CH. MUHAMMAD IBRAHIM ZIA, J.--- The titled appeal by leave of the Court has arisen out of the divergent judgments of the Service Tribunal dated 20.04.2014, whereby the learned Chairman dismissed the appeal of the appellant, herein, whereas the learned Member accepted the same.
2. In brief, the facts of the case are that the appellant was promoted on the basis of officiating promotion as Naib Tehsildar on 24.09.1999 and was confirmed as such latter on vide order dated 11.08.2004 with the retrospective effect of the seniority. He was promoted against the post reserved for departmental promotion quota which became vacant on 26.09.1998 due to the confirmation of Abdul Aziz Zargar as Tehsildar. Some of the contesting respondents challenged the order before respondent No,1 through appeal which was dismissed on 14.07.2007. The official respondents invited objections for issuance of fresh seniority list of Naib Tehsildar in the year 2010. After having objections, the Board of Revenue issued the seniority list through order dated 01.08.2011, wherein, the name of the appellant was placed at serial No,
33. The appellant filed an appeal before the Service Tribunal against the said order. Through the impugned judgment dated 20.04.2014 the learned Chairman Service Tribunal dismissed the appeal of the appellant, whereas, the Member accepted the same with the order for entry of name of the appellant at serial No,13 instead of 33. Feeling aggrieved, the appellant has now challenged the judgment of the Chairman Service Tribunal.
3. Syed Shfaqat Hussain Gardezi, Advocate, the learned counsel for the appellant argued the case at some length. He discussed the detailed facts of the case. The points raised by him are that the impugned judgment of the learned Chairman of Service Tribunal is against law, whereas, the findings recorded by the learned Member are quite consistent with the statutory provisions of law.
According to the record, the appellant was initially appointed as Naib Tehsildar on officiating basis.
Subsequently, on the report of the Selection Committee his officiating appointment was confirmed with effect from 24.09.1999 vide order dated 11.08.2004. This Order was not challenged by any civil servant, hence, the same attained finality. Previously, in the final seniority list issued in 2007 and tentative seniority list issued in 2010, the authority correctly mentioned his date of appointment as 24.09.1999 but in the final seniority list issued in the year 2010, the date of appointment has been incorrectly mentioned as 21.07.2004. Consequently, with reference to incorrect date of appointment, his name has been entered at serial No,33, whereas, according to his correct date of appointment i,e, 24.09.1999, he falls at serial No,13 in the seniority list. The learned Chairman neither considered the propositions involved in this case nor appreciated the record. The statutory provisions of law have also been totally ignored. The judgment of the learned Chairman is telegraphic one consisting of few lines, hence, not sustainable. He further argued that the appointing authority of the Naib Tehsildar was the Commissioner, thus, even the seniority list issued by the Board of Revenue is without lawful authority. Same like, the Chairman has also wrongly mentioned that the seniority list subsequently issued in the year 2013 has not been challenged whereas the fact of the matter is that the same has been challenged. He placed reliance on the case reported as Zaib-un-Nisa v. Tahira Khanum and others [2015 SCR 860]. He further argued that according to the amended Rules the authority is senior Member Board of Revenue who has been arrayed as party. It is not necessary to array the Board of Revenue as party as the same is not authority.
4. Conversely, Kh. Muhammad Nasim, Abdul Waheed Durani and Raja Aftab Ahmed, Advocates, the learned counsel for the contesting respondents strongly opposed the appeal. They submitted that the appeal is not maintainable due to non-impleadment of the Board of Revenue which is necessary party as according to section 6 of Board of Revenue Act, 1993 the order of Member Board of Revenue shall be deemed to be order of Board of Revenue, thus, on this sole ground this appeal is not maintainable. They further submitted that the appellant was appointed on officiating basis on 03.05.2001, therefore, his claim that he has been confirmed with effect from 24.09.1999 is against law. The officiating appointment is only for 6 months under rules and right for permanent promotion cannot be claimed. The judgment of the Chairman is quite legal one, whereas, the judgment of the Member Service Tribunal is not sustainable being against law and facts. So far as the issuance of seniority list by the Board of Revenue is concerned, previously the appointing authority was Commissioner of the Division but as the seniority list was to be prepared at State level, thus, only Board of Revenue could issue consolidated seniority list which had rightly been issued. The objection of the appellant has no substance, therefore, this appeal having no force is liable to be dismissed. They referred to the cases reported as Raja Muhammad Ashraf Khan Kiayani v. Azad Govt. and others [1998 PLC (C.S.) 110], Syed Subtain Hussain Kazmi v. Syed Mumtaz Hussain Kazmi and others [2013 SCR 889] and 2016 SCR 259 (judgment not found on referred page).
