MUHAMMAD SIDDIQUE FAROOQI (CHAIRMAN).--This appeal arises out of Government order No. Admn./SO-III/4202-14, dated 28-3-1982, whereby respondent Sheikh Attaullah was promoted to NPS-18. Through this appeal, the appellant has challenged the impugned order on the ground that respondent No. 2 was not qualified for the post and was illegally promoted merely on the basis of seniority. According to the learned counsel for the appellant, at the time of selection and promotion of respondent No. 2, the Azad Jammu and Kashmir Agriculture Service (Gazetted) Rules, 1976 were in force. Another notification issued by the Government vide No.FD/8073-8122/78 dated 26-8-1978 was also in existence, whereby certain posts were renamed and the pay scales of the renamed posts were raised from NPS-16 to NPS-17. Apart from this, the qualification was also prescribed for the posts in the said notification and it was provided that promotion from NPS-17 to the higher post will not be made unless an individual had acquired the qualification of M.Sc.
Agriculture. Thus, according to the appellant, the promotion of the respondent No.2 was void being violative of rules. It was further avered that appellant was senior most amongst other qualified officer in the cadre, from which the promotions were to be made to the higher posts. Therefore, on the basis of qualification, the appellant was entitled to the promotion, which was illegally denied to him. The appellant also contended that respondent No.2 had never qualified any departmental course thus, his promotion even in the grades below namely; in NPS-17 or to the post below was also illegal. According to the appellant, the proceedings of the Selection Board were also illegal because the Board did not consider the fact that any qualification was prescribed for promotion to various posts in the NPS-18 and it had been wrongly presumed by the Board that no qualification was prescribed for such posts in the Agriculture Department. The learned counsel for the appellant also argued that 50 to 75$ of the posts of Deputy Director and equivalent were to be filled in by promotion and 25 to 50% were to be filled in by direct recruitment. It was also stated that Apple Co- ordinator was equivalent to Horticulturist but according to the appellant, both the aforesaid factors were not brought to light, either before the Selection Board or the Government by the Department.
2. The learned counsel for the respondent pleaded that the Service Tribunal has no jurisdiction to determine the matter in controversy for the reason that appellant as well as the respondent were considered by the Selection Board and findings of the Board cannot be challenged before the Tribunal. It was also pleaded that no qualification was prescribed for promotion to NPS-18 in the case of a person, who was holding the post of NPS-17. The learned counsel for the respondent also pleaded that respondent No.2 was senior to the appellant and deserved promotion on the basis of meritorious services.
3. After hearing the learned counsel for the parties and perusal of the record, we feel that the following points need determination:-
(i) Whether any qualification was prescribed for promotion to NPS-18?
(ii) Whether any qualification was prescribed for promotion from the post of District Agriculture Officer to the post of Deputy Director?
(i.e) Whether respondent No. 2 was qualified for promotion to the post of Deputy Director, to which he was promoted?
(iv) Whether any quota was fixed for departmental 'promotion to the posts, in NPS-18, without any regard for the qualification?
(v) Whether the proceedings of the Selection Board are illegal, being violative of the rules, regarding qualification and quota?
(vi) In case the promotion of respondent No.2 is set aside, whether the appellant can be promoted to NPS-18?
4. We requisitioned certain documents, regarding, the qualification prescribed for the officers in Agriculture Department and also perused the service record of the parties. It appears that Sheikh Attaullah was serving in the department as Officiating Agriculture Officer when he was approved for promotion to the post of Tehsil Agriculture Officer, in the pay scale of Rs.275-340/30-500 by the Azad Jammu and Kashmir Public Service Commission. The proceedings of the Commission were conveyed to the Secretary Agriculture Azad Jammu and Kashmir vide No.98-B/61-66/201-3 dated 17-5-1966. Last para of the aforesaid communication from the Commission is as under:- "Serial No.1-3 had in fact already appeared before the Commission in connection with the post of Agriculture Assistant. The fourth candidate viz. Sh. Attaullah is already working as officiating Tehsil Agriculture Officer against the vacancy in question. After interviewing the candidates, the Commission approved the appointment of Sh. Attaullah as Tehsil Agriculture Officer in Azad Kashmir Agriculture Department in the Scale of Rs.275-340/ 30-500. The prescribed educational qualification viz. a degree in Agriculture was dispensed with in his case in consideration of this practical experience and good performance."
