1. ' SARDAR SAID MUHAMMAD KHAN, CJ.--As the above entitled appeals arise out of the single judgment of the Service Tribunal and common questions of fact and law are involved, we propose to dispose of the same by this single judgment.
2. ' Brief facts giving rise to the present appeals are that the appellants challenged the validity of sub-rule (3) of rule 15 of the Rules known as 'The Azad Jammu and Kashmir Extra-Assistant Commissioners (Recruitment and Promotion) Rules, 1980' (hereinafter shall be called the E.A.C.
3. Rules), whereby, according to the case of the appellants, they have been demoted from the rank of the Assistant Commissioners to Extra-Assistant Commissioners and, thus, their conditions were changed to their disadvantage in violation of law. The appellants claimed before the Service Tribunal that they were promoted as Sub-Divisional Magistrates/Assistant Commissioners from the posts of Tehsildars in Grade-17 but subsequently the Government framed the E.A.C. Rules which were amended afterwards and the said amendment resulted in violation of the terms and conditions of their service, as the appellants were demoted from the posts of Assistant Commissioners to Exrtra-Assistant Commissioners. It may be observed that initially the appeals of the appellants before the Service Tribunal were dismissed on merits but on appeals to this Court, the cases were remanded on a technical ground and the Service Tribunal was directed to decide the same afresh. The Service Tribunal again dismissed the appeals holding that the Government was fully competent to frame the aforesaid rules and make the amendment therein; and that the relevant amendment was not violative of any terms and conditions of the service of appellants because the appellants had not been appointed as Assistant Commissioners prior to the enforcement of the EA.C. Rules. The view taken by the Service Tribunal was that the appellants were promoted as Sub-Divisional Magistrates in Grade-17 from the posts of Tehsildars and not as Assistant Commissioners. It was further opined by the Service Tribunal that the promotion of the appellants as Sub-Divisional Magistrates does not mean that they were appointed as Assistant Commissioners merely because subsequently they were also holding the charge as Assistant Commissioners or were so designated in the respective Sub-Divisions.
4. ' We have heard the learned counsel for the parties. It has been contended by Mr. Manzoor Hussain Gillani, the learned counsel for the appellants, that the Service Tribunal has not properly considered the effect of the joint seniority list which contains the names of the appellants and those who were appointed as Assistant Commissioners. He has referred to the documents placed on the record showing that the posts of Assistant Commissioners and Sub-Divisional Magistrates were treated at par for all practical purposes and were mutually transferable. He has also referred to some Government Orders to substantiate his contention that the said posts were inter-transferable and even in case of promotion, the Sub-Divisional Magistrates and Assistant Commissioners used to be promoted as Deputy Commissioners. Thus, according to the learned counsel for the appellants, the service cadre of the Sub-Divisional Magistrates and Assistant Commissioners was the same; especially so because not only that the posts were mutually transferable but also were carrying the same grade, i,e, Grade-17. The learned counsel has maintained that the effect of sub-rule (3) of rule 15 of the EA.C. Rules was that the appellants, who could have been promoted as Deputy Commissioners previously while enjoying the status of Assistant Commissioners and Sub- Divisional Magistrates, have now been made the Extra-Assistant Commissioners who can be promoted only as Assistant Commissioners and then as Deputy Commissioners under clause (b) of sub-rule of Rule 4 of the Rules known as 'The Azad Jammu and Kashmir Management Group (Composition, Recruitment and Promotion) Rules, 1980' (hereinafter shall be called as the Management Group Rules). The learned counsel for the appellants has further contended that the application of sub-rule of rule 15 of E.A.C. Rules, is practically retrospective in nature, whereas retrospective effect cannot be given to take away the vested rights of a civil servant. The learned counsel has further contended that the Service Tribunal has also committed error in holding that as the appellant, Nasir-ud-Din Gillani, did not challenge the order passed in review petition to the Government, his appeal was even otherwise incompetent. The learned counsel has referred to the memorandum of appeal filed by Nasir-ud-Din Gillani before the Service Tribunal to substantiate his contention that in fact he had indirectly challenged the order passed by the Government on review as mentioned in the memorandum of appeal. He has contended that mere fact that he has not specifically mentioned that the order passed on his review petition should be vacated, cannot be interpreted to mean that the order passed on his review petition was not challenged before the Service Tribunal. He has referred to a case of this Court reported as Raja Muhammad Ashraf Kayani v. The Azad Jammu and Kashmir Government 1989 PLC (C.S.) 561 to support his contention. The learned counsel has also cited the following authorities to substantiate his contention so far as the same pertained to the invalidity of sub-rule (3) of rule 15 of the EA.C. Rules.