5. We have considered the arguments of the learned counsel for the parties and examined the record made available. First of all, we would like to resolve the point raised regarding the competency of senior Member, Board of Revenue to issue seniority list. Previously, the matter was governed by the Azad Jammu and Kashmir Revenue Department, Patwari, Qanoongo, Naib Tehsildar Service Rules, 1991. Under those Rules, the appointing authority of the Naib Tehsildar was Commissioner of the Division. However, some amendments were introduced and finally the Rules were substituted by the Azad Jammu and Kashmir Revenue Department, Patwari, Qanoongo, Naib Tehsildar and Tehsildar Service Rules, 2014. These Rules were legally enforced from the date of publication in the official gazette i,e,, 16.10.2015. In these Rules the appointing authority of the Naib Tehsildar is mentioned as senior Member Board of Revenue. The disputed seniority list was prepared in the year 2010 and finalized/circulated on 01.08.2011. At the relevant time the Commissioner was appointing authority andordinarily it was his duty to prepare the seniority list. In this regard, a query was also made from the Secretary Board of Revenue, who furnished some explanation and admitted that before enforcement of Rules, 2014 there was no other specific provision authorizing the Board of Revenue to prepare the seniority list of the Naib Tehsildars. He referred to section 4 of the Board of Revenue Act, 1993 and section 13(2) of the West Pakistan Land Revenue Act, 1967 and submitted that under these provisions the Board of Revenue is competent to prepare the seniority list of Naib Tehsildars.
6. We are unable to agree with the submission of the Secretary Board of Revenue that under the referred provisions of Land Revenue Act, 1967 or Board of Revenue Act, 1993, the power regarding the terms and conditions of civil servants of Revenue Department can be exercised by the Board of Revenue. These Acts deal with the different subjects, organization of the department, powers, duties and functions and in this context the superintending and controlling powers have been entrusted to Board of Revenue but these powers cannot be stretched to pass any order affecting the terms and conditions of civil servants of Revenue Department. According to the settled legal proposition, the matter of terms and conditions of service has to be dealt with in accordance with the Azad Jammu and Kashmir Civil Servants Act, 1976 and the rules made thereunder. The provisions of section 3 of this Act clearly speaks that the terms and conditions of service of civil servants shall be as provided in this Act and the rules made or deemed to be made under it.
However, according to the proposition involved, specially the action of preparation of consolidated seniority list at state level when the appointing authority is only competent to the extent of Division; here the provisions of Rule 48 of Rules of Business, 1985 are attracted which speak that the powers vesting in an authority or Officer in the Schedules may be exercised by the authority or officer superior to those officers' authorities. So according to the situation the practice of preparation of consolidated seniority list at state level, merely on the sole ground that the same is prepared by the senior Member Board of Revenue, cannot be declared illegal. Although, for clarification the concerned should have make necessary amendments in the Rules at the relevant time but the time has passed and now according to the rules the appointing authority is senior Member Board of Revenue, hence, such critical situation is ruled out.
7. So far as the objection of the learned counsel for the respondents regarding incompetency of the appeal on the ground of non-impleadment of Board of Revenue is concerned, it appears to be baseless. According to the provisions of the Azad Jammu and Kashmir Service Tribunal Act, 1975 the authority who has passed the order is necessary party and as mentioned hereinabove before enforcement of Rules, 2014 the authority was Commissioner and after enforcement of Rules this authority is senior Member Board of Revenue. Moreover, the impugned seniority list has been finalized by the senior member Board of Revenue as mentioned in the impugned order dated 01.08.2011 that "./4....;111,./ifir:"..ete who has been arrayed party. Thus, the objection being without any substance stands repelled.