The reproduced portion of the above referred letter shows that respondent No.2, Sheikh Attaullah was not qualified for the post of Tehsil Agriculture Officer, nevertheless, he was approved for the post in relaxation of the qualification viz, a degree in Agriculture. The Commission dispensed with the qualification as indicated in the letter dated 17-5-1966. It is strange how the Commission assumed the jurisdiction for dispensing with the above qualification. The Commission had to consider the persons for selection, who were eligible for appointment or promotion. The dispensation of qualification was unduly undertaken by the Commission upon itself and the Government of Azad Jammu and Kashmir, which was headed by a nominated person promptly obeyed the command of the Commission as the Commission included some persons from Ministry of Kashmir Affairs. This pay scale of the post for which respondent was approved was later on equated with NPS-16, and it remained under revision from time to time.
5. The respondent No.2 was holding the post of Tehsil Agriculture Officer in NPS-16, when three posts of Tehsil Agriculture Officers were renamed as Assistant Horticulture Officer vide Government Order No. Agriculture/1625-28/74 dated 22-4-1974, and Horticulture section was established in the Agriculture Department. M/s. Muhammad Din Kosar, Sheikh Attaullah and Nazir Ahmad Mukhialvi Tehsil Agriculture Officers were appointed as Agriculture Officer by transfer to these three posts.
The renamed posts were upgraded and placed in NPS-17 vide Government Order No.Admin/3574- 78 dated 23-11-1974. This order was given retrospective effect from 22-4-1974. No proceedings of Selection Board appear to have been undertaken nor any Government order appears on the file to show that officer holding the posts were personally allowed NPS-17. Perhaps the benefit of NPS-17 was given to all the incumbents holding the renamed posts. The Section Officer Agriculture's note para 36, sub para 3, is misconceived, wherein it has been indicted that, since respondent No.2 was already holding a "gazetted post" of Tehsil Agriculture Officer, the approval of Public Service Commission was not' required for promotion to NPS-17. This appears to be a wrong statement of legal position by Section Officer (Agriculture). In 1974 Azad Jammu and Kashmir, Rules of Business 1971 were in force. Rule 17(1) from the aforesaid rules is reproduced below:- "17.(1) The Public Service Commission shall be consulted:-
(i) On all matters relating to methods of recruitment to a Civil Service or a civil post;
(ii) On the principles to be followed in making appointments to the Civil Services and post and in making promotions and transfers from one service to another; (i.e) in all cases of appointments.
(a) on promotion to a gazetted post from a non-gazetted post;
(b) on promotion to Class II gazetted post from a lower grade;
(c) on promotion to junior gazetted Class I from a lower grade;
(d) on promotion to senior gazetted Class I from Class II or a lower grade;
(e) on original appointment to any gazetted rank; and
(f) on original appointment to other posts the initial pay of which is Rs.250 or above."
Provided that for temporary appointment for a period not exceeding six months, consultation with the Public Service Commission will not be necessary.
(iv) on all cases laying down principles for determining the relative seniority of persons in Civil Services and posts;
(v) on all cases of relative seniority of persons holding gazetted posts or other posts the initial pay of which is Rs.250 or above."
Clause 'C' of the Rule quoted above shows that approval of Public Service Commission was required for promotion from grade 16 to 17. Thus, the contention of Malak Bashir Ahmad, Section Officer Agriculture in his note dated 17-1-1981 is against the rules. It could have been perhaps an argument that the approval of Public Service Commission was not required when the promotion in grade takes place on account of the upgradation of the post. This aspect also needs examination, but we do not give any finding on it for the reason that it was neither urged nor debated upon by the learned counsel for the parties.
6. It has been argued that respondent No.2 was holding the post of District Agriculture Officer Mirpur and was not qualified, even for that post under the rules enforced in 1976. A Government notification was also issued in this respect on 26-8-1978, which was enforced from 1-5-1977. It was contended that in view of the notification dated 26-8-1978, the appellant could not have been promoted to a pay scale above NPS-17, because acquiring of the M.Sc. Qualification was a condition precedent for promotion to the higher post in the aforesaid notification.
