MUHAMMAD SIDDIQUE FAROOQI (CHAIRMAN).--This appeal has been brought, by the appellant, against order of Government, dated 1-7-1981, whereby respondent No.2 vas appointed as Tehsildar and against order, dated 30-3-1982, whereby the Review Petition of the appellant, against order, dated 1-7-1981 was rejected, by respondent No.1. The appellant claims that he was appointed as Naib-Tehsildar, vide No.1521-45/76, dated 18-3-1975 and he joined the service on 18-3-1975, whereas according to the appellant, the respondent No.2 had been also appointed, on 18-3-1975, but he joined on 20-3-1973 and the appellant was also declared as senior as per tentative seniority list of 1979, wherein the name of the appellant appears at S.No.8 and the name of the respondent No.2, appears at S. No.9. The Review Petition of the appellant had been rejected on 30-3-1982. The appellant stated that under the principles of natural justice, he should have been given an opportunity of being heard, in the appeal, filed by the respondent No.2, against Ali Akbar Shah and Raja Muhammad Yaqoob Khan but no such chance was given to the appellant. The appellant claims seniority over the respondent No.2, on the basis of date of joining. The respondent No.2, pleaded that Raja Muhammad Yaqoob and Ali Akbar Shah were promoted to the post of Tehsildar vide orders of the Government, dated 12-3-1981 and 3-1-1981. The respondent No.2 challenged these orders, before the Government and accepting the contention of the appellant, the Government declared him senior, vide order No.11024-34/81, dated 4-6-1981 and further directed the adjustment of the appellant, on the basis of the decision, dated 4-6-1981. Order, dated 1-7-1981 had been in fact passed, in consequences of order, dated 4-6-1981. Therefore, the claim of the respondent No.2 which was earlier accepted by the Government, could not be challenged, again, before the Government, through a Review Petition, against order, dated 1-7-1981. It was also stated that the appellant did not bring any proceeding, against the promotions of Ali Akbar Shah and Raja Muhammad Yaqoob, so he could not challenge the decision, after the promotion of the appellant.
2. On merits, respondent No.2, stated that tentative seniority list of the year 1979 was not correctly prepared, because the date of appointment of respondent No.2 was wrongly shown as 20-3-1980.
Actually, the date of appointment of respondent No.2 was 3-3-1975, whereas the date of appellant was also 3-3-1975. It was pleaded that date of joining is not a deciding factor, in the matter of seniority. The appointment of appellant as well as that of respondent No.2, to the post of Naib- Tehsildar had not been made, on the basis of promotion, therefore, the seniority will be governed by Rule 9 of Azad Jammu and Kashmir Tehsildari and Naib-Tehsildari Rules, 1980. The appellant was approved for the post of Naib-Tehsildar on 21-2-1973, whereas the respondent No.2 was approved, for this post, on 31-1-1973. Hence, in view of the provision of Rule 9(1)(a), the respondent No.2 is senior to the appellant. It was stated that prior to the enforcement of these rules, Punjab Tehsildari and Naib-Tehsildari Rules, 1962 were applicable, in Azad Jammu and Kashmir, on the basis of parity principle, which was accepted and enforced on 31-7-1970.
3. Khawaja Muhammad Saeed, learned Advocate during his arguments, stated that the name of appellant and the respondent No.2 respectively figure at S. No. 8 and 9 of the seniority list. The appellant also possesses the minimum qualification, for the post. Both the contesting officers have passed all the papers of departmental examination. According to the learned counsel for the appellant, at the time of promotion of respondent No.2, the appellant was not considered, which gives a cause of appeal, to the appellant.
4. We have considered the arguments of the learned counsel, for' the parties and perused the record. The appellant has himself appended with the appeal as Annexure 'A' the order No. Commissioner/1521-45/75, dated 3-3-1975. The name of the appellant figures at S. No. 15, whereas the name of the respondent No. 2, figures at S. No. 1. In this order. Both these officers were appointed as Naib-Tehsildar vide order, dated 3-3-1981, quoted above. The seniority list of year 1979 appended as Annexure 'B' with the appeal is tentative as appears from the perusal of the same.
