SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN).--The appellant Abdul Qayyum has preferred this appeal against the Government Order No, 9685-94 dated 23-10-1986 by which he was deprived of the next higher pay scale No,18 while the same was given to the respondents No,3 to 6 who at the relevant time held junior position in Pay Scale No, 17 as compared to the appellant holding the post of Editor of Assembly Debates and having a supervisory jurisdiction over them.
2. The relevant facts to be briefly stated are that the appellant is holding a Master's Degree in Journalism and also the Degree of Laws. Initially on 13-8-1975 he was appointed as Editor of Debates in the Legislative Assembly and subsequently on 1st January, 1976 he was placed in Pay Scale No, 17 while respondents Nos, 3 to 6 were placed in that Pay Scale on upgradation of their posts after a long period of six months and thirteen days. But the appellant is aggrieved that by following the principle of parity, the respondents Nos, 3 to 6 have been allowed Basic Pay Scale No,18 under the impugned order and the appellant's case was not considered for his placement in the next higher scale (Basic Pay Scale No,18) on this analogy that his counterpart in the Punjab Assembly was still in Pay Scale No, 16 and for that reason the appellant was not entitled to that pay scale. The appellant moved a petition before the learned Speaker of the Assembly for being placed in Basic Pay Scale No, 18 but no decision was taken by him on his petition and he was forced to bring the present appeal before this forum under section 4 of the Service Tribunals Act, 1975 for the redress of his grievances.
3. Objections were filed on behalf of the respondents to the effect that since the appellant has not availed of the departmental remedy available to him, his appeal at this forum was not maintainable. The appellant and the respondents belong to different cadres of service and as such the appellant was not justified to claim seniority over the respondents who were already placed in Basic Pay Scale No,
18. The appellant being employed in a separate cadre of service does not hold any supervisory position over the respondents whose seniority inter se is separately maintained by the Assembly Secretariat. It was also pointed out that the appeal of the respondent being time-barred was not maintainable on that account at this forum.
4. The appellant's prayer is that he being a senior Officer of the Assembly Secretariat may also be upgraded in Pay Scale No,18.
5. We have heard the arguments as were addressed at the Bar by the learned counsel of each party. We have also examined the record and the relevant rules of service of the Assembly. Secretariat. The grievance of the appellant is that he having held a supervisory position over the respondents was deprived of his established seniority and Pay Scale No, 18 while the objections submitted by the respondents are that the appellant and the respondents Nos, 3 to 6 are in different cadre of service and their seniority inter se is not common. The objections of the respondents are dealt with in the paragraphs given next hereafter.
6. It is argued on behalf of the appellant that under the Azad Jammu and Kashmir Legislative Assembly Secretariat Ministerial Service Rules, 1981, all the Officers of the Assembly Secretariat other than Secretary, Deputy Secretary and Assistant Secretary have been placed in the common roster and their seniority inter se was to be determined under the aforesaid Rules. In the instant case the upgradation of respondents Nos,3 to 6 at the initial stage was ordered from non-gazetted cadre to gazetted cadre and the Assembly Secretariat Ministerial Service Rules held the binding force as regards their seniority inter se and any departure from the provisions of said rules of procedure would have made the things obscure and complicated.
7. It may be pointed out that the upgradation of posts is to be effected under the provisions of Upgradation of Posts Rules, 1984 issued under Government Notification No, S&GAD/JS/1-A/1136-1238/84 dated 15-12-1984.
The relevant Rules 2 to 5 of the Rules referred to are reproduced below for guidance:-- (2)Upgradation of a post shall imply the abolition of the existing post and creation of a new post in the higher grade.
(3)Upgradation of a post shall not mean automatic upgradation of its incumbent.
(4)Appointment to upgraded post shall have to be made in the manner prescribed for that post.
(5)If a post is upgraded with immediate effect, the incumbent shall be left without any post in his grade until he is approved for appointment to higher grade. Therefore, while sanctioning upgradation of the existing posts, it shall be clearly provided in the sanction letter that upgradation of the post would take effect from the date the post is filled by a person in the higher grade. Until the existing incumbent is formally appointed to higher grade the post and the incumbent would continue in lower grade.
8. A plain reading of the above rules would make it clear that the upgradation of post does not necessarily mean the upgradation of its incumbent. In fact, the upgradation of post would impliedly mean the abolition of the existin post and creation of a new post in the higher grade and the appointment to that new post in the higher grade is to be made in the manner prescribed for that post. In other words it is to be interpreted in this way that a vacancy caused due tt upgradation of post is to be filled up by following the same Rules of appointmen as are normally followed in other cases. The incumbent of post which is upgraded does not have any exclusive right for being promoted/posted on that post. But in the instant case, the respondents have been placed against the upgraded posts without considering their rights of promotion on merits. It is perhaps this reason that the appellant's case was not considered for being placed in Basic Pay Scale No, 18.
