was issued in the year 2013 vide order dated 20.3.2013. It was claimed that the name of respondent No,4, herein, was placed at serial No, 62 of the seniority list pertaining to the year 2010 and at serial No, 48 in the seniority list pertaining to the year 2013. The proper place was assigned to the respondents according to law in the seniority list issued in the year 2013. The respondents, herein, challenged the seniority list dated 1.8.2011 before the Service Tribunal on 29.10.2011, 11.4.2012, 20.4.2012 and 30.4.2012, respectively. The appeals were contested by the appellants, herein, by filing written statements. The learned Service Tribunal consolidated all the appeals and after necessary proceedings vide impugned judgment dated 25.11.2015, accepted all the appeals and directed the competent authority to give the effect to the seniority of the respondents, herein, from the currentcharge/officiating promotion.
3. Sheikh Masood Iqbal, the learned Advocate appearing for the appellants, vehemently argued that the judgment of the learned Service Tribunal is against law and the rules and is also contrary to the dictum of this Court laid down in the case reported as Muhammad Arshad Khan Tehsildar District Bagh and others vs. Azad Government of the State of J&K through its Chief Secretary Muzaffarabad and others [2000 PLC (C.S.) 247]. He also relied upon an unreported judgment recorded by this Court titled Syed Zulfiqar Ali Shah and 2 others v. Qaiser Aurangzeb and 5 others, in Civil Appeal No,73 of 2007, decided on 4.9.2008. The learned Advocate argued that the seniority can be given from the date of regular promotion and cannot be anti-dated by affecting seniority rights of the other civil servants from the date of current or officiating appointments which are temporary in nature and are usually made for stop-gap arrangement. The learned Advocate submitted that the learned Service Tribunal was not competent to issue any direction to the competent authority because in pursuance of the various pronouncements of this Court, the proper place of seniority was given to the respondents, herein from the order of their regular promotion. The learned Advocate in support his submission placed reliance on the cases reported as Muhammad Arshad Khan Tehsildar District Bagh and others v. Azad Govt. of the State of J&K through its Chief Secretary Muzaffarabad and others 2000 PLC (C.S.) 247 and on an unreported judgment of this Court titled Syed Zulfiqar Ali Shah and 2 others v. Qaiser Aurangzeb and 5 others, decided on 4.9.2008, in Civil Appeal No,73 of 2007, decided on 4.9.2008).
4. Raja Khalid Mehmood Khan, the learned Advocate, appearing for respondents Nos,1 to 4 and 6, argued that the appointment/promotion of the private respondents have been given retrospective effect by the competent authority from the date of their current/officiating appointments, hence, they were entitled to be placed in the seniority list at the serial numbers claimed by them in the respective appeals. The learned Advocate argued that as the orders whereby the retrospective effect has been given to the private respondents were not challenged by anybody at appropriate time, therefore, all the appeals have rightly been accepted by the Service Tribunal and the appeal against the impugned judgment of the Service Tribunal, has no substance and liable to be dismissed. The learned Advocate further argued that in fact the seniority which was earlier assigned to the appellants were given in pursuance of the judgment of the Service Tribunal which cannot be taken or recalled.
5. Mr. Mehmood Hussain Ch., the learned Additional Advocate-General, appearing for the official respondents, contended that the impugned seniority list has been issued by the competent authority in light of the dictum of the Supreme Court laid down in an unreported judgment of this Court titled Syed Zulfiqar Ali Shah and 2 others v. Qaiser Aurangzeb and 5 others, in Civil Appeal No,73 of 2007, decided on 4.9.2008, therefore, the Service Tribunal was not competent to go beyond the judgment of the apex Court while directing the official respondents to fix the seniority of the private respondents, herein, from the date of their current-charge appointments. The learned Additional Advocate-General further argued that the current-charge appointment/ officiating appointment is temporary in nature which does not confer any right upon an incumbent so far as the seniority is concerned. The learned Additional Advocate-General adopted the arguments of the learned Advocate for the appellants and prayed for acceptance of the appeal and vacation of the impugned judgment of the Service Tribunal.
6. We have heard the learned Advocates representing the parties and have gone through the record of the case. In view of the settled principle of law and the earlier pronouncements of this Court, the controversy agitated in the captioned appeal hardly requires any deliberation. Suffice it to observe that the mode of determination of seniority of the civil servants in case of initial recruitment and promotion is provided in section 7(2) of the Azad Jammu and Kashmir Civil Servants Act, 1976, which reads as under:-- "7. Seniority.---(1) Seniority on initial appointment to a service, cadre 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:"
A perusal of subsection (2) of section 7 of the Azad Jammu and Kashmir Civil Servants Act, 1976, would show that the 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.
7. The appellants before the Service .Tribunal took a categorical stand that they were appointed firstly on current-charge-basis and subsequently, their appointments were declared on officiating basis, however, they were promoted on regular basis much after the respondents. It appears that their confirmation has been made from the date of current-charge appointments which in view of the above reproduced provisions of law are illegal and erroneous. The provisions of section 7 of the Azad Jammu and Kashmir Civil Servants Act, 1976, as well as the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, has been considered by this Court in various cases including in Civil Appeal No,73 of 2007, titled Syed Zulfiqar Ali Shah and 2 others v.
