Raja Saeed Akram Khan, CJ. This judgment decides the above-captioned appeal, arising out of the judgment of the Service Tribunal dated 23.07.2019.
2. The appellant, herein, filed five separate appeals before the Service Tribunal through which he challenged the orders dated 06.09.2016, 08.06.2017, 19.04.2017, 16.06.2017 and 22.12.2017. His precise grievance was that he applied for appointment against the .post of Assistant Commissioner, BPS- 17, advertised by the Public Service Commission (PSC) but PSC failed to recommend him. He filed a writ petition before the High Court which was accepted and a direction was issued to the respondents therein, to recommend and appoint him against the post falling in the quota of District Bagh. In compliance of said direction, the appellant was appointed, however, he was not given the seniority from the date when his batch fellows were appointed and in consequence of determination of said seniority some orders adversely affecting the terms and conditions of his service have been passed. The learned Service Tribunal through the impugned consolidated judgment dismissed all the appeals.
3. The contention of the learned counsel for the appellant is that five appeals were filed by the appellant but the learned Service Tribunal has only dilated upon the appeal relating to the inter se seniority without touching upon the grounds of other appeals, which makes the impugned judgment invalid. It has been further contended that the appellant was not recommended by the PSC for appointment, hence, he was constrained to file a writ petition before the High Court and got issued the order for his recommendation and appointment. Consequently, he was appointed on 09.01.2015. In the seniority list, the appellant has been shown junior to the private respondents while ignoring that under Rule 8 of the Azad Jammu and Kashmir Civil Servants (Appointment, Terms and Conditions of Service) Rules, 1977 (Rules, 1977), the seniority of the appellant is liable to be reckoned with his batch fallows in accordance with the order of merit, assigned by the selection authority. In this way, the private respondents are junior to the appellant but the learned Service Tribunal has failed to properly take into consideration this important aspect of the matter. He submitted that the proposition has already been resolved by this Court in the case reported as Azad Govt & others vs. Syeda Sabeen Naz Gillani & others [2017 SCR 950], which fully applies to the facts of the instant case.
4. Conversely, Mr. Asghar Ali Mallik, Advocate, the learned counsel for the respondents is of the view that the impugned judgment passed by the learned Service Tribunal is perfectly legal. He added that Appeal No. 97/2017 was filed against the notification dated 06.09.2016 after lapse of a period of 236 days, hence, the same was hopelessly time barred. Despite this, the learned Service Tribunal decided the case on merit and rightly dismissed the appeals. With reference to the seniority list dated 06.09.2016, he submitted that when the appellant was even not appointed, Respondents No. 7, 10 and 14 were holding grade BPS-18, hence, the claim of the appellant that he is senior to the respondents is not correct. He further added that according to Section 7 of the Azad Jammu and Kashmir Civil Servants Act, 1976 (Act, 1976) the seniority has to be reckoned from the date of regular appointment. The appellant has built up his case on the basis of Rule 8 of Rules, 1977, which is not attracted in his case for the reason that he was not selected for appointment along with his batch fellows. He further submitted that the proposition, as involved in this case, has already been dealt with by this Court in the case reported as Sohail Azam & others vs. Ibrar Azam & others [2017 SCR 718].
5. We have heard the learned, counsel for the parties and gone through the record. As per facts of the case, some posts of Assistant Commissioner, BPS-17, were advertised by the PSC vide advertisement No. 01/2007. Amongst others, the appellant also applied for appointment. At the conclusion of selection process, the appellant was not recommended for appointment.
Consequently, he filed a writ petition and got issued a direction for his appointment. Resultantly, he was appointed on 09.01.2015. The department issued the final seniority list of Assistant Commissioners, BSP-17. The appellant challenged the said seniority list before the Service Tribunal by way of Service Appeal No. 94/17 on the ground that his seniority should be detrained in accordance with Rule 8 of Rules, 1977 which speaks that the seniority shall be determined in accordance with the order of merit, assigned by the Selection Authority. During the pendency of said appeal, he filed four more appeals, which may be summarized as under:--
(i) Service Appeal No. 837 was filed against the Notification dated 08.06.2017, whereby, condition No. (x) of the appointment notification of the appellant dated 09.01.2015 (which provides that seniority will be determined in accordance with the general order of merit approved by the Public Service Commission) was deleted.