7. The Government order does not show that any qualification was prescribed for all such posts.
Sheikh Attaullah, respondent was holding the post of Assistant Horticulture Officer, in NPS-17, prior to the passing of impugned order, in the circumstances stated hereinbefore. For the correct appreciation of the points in issue, it will be proper to reproduce the relevant notification, whereby qualification was prescribed for different posts, held by the respondent No.2. The Government enforced the consolidated pay revision rules, vide Government order No.270-64 printed in the extra ordinary gazette No.25 dated 27-6-1964. The relevant portion pertaining to Agriculture Assistant and Field Assistant is reproduced below:- "(7)
3-AGRICULTURE DEPARTMENT.
Thereafter, these rules were amended regarding qualification. Following is the amendment made by the Government and published in the Government Gazette, dated 1-10-1964:- "2. AGRICULTURE DEPARTMENT AgriculturalAdd:-- AssistantOnly agriculture Graduates to be recruited in future."
8. The pay scales for gazetted officers were enforced vide Government notification No. 100- 155/FD/65, dated 20-1-1965. The relevant entry appears as under:- Name of the postClassification. Consolidated scale.
Tehsil Agriculture Officer. Unclassified. 275-15-320/20-500".
9. The Azad Jammu and Kashmir Agriculture Service (Gazetted) Rules seem to have been enforced by the Government, vide No. S&GAD-11/9379-94/74, dated 27-7-1974, published in Extra Ordinary Gazette No. 24, dated 12-8-1974. The respondent No. 2 was holding the post of Assistant Horticulture Officer on the basis of transfer in NPS-16 at the time of enforcement of these rules. The relevant entry relating to Assistant Horticulture Officer is as under:- "APPENDIX 'A'
Designation of the-postExisting scalesConsolidated Scales.
Agriculture Assistant.150-10- 250/15- 295.(i) 250-15-340/20-500. For Agri. Graduates or qualified Field Assistants promotirs with five years service in the post.
(ii) 170-10-220/15-370 for others.
Field Assistants/ Farm Overseers/ Agriculturists.90-5- 140-/7-175110-5-150/6-210. For Matri--culates with at least one year training at the Field Assistant Training Institute or non- Matriculates with five years service in the post."
Sub-rule 2(d) also dealing with the method of recruitment reads as under:- "2 . .. . . (d) Fifteen per cent vacancies in the posts of Assistant Plant Protection Officers and Assistant Horticulture Officers shall be filled by initial recruitment and the remaining vacancies in such posts shall be filled by promotion;"
10. The Government order upgrading the post of Assistant Horticulture Officer and placing in NPS-17 was issued on 23-11-1974, after the enforcement of these rules. The rules enforced in 1974 were superseded by the Azad Jammu and Kashmir Agriculture Service (Gazetted) Rules, 1976, vide No. S&GAD/18158-62, dated 7-8-1976, which were published in Gazette No. 59, dated 25-8-1976. The respondent No. 2 was holding the post of Assistant Horticulture Officer. The qualification prescribed for Assistant Horticulture Officer finds place at item No. 3, of the Appendix 'B' to the rules, which is reproduced below: - "APPENDIX 'B'
"APPENDIX 'A'
S. No.Nomenclature of the post.Minimum qualifications prescribed for appoint--ment by initial recruit-- ment.Method of recruitment 12 3 4 11.Assistant Horticulture Officer/Fruit Development Officer.(a) B.Sc. (Agri) 2 Division from a recognized Uni--versity with at least 3 years experience in Horticulture; or (b)B.Sc. Hons (Agri); or (c)B.Sc.(Agri)Ist Division; or (d)M.Sc.(Agri) with Horticulture; or (e)B.Sc.(Agri) with Diploma or Merit Certificate or Associateship in Horticulture from recognized Foreign Institute awarded after atleast one year's academic study with two years experience in Horticulture.(i)15%by initial re--cruitment and
(ii) 85% by promotion from amongthe members of the Azad Jammu and Kashmir Agriculture Service Class-II provided that they are B.Sc. (Agri) 2nd Division and possess atleast three years ex-- perience in the line."
This will take effect from 1-5-1977 Your obedient Servant, (Sd.)
(Muhammad Ashraf Khan)
Section Officer (Finance)"
On 20-11-1979, the Government sanctioned special pay of Rs.150 vide notification No. FD/56- N.P.S./16982-17042/79. The relevant order is reproduced hereunder:- "F D/56-N.P.S./16982-17042/79 AZAD GOVERNMENT OF THE STATE OF J & K FINANCE DEPARTMENT 'MUZAFFARABAD Dated, the 20th November, 1979.