Qaiser Aurangzeb and 5 others, decided on 4.9.2008 referred to and relied upon by the learned Advocate for the appellants.
In Ejaz Ahmed Khan's case reported as 2005 SCR 242, it was observed that an order of promotion can be given retrospective effect in favour of a person who was occupying the vacancy in the department. It was further observed that if a vacancy was created by artificial means in that case the retrospective effect cannot be given to his promotion against such a vacancy but the monitory benefit can be claimed by such civil servant for that purpose. A perusal of the record reveals that the respondents, herein, were not appointed against the clear vacancies on current-charge-basis, they were appointed against the posts of direct recruitment. Their appointments were not correct and were made mischievously, hence, the seniority cannot be given to them retrospectively.
In Asad Mahmood Malik's case reported as 2009 SCR 129, the matter was again considered. It was observed that the promotion on the officiating basis does not confer any right for regular promotion. At page 137 of the report, this Court in paragraph 10 of the judgment observed as under:---
10. Without recording the detailed facts of the precedent case suffice it to say that in that case some officers of the Revenue Department were promoted on officiating and acting-charge basis against the posts of direct quota and the selectees whereof had been sent to undergo training at Civil Services Academy. To this extent the facts of precedent case were identical to the controversial point involved in the instant appeal. We, therefore hold that the respondents, according to the record, have been promoted against the temporary vacancies of direct recruits, who cannot be considered senior to the appellant.
Reliance in this case was placed on the judgment of this Court rendered in a case reported as Muhammad Arshad Khan Tehsildar District Bagh and others v. Azad Government of the State of J&K through its Chief Secretary Muzaffarabad and others [2000 PLC (C.S.) 247]. In paragraph 11 of the report, it was concluded as under:--- "11. The next question pertains to the condition of officiating appointments. It is evident from sub- rule (1) of Rule 13 of Rules that officiating appointment can only be made if the post falls vacant as a result of deputation, leave or appointment on acting charge basis of a regular incumbent or is reserved under the rules to be filled by transfer. In the present case it is nobody's case that the post against which 17 persons were promoted on officiating basis fell vacant due to any of the aforesaid eventualities. Rather the said posts appear to have been reserved for direct recruitment. If the posts fell vacant due to retirement of previous incumbents or the same were newly created, the same could not be filled in on officiating basis under Rule 13(1), similarly, under sub-rule (3) of Rule 13, the officiating promotion would not confer any right of promotion on regular basis and same is liable to be terminated as soon as a person becomes available for promotion on regular basis.
Therefore, it, cannot be said that officiating promotion of some of the respondents was envisaged under rules or same could be made basis for giving ante-dated promotion to the said incumbents."
In the case reported as Syed Subtain Hussain Kazmi's case reported as [2013 SCR 889] this Court in paragraph 17 of the judgment again reiterated the earlier view as under:--- "17. Now we advert to the most complex legal proposition raised in these cases i,e, the effect of retrospective, promotion and notional promotion of the civil servant. As it has been concluded that for determination of seniority, the foremost condition is regular appointment which means the appointment made in the prescribed mode. The Civil Servant Act speaks that the word prescribed means the prescribed by rules. As the proforma, anti-dated or notional promotions are not prescribed by the rules, therefore, such appointments cannot be termed as regular appointments.
It is almost now settled that the proforma or anti-dated promotion orders are made by the Government while exercising the inherent powers derived under the 'provisions of section 22 of the Act. The statutory provisions of section 22 of the Act speaks as under:--- '22. Saving;- Nothing in this Act or in any rules shall be construed to limit or abridge the power of the Government to deal with the case of any civil servant in such manner as may appear to it to be just and equitable; Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule.'
Under this statutory provision, the Government is not vested with the unlimited or unguided powers rather the powers vested are qualified with just and equitable purposes. Therefore, it is clear that the anti-dated or proforma promotion while exercising the powers under section 22 of the Act, can only be made if necessary for just and equitable purposes. These powers cannot be exercised under the discretion in an arbitrary manner."
8. Under section 42-B of the Azad Jammu and Kashmir Interim Constitution Act, 1974, any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciate a principle of law, be binding on all the Courts in the Azad Jammu and Kashmir. The learned Service Tribunal, therefore, cannot violate and bypass the pronouncements mentioned hereinabove especially so when the impugned seniority list issued in accordance with law laid down by this Court.
9. In light of the above discussion as well as the case law referred to above, we have reached the conclusion that the direction given by the learned Service Tribunal for giving effect to the seniority of the respondents retrospectively from the date of current-charge/officiating appointment was illegal and violative of the relevant law, rules and the judgments of this Court referred to hereinabove. The seniority under challenge was determined/fixed by the competent authority in pursuance of the judgment of this Court which was notified by the circular dated 23.9.2011, hence, the same was perfectly legal and in accordance with the statutory provisions of the law.
In view of the above, the appeal is accepted and the impugned judgment passed by the learned Service Tribunal on 25.11.2015, is re-called. The seniority list issued by the competent authority vide order dated 1.8.2011 is hereby restored. No order as to costs.