5. ' In Ex-Capt. Ashok Kumar Sawhney v. Union of India AIR 1982 SC 795, it was opined that sub-rule (3) of rule 6 of Central Civil Services and Posts (Class I) Rules was intended to be prospective only in the sense that every seniority list prepared after the date of the promulgation of the said rules and every promotion thereafter would be governed by the new rules and thus the relevant rule could not be termed as retrospective in nature. It was observed that it was correct that inter se seniority which had been determined in view of the old rules, and any promotion made in pursuance of such seniority list would not be affected but any question of seniority or promotions which were to be made after the promulgation of the new rules would be governed by the provisions of new rules and not the old rules.
6. ' In Wing Commander, J. Kumar v. Union of India AIR 1982 SC 1064, it was opined that it is settled principle of law that the service conditions pertaining to seniority are liable to be altered by making change in the relevant rules. However, it was opined, the promotions which had already been earned under the previous rules, the revised rules would not affect those promotions; thus, the revised rules would govern the question of seniority and future promotion and not the old rules.
7. ' It is evident from the above cited authorities that these do not help the case of the appellants; rather the authorities recognise the principle that the question of seniority and promotions can be changed by framing new rules with the exception that the promotions which have already been made in consequence of previous seniority lists would not be affected. In other words, in view of the dictum laid down in the aforesaid cases, the terms and conditions of service relating to a seniority list or the promotion can be altered by amending the original rules or substituting the same by new ones.
8. ' In case reported as Ex-Major N.C. Singhal v. Director-General, Armed Forces Medical Services, New Delhi AIR 1972 SC 628, the question was that a certain pay of an employee was fixed in view of an Army Instruction issued in the year 1954. Subsequently, another instruction was issued by the authorities concerned whereby the pay of the employee concerned was reduced. It was held that the pay being a term and condition of the service, the same cannot be reduced by issuing subsequent instructions giving the same a retrospective effect. It may be observed that in the aforesaid case the question of terms and conditions of service pertained to the pay of the relevant employee and not to the future prospects of his promotion or seniority. It may be stated here that the terms and conditions of service relating to pay, age etc. Were treated at different footings from the question of seniority and prospects of promotion to the next higher post in view of Article 314 of Indian Constitution which was subsequently deleted by a Constitutional amendment introduced by Article 312-A whereby the terms and conditions of certain services relating to pay, pension and leave could be changed only by an Act of Parliament. However, no protection was extended to rules pertaining to promotion and seniority etc. ' In reply it has been contended by the learned counsel for the respondents that the Government was fully competent to frame the rules in question. It has been further contended that even otherwise the E.A.C. Rules do not violate any terms and conditions of the appellants because the appellants had never been appointed as Assistant Commissioners. It has been argued that no order or rule has been cited to the effect that the appointment of the appellants as Sub-Divisional Magistrates can be regarded as the appointment as Assistant Commissioners. It has been argued that the aforesaid rule cannot be termed as resulting in demotion of the appellants because the appellants continue to enjoy Grade-17 which they were having before the E.A.C. Rules. It has been further contended that prospects of their future promotions cannot be regarded as terms and conditions of civil servants and even otherwise those are alterable by enforcing new rules.