(ii) Service Appeal No. 867 was filed against the Notification dated 19.04.2017, whereby the probation period of the appellant was extended for a period of one year.
(iii) Service Appeal No. 998 was filed against the Notification dated 16.06.2017, whereby, private Respondents No. 7, 10 and 14 were promoted- as Deputy Commissioner, BPS-18.
(iv) Service Appeal No. 182 was filed against the Notification dated 22.12.2017, whereby, private Respondents No. 11 to 13 were promoted as Deputy Commissioner, BPS-18.
The learned Service Tribunal dismissed all the titled appeals through the impugned judgment.
6. In his arguments, the learned counsel for the appellant mainly focused on two points. The first point raised by him is that the learned Service Tribunal without even discussing the other appeals in the operating part of the judgment merely decided the appeal relating to the inter se seniority. In our estimation, the argument advanced by the learned counsel is not tenable for the reason that the fate of all the appeals filed before the Service Tribunal was dependent upon the determination of inter se seniority. When the learned Service Tribunal reached the conclusion that the seniority determined by the department is in accordance with law, then there was no need to dilate upon other appeals just for an academic discussion, hence, the argument of the learned counsel for the appellant is repelled.
7. The other argument of learned counsel for the appellant is relating to the mode of determination of inter se seniority. His contention is that the determination of the seniority of civil servants has been provided in Rule 8(1) of Rules, 1977, wherein, it has clearly been mentioned that in the case of persons appointed by initial recruitment their seniority shall be determined in accordance with the general order of merit assigned by the Selection Authority, hence, in the light of Rule (below) the seniority of the appellant should have been determined with his batch allows. The relevant portion of the referred rule is reproduced as under:
8. Determination of 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....."
We have no cavil with the legal position that under Rule 8(1) of Rules, 1977, in the case of persons appointed by initial recruitment, the seniority shall be determined in accordance with general order of merit assigned by the Selection Authority, however, the question before us is simply whether Rule 8(1) is applicable to the facts of the instant case. It may be stated here that the proviso to clause (a), supra, speaks that the persons selected for appointment in an earlier selection shall rank senior to the persons selected in a later selection. The phraseology employed in the Rules is "selection for appointment". According to the admitted facts, the appellant was selected for appointment subsequently on the direction of the High Court. Thus, the selection for appointment of his batch fellows and the appellant cannot be treated as one and same, rather the selection of his batch fellows is much earlier, whereas, the appellant shall be deemed selected for appointment later, hence, his seniority shall be determined from the date of regular appointment.
This proposition has already been dealt with by this Court in the case reported as Sohail Azam & others vs. Ibrar Azam & others [2017 SCR 718] in the following manner: "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-a-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 H 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."
The facts of the aforesaid judgment are identical to the instant case, hence, we are not hesitant in holding that the appellant was not selected for appointment in an earlier selection, hence, his seniority shall be reckoned from the date of his regular appointment and not in accordance with Rule 8(1) of Rules, 1977. In this way, the impugned judgment passed by the learned Service Tribunal is strictly in accordance with law, calling for no interference by us.
8. It may be pointed out that on the subject there are two conflicting judgments i.e., Sohail Azam's case (supra) and the case reported as Azad Govt. & others vs. Syeda Sabeen Naz Gillani & others [2017 SCR 950]. It is the settled principle of law that when two laws or principles of law are applicable in a matter and there is conflict in the provisions of earlier and the later law, the later in time is to be applied. By applying this principle, we would like to endorse the principle of law laid down in Sohail Azam's case (supra) which is the later view of the Court.
9. What is important to note in in this case is that the appellant is claiming the seniority for the period when he was not in service. Even, the impugned seniority list, discloses that before appointment of the appellant in BPS-17, some of the respondents were in BPS-18, hence, his claim of declaring him senior to the private respondents has no substance. In this regard, the findings recorded by the learned Service Tribunal are in accordance with law.
10. In view of the above there is no need to go into the other aspects of the case.
For the reasons stated hereinabove, finding no force, this appeal is dismissed. No order as to costs.