9. The post of Editor of Debates has been placed at serial No, 4 next below to the post of Assembly Reporter in Azad Kashmir Assembly Secretariat Ministerial Service Rules, 1981 and this post is to be filled up through initial recruitment. Under the aforesaid rules a person who is a matriculate or who is having equal qualifications to that with a speed of 130 words in Shorthand and 35 in typing is eligible for being appointed as Assembly Reporter.
But the qualifications prescribed for Editor of Debates require that he must be a holder of a degree from a recognized University alongwith a Diploma in Journalism. A vast difference is noted in the qualifications prescribed for the appointment of a Reporter and that of an Editor of Debates. In case of former, a matriculate is acceptable in service and in case of latter, the qualifications prescribed in the aforesaid rules are comparatively very high which, no doubt, place him in a higher rank and position than that of a seat held by a Reporter in the Assembly. There can be no two opinions about it that the post of Editor of Debates carries higher responsibilities as compared to a Reporter and he is having a supervisory jurisdiction also over the former because of the fact that the latter is entrusted with the job of finalizing the reports and speeches of the Assemhly Members to be submitted to the Secretary of the Assembly for reporting the same in all medias of National Press and other information Centres. This is even conceded by the respondents also in their written objections.
10. According to the information supplied by the Secretary of Punjab Assembly Secretariat to the Azad Jammu and Kashmir Assembly Secretariat, the post of Editor of Debates has been placed in a separate cadre and it must be like that because there is a vast difference between the qualifications prescribed for the recruitment of a Reporter and that of Editor of Debates. But it does not mean that being in separate cadres of service, the Editor of Debates must not be allowed higher scale of pay as compared to the Assembly Reporter who is comparatively holding a junior post in the service. If the post of Editor of Debates is not upgraded and placed in Grade No, 18, it may be a misfortune of that Editor of Debates posted in the Assembly of the Punjab. But under no circumstances, a person holding a Master's Degree in Journalism should be asked to continue on a post carrying low pay scale than that of an Assembly Reporter. Moreover, such a course of action would lead to an anamolous position keeping in view the supervisory nature of duties assigned to the Editor of Debates.
11. It is the settled principle of law that every Officer in a graded service has a vested right to a proper place in the seniority list. This is of the highest importance for a civil servant as well as to the maintenance of proper discipline and order within the service and consequently to the public interest which is deeply involved in the maintenance of proper spirit of order and discipline within the service. The seniority rules are of the highest validity and have the quality of settling the important matters of seniority among all ranks of the Officers in service. In the instant case, the seniority of the members of the Ministerial Staff was, no doubt, ordered to be determined under section 9 of the Azad Jammu and Kashmir Legislative Assembly Ministerial Service Rules, 1981. But we find nothing on the file to show that any seniority list was ever maintained by the Assembly Secretariat for the promotion of appellant or that of respondents Nos, 3 to 6 in the next higher grade. The present upgradation has been ordered accepting the principle of parity with the Reporters of the Punjab Assembly and presently it cannot be ascertained as to which of the rules of service would be applicable to the appellant and the respondents. But for the maintenance of proper order and discipline in the Assembly Secretariat, it is essential that it should have separate rules of service for its employees. The upgradation of a post entails question of promotion of its incumbent who held the same in lower scale of pay before its upgradation and without firstly having the seniority and suitability of the incumbent determined in order of his merit, the decision taken to fill up the post with the same person who held it immediately before in lower grade does not seem to be well-advised.
12. It is argued on behalf of the respondents that the present appeal before this forum was not competent because the appellant was not entitled to bring this appeal under section 4 of the Service Tribunals Act without previously availing of the departmental remedy. It is very unfortunate that the Office of Accountant-General has hurriedly implemented the policy decision of the President without awaiting formal orders of promotion from the Assembly Secretariat. It falls within the jurisdiction of Administrative Department to look forward for a suitable person to be appointed against the newly-upgraded post and under no circumstances a person holding that post immediately before its upgradation has exclusive entitlement to he appointed against that post. In fact, the appellant is aggrieved by the act of Accounts Department.which liberally allowed the new Pay Scale to the respondents without calling for the proper orders of the Assembly Secretariat. Since the Accounts Department is not under the Administrative Control of Azad Jammu and Kashmir Government, the Azad Jammu and Kashmir Civil Servants (Appeal) Rules, 1982, were not relevant to be made applicable to the case of appellant and he had no departmental remedy to seek except to make a representation before the learned Speaker of the Legislative Assembly which he has availed of at the proper time. The order, of Accountant-General allowing the salary of the respondents in Pay Scale No 18 is without jurisdiction and is, therefore, held to be ab initio void.
Therefore, the limitation provided for filing the present appeal does not run against that order. The objection of the respondents is brushed aside.
13. For the reasons discussed as above, we partly allow this appeal and order that the claim of the appellant he also considered for Basic Pay Scale No,
18. A copy of this order shall be endorsed to Secretary Legislative Assembly, Azad Jammu and Kashmir, Muzaffarabad for necessary action. No order as to the costs.