9. ' The first question which needs to be resolved is as to whether the appellants were ever appointed as Assistant Commissioners. As has already been pointed out the case of the appellants is that they were promoted as Sub-Divisional Magistrates from the posts of Tehsildars in Grade-17 and subsequently they were also designated as Assistant Commissioners and have been performing their duties as Assistant Commissioners in their respective sub-divisions. They have mainly relied upon the instances that the posts of Sub-Divisional Magistrates and Assistant Commissioners were treated at par and were mutually transferable. It may be observed at the very out-set that the appointment by promotion is to be made according to the prescribed mode. There is nothing on the record to show that in fact the appellants were appointed as Assistant Commissioners, except that the learned counsel for the appellants has referred to a letter written by the Public Service Commission to the Government that the appellants and some others were confirmed as Assistant Commissioners/Sub-Divisional Magistrates. It is not clear from the aforesaid letter as to whether all the persons whose names have been mentioned in the said letter were confirmed as Assistant Commissioners/Sub-Divisional Magistrates both or some of them were confirmed as Sub- Divisional Magistrates and others as Assistant Commissioners. Even if it is assumed for the sake of argument that they were confirmed both as `Assistant Commissioners' and 'Sub-Divisional Magistrates', that would be of no avail to the appellants until and unless it is shown that in fact initially the appellants were appointed as Assistant Commissioners subject to confirmation by the Selection Board. If the appellants were not appointed as Assistant Commissioners, they cannot attain the status as such merely because they were so confirmed. The orders of appointment as Assistant Commissioners were necessary to prove that they had attained the status of Assistant Commissioners. The mere fact that they were also designated as Assistant Commissioners in their respective sub-divisions would not mean that they were appointed as Assistant Commissioners. As the appellants were never appointed as Assistant Commissioners either by promotion or otherwise, it cannot be said that they were reverted from the posts of Assistant Commissioners to the posts of Extra-Assistant Commissioners.
10. ' The next question which falls for determination is as to whether prior to the enforcement of E.A.C.
11. Rules and Management Group Rules, referred to above, there were any rules or any notification wherein it was stipulated that Assistant Commissioners and Sub-Divisional Magistrates would belong to the same class of service or cadre and they had a right to be considered to be promoted as Deputy Commissioners. No such rule or any other law has been cited showing that the Sub- Divisional Magistrates or Assistant Commissioners were treated to be same class of service or cadre and thus had a right to be considered for promotion as Deputy Commissioners. Section 3 of the Civil Servants Act says that the terms and conditions of service of civil servants would be as provided in the Act or the rules framed thereunder. There is no provision in the Civil Servants Act, 1976, regarding the point at issue nor there are any rules on the subject. The rules are to be framed by the Government under section 23 of the Civil Servants Act. The rules known as the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, (hereinafter shall be called as the Conditions of Service Rules), do not envisage the promotion of Assistant Commissioners/Sub-Divisional Magistrates to the posts of Deputy Commissioners. Under section 8 of the Civil Servants Act, 1976, a civil servant possessing minimum qualification prescribed is eligible to be considered for promotion to a post for the time being reserved under the departmental rules for departmental promotion in any higher grade of the service or cadre to which he belongs. It has not been shown that any departmental rules, as envisaged under section 8 of the Civil Servants Act, were framed which entitle the appellants to be considered for promotions as Deputy Commissioners. Thus, we have no hesitation in holding that there existed no rules prior to the EA.C. Rules and Management Group Rules as to how the posts of Deputy Commissioners were to be filled in, if at all the same were to be necessarily filled in from the Assistant Commissioners or Sub-Divisional Magistrates. Consequently, it cannot be said that there were any terms and conditions pertaining to the promotions of the appellants as Deputy Commissioners prior to the enforcement of the E.A.C. Rules and Management Group Rules, which have been breached by impugned sub-rule (3) of the rule 15 of the EA.C. Rules, read with rule 4 of the Management Group Rules. The mere fact that prior to the enforcement of the said Rules there was practice that Assistant Commissioners and Sub-Divisional Magistrates were promoted as Deputy Commissioners, cannot be interpreted to mean that same was a term or condition of the service of the appellants; specially so when according to section 3 of the Civil Servants Act, the terms and conditions would be those envisaged in the said Act or the rules framed thereunder.