To The Secretary, Agriculture and Animal Husbandry Department, Azad Government of the State of Jammu and Kashmir, Muzaffarabad.
Subject: GRANT OF SPECIAL PAY.
Sir, I am directed to state that as a result of the up-gradation of Agriculture Officers and Veterinary Officers from National Pay Scale 16 to National Pay Scale 17, the President, Azad Jammu and Kashmir is pleased to sanction a special pay of Rs.150 per month for the following National Pay Scale 17 Supervisory posts in the Agriculture and Animal Husbandry Departments, w.e.f. 15th February, 1978.
A. Agriculture Department.
(1) District Agriculture Officer.
(2) Fruit Development Officer.
(3) assistant Horticulture Officer.
(4) Assistant Antomologist.nd
(5) Assistant Agronomist.
B. Animal Husbandry Department.
(1) Assistant Director Animal Husbandry.
(2) Poultry Development Officer.
(3) Research Officer, Diseases Investigation Centre.
(2) The resultant expenditure on account of payment of arrears will be borne by the departments concerned within their sanctioned budget.
Your obedient servant, (Sd.)
(M. A. Shah)
Section Officer, Finance."
AZAD GOVERNMENT OF THE STATE OF J & K FINANCE DEPARTMENT No. FD.2881-2940/80, M'abad, the 13th April, 1980.
To The Secretary, Agriculture and Animal Husbandry Department, Azad Government of the State of Jammu and Kashmir, Muzaffarabad.
Subject:-GRANT OF SPECIAL PAY.
Sir, Your obedient servant, (Sd.)
(M.A. Shah)
Section Officer (Finance)"
13. The respondent No. 2 was promoted in N.P.S.18 and appointed as Deputy Director. The qualification for Deputy Director prescribed vide rules, enforced in 1976 is as under:- S. No.Nomenclature of the post.Minimum qualifications prescribed for appoint--ment by initial recruit--ment.Method of recruitment 1 2 3 4
3. Assistant Horticulture Officers/Fruit Development Officers(a) B.Sc. Agri.
(2nd Div) froma recognized Univer-- sity with at least 3 years experience in Horticulture; or(i) 50% by initial re-- cruitment; and
(ii) 50% by promotion among members of the Azad Kashmir Agri. Deptt. (Ext. Wing in NPS-16) posts of Agr. Asstts with at least 3 years experience as such; provided that they
(b) B.Sc. Hons.
In Agri; or
(c) B.Sc. Agri.
(1st Div) or;
(d) M.Sc. Agri.
With Horticulture; as a special subject; or
(e) B.Sc.Agri.
With Diploma or Merit Certificate or Asso ciateship in Horticulture from a recognized Foreign Institute awarded after atleast one year's academic study with twoyears experience in Horticulture.are B.Sc. (2nd Div) in Agri. /B.Sc. Honours in Agri. With Horticulture as a principal subject from a recognized University; Provided further that the Agri.Asstts.
Possessing degree in B.Sc. Agri.With Botany as a major subject beforeHorticulture was introduced as a Principal subject, shall also be eligible for promotion."
11. The qualification for the post of District Agriculture Officer is given at S. No. 1(a) of Appendix 'B' to the aforesaid rules, which is reproduced below:- 1 2 3 4
1. (a)District(a) B.Sc.
Agriculture(i) 50% by initial re-- Agriculture(2nd Division) fromcruitment; Officer(Ex-a recognized Uni-
(ii) 50% by promotion tra Assistant versity with three from among members Director ofyears experience ofof the Azad Kashmir Agriculture)Extension or PlantAgriculture Deptt.
SeniorI In-protection or Farm structorsManagement or(Extension Wing) in Agriculturalboth, orNPS-16 holding post Training In-ofAgriculture stiauteand(b) B.Sc. Honours inAssistant posses-- Instructors Agri.; orsing at least three Agricultural(c)
B.Sc.Agricultureyears experience; Training In-(Ist Div.); or(a) in extension or stitute.(d) M.Sc. Agri; orPlant- protection or Farm-management (e)B.Sc. Agri.Withor any of them diploma or meritcombined in the case certificate or Asso-of District Agri. ciateship in Agri.Officers (Extra from a recognizedAsstts.)