The contents of this list, regarding the date of entry into service of the appellant and respondent No.2, as incorporated in E column No.4, are belied by the copy of the order, dated 3-3-1981, placed on record by the appellant himself. We think that the Office of the Commissioner entered the date of joining of the officer as date of appointment, which is incorrect and we have held so, in another case viz. Muhammad Ashraf-Kiani v. Azad Jammu and Kashmir Government, 1986 PLC (CS) 525.
We are also supported in our view, by 1984 PLC 440, wherein it has been held at page No.441, as under:- "5. It is an admitted position that respondent No.2 (Abdul-Ghani Qamar) had been relieved of his previous appointment vide Government High School, Makhdoomali, Multan letter No. 39/MA, dated 5th April, 1978. He reached Islamabad late on 6th April, 1978 and 7th April being a Friday, he joined his new appointment on 8th April, 1978. We are, therefore, satisfied that it was beyond his control to join at Islamabad on 5th April, 1978 and as such the earliest he could join was on 8th April, 1978 which he did. Such being the circumstances, we reject appellant's claim of seniority over respondent No.2."
The same view has been expressed in 1972 PLC 93. The claim of the appellant, for seniority, on the basis of date of joining, is, therefore, not tenable.
5. We have observed that the Government adapted the principle of party, in the matter of its Civil Servants, for the purpose of allowing them pay scales and other privileges at par, with the Civil Servants of West Pakistan /Punjab. The order passed in this respect, is reproduced below: - "NO. FD/2454-90/70 AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR FINANCE DEPARTMENT 'MUZAFFAR ABAD'
Dated 31-7-1970 All Secretaries to Government, All Heads of Departments, Azad Govt. Of the State of J&K.
Subject"-Non-Gazetted pay Revision Rules,1969.
Sir, With reference to the subject noted above, I am directed to convey the sanction of the Azad Government of the State of Jammu & Kashmir to the Revision of the Pay Scales of the posts indicated in the Schedule attached to this order.
(2) The Government is further pleased to order that:-
(i) For the just implementation of the Revision of Pay Scales, the present staff involved should be posted afresh according to their seniority and no incumbent should be able to derive benefit solely because he happened to occupy a particular post;
(ii) The nomenclature of various posts should be changed so as to conform to this in West Pakistan.
In future, the Senior Secretary should ensure that the Administrative structure of Azad Kashmir is brought in conformity with that obtaining in West Pakistan.
(i.e) No incumbent shall derive the benefit of new scales, unless he fulfils the conditions regarding the basic qualifications of the Dost and the method of recruitment. The Senior Secretary will furnish to the Audit Department the qualifications and the method of recruitment in Pakistan of the posts mentioned in the Schedules.
(3) Instructions issued vide this Department's Circular No.FD/3542-92/69, dated 27-9-1969 regarding implementation of (Non-Gazetted) Pay Revision Rules, 1969, will also be applicable.
This order will take effect from 18th March,1969.
(S.d.)
(S.G(SAhmad)
P.M.A.S. Secretary Finance.
Azad Government of the State of Jammu and Kashmir."