8. The reliance of the learned counsel for the respondents on section 6 of the Board of Revenue Act, 1993 is irrelevant. As it has been observed hereinabove that the matter of terms and conditions of service of the employees of Revenue Department relates to Civil Servants Act, 1976 and rules made thereunder and the same cannot be dealt with under the provisions of Land Revenue Act or Board of Revenue Act, therefore, the argument is without any substance. The referred statutory provisions of law as well as the case law has no nexus and relevance with the case in hand, thus, this argument stands repelled.
9. Now, the moot point relating to the seniority position of the appellant, has to be resolved.
According to the admitted facts, in the final seniority list, circulated in the year 2007, the date of appointment of the appellant as Naib Tehsildar is mentioned as 24.09.1999. This seniority list has attained finality as no one challenged the same but in the disputed seniority list, the date of appointment/promotion of the appellant as Naib Tehsildar is mentioned as 21.07.2004. In the light of record, it is not the correct position. The appellant's matter came under consideration of the Selection Committee who observed that the appellant was appointed against the post of Naib Tehsildar on 24.09.1999 This vacant post was available with effect from 26.09.1998 due to confirmation of one Abdul Aziz Zargar as Tehsildar. The Selection Committee recommended for confirmation of the appellant from the date of his appointment i,e,, 24.09.1999. Vide notification dated 11.08.2004, he was confirmed with effect from 24.09.1999 as Naib Tehsildar. This order has not been challenged by anybody, thus, it has attained finality. Subsequently, change in this state of affairs in the impugned seniority list is not justified and correct. The argument of the counsel for the respondents that the seniority shall be counted from the date of regular appointment and the appellant has been regularly appointed vide notification dated 11.08.2004, appears to be baseless as according to the hereinabove stated facts the appellant was initially appointed/promoted as Naib Tehsildar on 24.09.1999. The post was available from the date of appointment as Naib Tehsildar, he was continuously holding the post. The Selection Committee also confirmed him on regular basis with effect from his date of appointment. According to the provisions of Civil Servants Act, 1976 and the rules made thereunder the seniority shall be determined from the date of continuous appointment in the grade as is mentioned in clause (b) sub-Rule (1) of Rule 8 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. This statutory provision speaks of continuous appointment. According to the stated facts there is no dispute that the appellant is not continuously appointed as Naib Tehsildar since 24.09.1999. So far as the matter of confirmation is concerned, it is also clearly mentioned in subsection (6) of section 6 of the Azad Jammu and Kashmir Civil Servants Act 1976 that: "(6) Confirmation of a Civil Servant in a service or against a post shall take effect from the date of occurrence of a permanent vacancy in such service or against such post or from the date of continuous officiating, in such service or against such post, whichever is later."
The statutory provision clearly speaks that the civil servant is entitled to be confirmed in service or against such post from the date of continuous officiating with the condition/of availability of the permanent vacancy. If any civil servant was officiating and permanent vacancy was not available, in that case his confirmation will take effect from the date of occurrence of permanent vacancy. In this case, it is proved from the record that before the date of appointment of the appellant, the permanent vacancy occurred and he was continuously officiating, thus, his confirmation from 24.09.1999 on the recommendations of Selection Committee is not contrary to law. It has already been observed that his confirmation order and same like the seniority list issued in the year 2007 have attained finality according to which the date of his appointment as Naib Tehsildar has been declared and deemed as 24.09.1999. Subsequently, the substitution of his date of appointment in the impugned seniority list as 21.07.2004 is against law and not sustainable.
10. The counsel for the appellant has rightly argued that the judgment of the Chairman is telegraphic one and lacking the proper appreciation of the factual and legal proposition, whereas, the judgment recorded by the Member appears to be consistent with the principle of law. Under the provisions of section 6 of the AJ&K Service Tribunals Act, 1975 the opinion of the Chairman shall prevail but as it has been observed that the opinion of the Chairman is not consistent with law, therefore, while accepting this appeal the judgment passed by the Chairman is set-aside. The seniority list of the Naib Tehsildars dated 01.08.2011 to the extent of the appellant is declared illegal.
Resultantly, the concerned are directed to restore the seniority position of the appellant while treating the date i,e,, 24.09.1999 as his date of promotion/appointment as Naib Tehsildar.
With these observations this appeal stands accepted. No order as to costs.