Director of foreigninstituteAgriculture/ Senior awarded afteratInstructors. leastoneyear(b) in extension and Academic study withpublicity in the case two years ex-of AssistantPubli-- perience in the line.City Officers, and Planning Officers, Planning a Pro--gressing Officers."
12. After the enforcement of the rules, the post of Agriculture Assistant was renamed as Agriculture Officer and upgraded vide Government Order No. FD.5222-5271/78, dated 18-6- 1978. The relevant entry is read as under: DepartmentName of the PostExist: N.P.S. Rev. N.P.S. Remarks AgricultureAgricultural Assistant Renamed as Agriculture Officer.16 17(i) in future the minimum qualification for initial recruitment to these posts will be M.Sc. (Agri); or
(ii) The existing incum--bents of the post hold--ing the qualification of B.Sc. (Agri) or those appointed to the post by promotion will be allowed NPS-17 as personal to them. They will however, be eligible for further promotion only after acquiring the qualification of M.Sc. (Agri)".
Again some posts were renamed and placed in NPS- 17 vide Government order No. FD/8073-8122/78 dated 26-8-1978. The relevant portion of this order is reproduced below:- Name of the Post Post renamed.Exist: N.P.S. Rev. N.P.S. Remarks Research Assistant.Assistant Research Officer16 17(i) In future the minimum qualification for initial recruitment to these posts be M.Sc. (Agri.)
Horticul ture Assistant.Agriculture Officer(Hort).16 17(ii) The existing incum--bents of the post holding qualification of B.Sc (Agri) or those appointed to the post by promotion will be allowed N.P.S.-17 as personal to them. They will, however, be eligilble for future promotion only after acquiring the qualification of M.Sc. (Agri.)
Plant Promotion AssistantAgri Officer (P.
Port)16 17 Junior Instructor Instructor 16 17 Farm Superintendent /ManagerFarm Superinten Dent/Manager16 17 Agri Assistant (Fertilizer)Agri Officer (Fert)16 17
14. After the passing of impugned order, another notification was issued by the Finance Department, vide No. FD/NP-0001/82, dated 9-8-1982, which is also reproduced below:- 'No. FD-----/82 AZAD GOVERNMENT OF THE STATE OF J & K FINANCE DEPARTMENT MUZAFFARABAD Dated 9-8-1982 To The Secretary Agriculture/ Animal Husbandry, Azad Government of the State of Jammu and Kashmir, Muzaffarabad.
Subject:-SCHEME OF REVISED NATIONAL PAY SCALES.
Sir, I am directed to refer Government Order No. FD/5222-5271/78, dated 28-6-1978 on the subject noted above and to convey sanction of the President, Azad Jammu and Kashmir to the following:- 12 3 4 4.Deputy Director(a)i Master's degree (2nd class) in the case of Universities which classify degrees) or B.Sc.
(Honours) in Agriculture from a recognized University; and
(ii) Six years service in Agriculture; or (b)i Bachelors' (2nd Div.) in Agriculture from a recognized University; and
(ii) Eight years service in Agriculture.25% by initial recruit ment; and 75% by promotion from among members of the Azad Kashmir Agriculture Service(N.P.S.-17) with eightyears experience in such."
(2) The qualification etc. For the post of Agriculture Officer and equivalent posts in the Agriculture Department shall be as under:-
(i) Assistant Agriculture Officers holding the qualification of B.Sc. Hons. (Agri.) will be eligible after 3 years service as such for promotion to these posts.
For this purpose, the number of posts in N.P.S.-17 shall be determined under the service Rules to be notified latter.
(ii) The incumbents holding the post on 1-5-1977 and possessing qualification of B.Sc. (Agri.), or those appointed to the post by promotion on or before 1-5-1977 will be allowed N.P.S. -17 as personal to them. They will, however, be eligible for further promotion only after putting in a minimum service of 10 years.
(i.e) In future minimum qualification for initial recruitment to these posts will be B.Sc. (Hons.)
Agriculture acquired after six years prescribed post Matriculation studies or M.Sc. (Agri.).
(3) This order shall take effect from the date of its issue.
Your obedient servant, (Sd. )
(Abdul Rashid Baig)
Section Officer (Finance)
No. FD/NP-0001/82, dated 9-8-1982."