The perusal of the order shows that the rules governing the various services, in Punjab/West Pakistan, on the strength of the order, dated 31-7-1979, reproduced hereinbefore, were applicable in Azad Jammu Kashmir, from tie aforesaid date. In Punjab/West Pakistan, Tehsildari and Naib- Tehsilcari Service Rules, 1962 were enforced, which will apply to such cases, in Azad Jammu & Kashmir, after 31-7-1970, until these rules are amended or modified or replaced. The provision relevant to the matter of seniority, in these rules, as embodied in Rule 9, is reproduced below:- "9. Seniority._(1) The seniority inter se of the members of the Service in the various grades thereof shall be determined--
(a) In the case of members appointed by initial recruitment, in accordance with the order of merit assigned by the Board of Revenue in the case of Tehsildars and by the Commissioner of the Division in the case of Naib-Tehsildari; provided that persons selected for the service in an earlier selection shall rank senior to the peons selected in a later selection; The Azad Jammu a Kashmir Tehsildari & Naib-Tehsildari Rules, 1980 were enforced, in Azad Jammu & Kashmir on 15-9-1980. The extract from these rule, relevant to the matter of seniority, is reproduced below: - "9. Seniority.- (1) The seniority inter se of the members of various grades thereof shall be determined:-
(a) in the case of members appointed by initial recruitment in the order of merit assigned by the competent authority in the case of Tehsil1lars and by the Commissioner in the case of Naib--- Tehsildars; provided that persons selected for the service in an earlier selection shall rank senior to the persons selected in a later selection;"
6. The perusal of the notification, dated 31-7-1970 and the rules prevailing in Azad Jammu & Kashmir at present or the rules prevailing in West Pakistan/Punjab show that in the matter of seniority, to the post of Naib-Tehsildar direct recruitment, the date of selection for the post is the deciding factor. So, a person selected, for the appointment to the post of Tehsildar earlier will rank senior in the seniority list than the person selected latter. The appellant did not controvert the contention of the respondent No.2 that he was selected or approved, for the post of Naib-Tehsildar on 21-2-1973 and that the respondent No. 2, was so approved on 31-1-1973. Therefore, in view of the rules, the respondent No.2 is senior to the appellant. The contention of the appellant in this respect, being unfounded is hereby repelled. Apart from the above 1egal position, we have observed that Messrs All Akbar Shah and Raja Muhammad Yaqoob Khan were appointed as Tehsildar by the Government Vide orders No. Admin. 167-76/81, dated 3-1-1981 and No. SM/665-75/81 dated 12-3- 1981. The respondent No.2, challenged these orders, but his plea was accepted by the Government and it was further ordered that his adjustment may be made on the post of Tehsildar. The appointment of respondent No.2, as Tehsildar was made on 1-7-1981, in pursuance of order dated 4-6-1981. The appellant kept mum and did not challenge the order, dated 3-1-1981 and 12-3-1981, therefore, he cannot reap the fruits of the efforts of respondent No.2, which resulted in the form of promotion of respondent No.2, in consequences of acceptances of his appeal. A person, who is negligent and sleeps over his right, cannot be given preference to one, who is vigilant and takes appropriate steps at the proper time.
7. So far as the question of show-cause notice to the appellant at the time of hearing the case, against Ali Akbar Shah and Raja Mohammad Yaqoob is concerned, he was not entitled to any such notice because he had his own right to challenge the orders, dated 3-1-1981 and 12-3-1981, but he omitted to do so. However, in the present case, the appellant has been properly heard by us. His claim for seniority has been rejected by us, on the basis of the facts and the law, applicable to his case. It is not out of place to mention that in the appeal, preferred by Muhammad Khurshid respondent No.2, against Ali Akbar Shah and Raja Mohammad Yaqoob Khan, against their promotion, the appellant was not a necessary party. The contention of the learned counsel for the appellant, is therefore, not tenable, in the circumstances of this case.
8. The contention of Khawaja Mohammad Saeed, learned Advocate for the appellant that at the time of promotion of respondent No.2 the appellant should have been considered as devoid of any force, for the reason that appellant had preferred the appeal against the promotion orders of Syed Ali Akbar Shah and Raja Mohammad Yaqoob Khan. His appeal was accepted by the Government and the promotion was the result of acceptance of appeal. In such a proceeding, the appellant could have not been considered. Even otherwise, he has no preferential claim for the reason that qualification and date of appointment of both the officers is same. No instance of extraordinary merit or ability has been brought to our notice. On the other hand, respondent No.2, is senior and naturally, he deserved preference.
9. As a result of our findings on the disputed points, the appeal is dismissed, with no order as to the costs.
A.A./43-S/Lb/S revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.