15. The respondent No. 2 was F. A . And was not qualified for promotion as Agriculture Assistant in view of the notifications, dated 25-6-1964 and 1-10-1964, but no qualification seems to have been prescribed for the post of Tehsil Agriculture Officer, in the notification, dated 22-1-1965, reproduced in paragraph 8. He was approved by the Public Service Commission for the post of Tehsil Agriculture Officer. Since the Government approved the recommendations of Public Service Commission, regarding dispensation of qualification as well as the appointment, it will be deemed that the Government also relaxed the qualification in his matter, even if it was prescribed through any other order. Thus after relaxation, such appointment suffers no legal defect.
16. On 22-4-1974, he was appointed as Assistant Horticulture Officer by the transfer on renaming of the post of Tehsil Agriculture Officer. No qualification was prescribed for the post of Assistant Horticulture Officer in Government order issued for converting the post, therefore, his appointment as Assistant Horticulture Officer by transfer was also valid. This post was in N.P.S.-16. On 23-11-1974, the post was upgraded to N.P.S.-17 but the order was made effect from 22-4-1974. The retrospective effect given from 22-4-1974 to the order, dated 23-11-1974 saved the appellant from the mischief of the rules, enforced on 27-7-1974 because on the date of enforcement of these rules, he was by a fiction of law holding the post of Assistant Horticulture Officer in N.P.S.-17.
17. The respondent No. 2 was enjoying N.P.S.-17 since 22-7-1974, when the selection for some posts in N.P.S.-18 was to be made. He was at that time holding the post of District Agriculture Officer by transfer. The Secretary Agriculture in his working paper stated that no qualification was prescribed for the post in N.P.S.-18. It has been argued by the counsel for the appellant that qualification for the post of Agriculture Officer, Agriculture Officer (Hot) District Agriculture Officer etc., in N.P.S.-17 had been already prescribed through rules, enforced in 1976 and the notifications, dated 18-6-1978, 26- 8-1978 and 13-4-1980 (reproduced in paragraphs 12 and 14 hereinbefore). According to the counsel for the appellant, it had been provided that further promotion from N.P.S.-17 to N.P.S.-18 would not be made unless the holder of the post in NPS-17 had acquired M.Sc. Qualification. From amongst the Officers in NPS-17, for the Officers holding supervisory posts, a special pay of Rs.150 was sanctioned on 20-11-1979. In the first instance, no qualification was prescribed for the benefit of special pay but through the notification, dated 13-4-1980, the restriction of qualification was also placed. It was made imperative that only such incumbents of the supervisory posts will be entitled to the special pay, who hold the qualification for the non-supervisory post placed in N.P.S.-17 vide notification No. FD-5222-74/78, dated 18-6-1978 and No. FD/8073-8122/78, dated 26-8-1978. The appellant's counsel contended that in view of notification, dated 13-4-1980, the qualification of M.Sc. Was thus prescribed for enjoying the benefit of special pay for all the posts, which included the post of District Agriculture Officer and other posts which were not otherwise included in the notification, dated 18-6-1978 and 26-8-1978. The restriction was again subject to the exception that it was not applicable to existing incumbents.
18. In the Azad Jammu & Kashmir Agriculture Service (Gazetted) Rules 1976, (extract reproduced in paragraph 13) regarding the post of Deputy Director, the qualification prescribed for 25% of posts to be filled in by initial recruitment is M.Sc. With 6 years service in Agriculture Department or B.Sc. With 8 years service, while 75% of the posts are to be filled in by promotion from officers in N.P.S.-17 with 8 years experience. It has been argued that through the notification, later on issued, qualification for the lower posts had been prescribed therefore, it should be held that promotion of only such persons could be made, who were duly qualified for the lower post and not amongst the persons, whom N . P . S .-17 was allowed as personal.
19. A letter of Government of Punjab was relied upon in defence, to which a reference seems to have been made by the Secretary, Agriculture also. The letter of Government of Punjab is being reproduced hereinafter.
"No.FD.PC-14-1/78-Pt:I GOVERNMENT OF THE PUNJAB FINANCE DEPARTMENT Dated 'Lahore', the 28th July, 1980.
To The Deputy Secretary (Services)
Services and General Administration Department, Azad Government of the State of Jammu & Kashmir, Muzaffarabad.
Subject:-PROMOTION OF OFFICERS IN THE AGRICULTURE DEPARTMENT.
Sir, I am directed to your letter No. S&GAD/11129-30/80,dated 22-6-1980, on the subject noted above and to say that this Government have not laid down any condition for existing incumbents holding post of EADA etc. For their further promotion to Grade-18.
Your obedient servant, Sd/-- (IJAZ AHMAD BHATTI)
Under Secretary (PC)"
The letter reproduced above is no guide in the matter, because it relates to a question of promotion from the post of EADA (Extra Assistant Director Agriculture). The respondent No. 2 has never been EADA. Apart from this, the notification had been prescribed for the post of EADA in the rules, in Azad Kashmir, which the respondent No. 2 never possessed and this post is to be filled in by initial recruitment. From these factors, it naturally follows that person holding the post of EADA could be promoted to any higher post without any additional qualification because he must possess the qualification, which was prescribed for the post of EADA. The qualification for that post was not less than 'B.Sc. In any case as is borne out from entry at S.No. 1-C in the Appendix 'B' of Agriculture Service Rules, enforced in 1976. We are of the view that it cannot render any assistance without looking into our own rules and notifications on the subject and in the case of any divergence, the rules and notifications enforced in Azad Jammu & Kashmir must prevail.
20. The Secretary Agriculture had referred to an opinion of Law Department of Azad Jammu & Kashmir Government, wherein it was indicated that the qualification prescribed through the notifications of fiscal nature do not have the force of amending the departmental service rules, prevailing at the time of the impugned order of promotion. According to the version of Secretary Law, an officer who was already holding the post in N.P.S.-17 was not effected by the conditions laid down for the promotion to N.P.S.-18, when the notifications relate to certain other posts, which were sought to be placed in N.P.S.-17 on 18-6-1978 or 26-8-1978. In the opinion of the Secretary Law, the qualification, prescribed on the two aforesaid dates was not applicable to the post of Assistant Horticulture Officer nor to the District Agriculture Officer, which were in N.P.S.-17 prior to the issue of these two notifications. According to the views of the Law department, no qualification stood prescribed for promotion to the post of Deputy Director in the rules, enforced in 1976 because no indication of qualification appears against 75% posts sought to be filled in through promotion.
21. We examined the notifications, the rules as well as the opinion of the Law Department and also considered the arguments of the learned counsel for the parties. Through the notification, dated 18-6-1978 and 26-8-1978 some posts were upgraded from N.P.S.-16 and placed in N.P.S.-17. The posts of District Agriculture Officers are not mentioned in either of these notifications, where the restriction of qualification was placed for promotion to N.P.S.-18, therefore, the qualification prescribed through these notifications will not apply to such officers, who are to be promoted to a higher grade, from the post of Assistant Horticulture Officer or District Agriculture Officer, unless such qualification is prescribed through the rules, in voyage at the time of passing of impugned order of promotion. The perusal of the rules shows that promotion to the post of Deputy Director was to be made either by initial recruitment or by promotion as is borne out from the extract of rule, reproduced by us in paragraph 13, hereinbefore. Qualification for initial recruitment has been mentioned in column 3, but it has been also provided in column 4, that 75% vacancies shall b filled in from amongst members of Azad Jammu & Kashmir Agriculture Service N.P.S.-17, with 8 years experience as such. The Advocate for the appellant argued that qualification prescribed for the lower post will also be applicable, even in the case of promotion. As already observed by us, the notification do not apply to the post of District Agriculture Officer, therefore, we have to look into the rules, for this purpose. In appendix 'B' of Agriculture Service Gazetted Rules, 1976, the post of District Agriculture Officer has been mentioned again S.No. 1 (a) which has been already reproduced in paragraph 11, of this judgment. In column 3, qualification has been prescribed for initial recruitment and in column 4, it is provided that 50% of posts shall be filled in by initial recruitment, while 50% by promotion from amongst the members of Azad Jammu & Kashmir Agriculture Service (Extension Wing) in N.P.S.-16 holding the post of Agriculture Assistant. The perusal of the entries in column 4, shows that no qualification was prescribed for appointment by promotion to the post of District Agriculture Officer. Only the experience was mentioned. There is no assertion that appellant did not have the required experience. Thus, it will be deemed that the appellant, who was holding the post of District Agriculture Officer, was qualified to hold that post. This aspect that M.Sc. Qualification was prescribed for certain other posts, in N.P.S.-1 and whether it applied to the post of District Agriculture Officer, has been also examined. In our view, the restriction of qualification in case of promotion to N.P.S.-18 will apply to the incumbents of only those posts, which were mentioned in these notifications, dated 18-6-187 and 26-8-1978 and the scope of those notifications cannot be extended to such posts. We agree with the opinion of the Law Department that the notifications were of fiscal nature, whereby some financial benefits in the form of upgradation from N.P.S.-16 to N.P.S.-17 were given to certain incumbents of posts. Naturally, the restriction placed in the remarks column against such posts, whereby some benefit was given to some person through such notifications is not applicable to those, who were not given any benefit by those notifications, nor such posts were covered by the notifications, which were not in any way mentioned therein. The Departmental Service Rules must prevail even in the case of conflict between the notifications and the rules although there is no conflict in the case before us. In our view the holders of the posts mentioned in notifications, dated 18-6-1978 and 26-7-1978 could not be promoted to N.P.S. Without acquiring M.Sc. Qualification but there is no such restriction for promotion of a person from the post of District Agriculture Officer to the post of Deputy Director or to any post for which, qualification is not specifically prescribed.
22. It will not be out of place to mention that in these rules, even in the case of promotion to certain post, the qualification was prescribed. For instance in the case of Assistant Horticulture Officer, mentioned a S.No. 3 of Appendix 'B' which has been reproduced in paragraph 1 of this judgment, qualification of B.Sc. Second Division in Agriculture/ B.Sc. Hons. Etc. Was prescribed as shown in column 4, while no such qualification appears in the case of Deputy Director or District Agriculture Officer, in column 4, where the recruitment is to be mad through promotion. The overall study of the rules shows that la makers i.e., Government provided the qualification even for promotion cases for certain posts, while it did not provide so for the posts of District Agriculture Officer and Deputy Director. Most probably, the Government was of the opinion that the executive post like Deputy Director and District Agriculture Officer could be filled in on the basis of experience even without any required standard of minimum qualification. We have to follow the intention of the rule making authority. Thus, we accordingly hold that the respondent No. 2 who was holding the post of District Agriculture Officer was not disqualified from being promoted to the post of Deputy Director in view of the rules in force at the time of promotion. We have also observed that experience of 8 years was required as per entry in column 4, in N.P.S.-17 for promotion to the post of Deputy Director.
Sheikh Attaullah respondent No. 2 was in N . P . S . -17 since 22-4-1974 and completed 8 years service on 21-4-1982. The impugned order was passed on 28-3-1982. His experience falls short of about 24 days, which is negligible. In the application of rules, regarding experience, the exact mathematical calculation is not to be made. It can be said that the respondent No. 2 had approximately 8 years experience. Thus, even the requirement of experience does not disentitle him to the promotion. Notification, dated 13-4-1980 deals with the special pay. It does not effect the promotion.
23. The learned counsel for the appellant had also argued that the appellant was better qualified and that he had not been considered. We have examined his record. We have no doubt that appellant is highly qualified person but the contents of the working paper show that his name was also forwarded by the Secretary Agriculture to the Selection Board and comparative merit, experience etc. Were before the Selection Board, therefore, it cannot be said that the Selection Board had shut its eyes to any portion of the Working paper submitted by the department. Since the Selection Board made the selection of only the senior persons from which it will follow that the senior persons were found fit on the basis of merit-cum-suitability. The case has not been processed by the Selection Board, is any haste. The matter remained under consideration for long time and even the promotion orders were made almost 1-- years after the selection. The Government as well as the Selection Board seem to have applied their mind to all aspects of the case, including qualification. It is a general practice that if the senior persons in the relevant line are fit for promotion on the basis of merit-cum-suitability, they get preference over the juniors.
Whether the appellant on the basis of qualification should have been given preference over the respondent and declared suitable was a question within the domain of the Selection Authority and not liable to be interfered with by this Tribunal. Apart from this, appellant does seem to have acquired the experience of 8 years in NPS-17 at the time of promotion, as prescribed by the rules.
The impugned order thus, suffers no legal defect, which would give us any jurisdiction to interfere.
24. In view of our findings on the points, discussed hereinbefore, the other points need no determination. The appeal is dismissed, with no order as to the costs.
A.A./46-S/Sr.A.
Designation of the post.Existing scale.Pay: Revised NPSRemarks Assistant Agriculture Officer625-40-825/50- 1325(No. 16)The Minimum qualification for initial recruitment to this post will be B.Sc. (Hons.) Agriculture