12. ' Assuming for the sake of arguments that there existed any rule pertaining to the promotions of the appellants as Deputy Commissioners, the next question would arise as to whether the Government was competent to amend the said rules to the disadvantage of the appellants. It may be observed that under section 49 of the Interim Constitution Act, 1974, the terms and conditions of civil servants are to be regulated by law. In pursuance of the aforesaid provisions, the Azad Jammu and Kashmir Civil Servants Act, 1976, was enacted; section 23 invests the Government with power to frame rules for carrying out the purpose of the said Act. However, the rules can be framed subject to the provisions of Interim Constitution Act and Civil Servants Act. It implies that if the terms and conditions of a civil servant have been laid down in the Interim Constitution Act or Civil Servants Act, those cannot be altered by the statutory rules framed under section 23 of the Civil Servants Act. Except the aforesaid limitation, there is no embargo on the powers of the Government to frame rules; or subsequently to amend them or totally substitute the same by new rules.
13. ' Now the question arises as to whether there were any limitations envisaged by the Interim Constitution Act or under the provisions of Civil Servants Act which place embargo on the powers of the Government to frame rules or to amend the same subsequently to the disadvantage of the appellants. The learned counsel for the appellants could not' refer to any such embargo. There is no such limitation on the powers of the Government either in the Interim Constitution Act or in the Civil Servants Act. Thus, the Government was fully competent to frame the rules regulating the service of the appellants or to amend any rules even if the same are less favourable to earlier rules on the subject, if any. It has already been pointed out that two authorities which were cited by the learned counsel for the appellants from Indian jurisdiction approve the view that the rules framing authority, if, of course, there are no limitations placed on it by law, is empowered to alter and amend the rules to the disadvantage of the concerned civil servant in = the matters of seniority or promotion. The said principle has been also affirmed in case, reported as Roshan Lal Tandon v.
14. Union of India (AIR 1967 SC 1889) wherein has been observed as under:-- "We pass on to consider the next contention of the petitioner that there was a contractual right as regards the condition of service applicable to the petitioner at the time he entered Grade 'D' and the condition of service could not be altered to his disadvantage afterwards by the notification issued by the Railway Board. It was said that the order of the Railway Board, dated January 25, 1958, Annexure 'B', laid down that promotion to Grade 'C' from Grade 'D' was to be based on senioritycum-suitability and this condition of service was contractual and could not be altered thereafter to the prejudice of the petitioner. In our opinion, there is no warrant for this argument. It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract. The hallmark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emoluments of the Government servant and his , in, service are governed by statute or statutory rules which unilaterally altered by the Government without the Consent of the employee."
15. It follows from what has been stated above that even if it is assumed that there were any rules prior to enforcement of EA.C. Rules, the Government was fully competent to amend or alter the same even if the subsequent rules are less advantageous to the appellants so far their promotions as Deputy Commissioners were concerned.
16. ' It has already been stated that the learned counsel for the appellants has also drawn our attention to the so-called copy of combined seniority list wherein the names of the Assistant Commissioners and Sub-Divisional Magistrates, including that of the appellants, appear. The list does not show whether the same was a final list and was approved by the competent Authority, i,e,, the appointing Authority. The seniority list of civil servants is to be prepared under section 7 of the Civil Servants Act and Conditions of Service Rules. It would be expedient to reproduce section 7 of the Civil Servants Act below so as to properly elucidate the matter at issue:-- "(1) Seniority on initial appointment to a service, cadre, grade, or post shall be determined in the prescribed manner.
(2) Seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to a post in that grade.
(3) For proper administration of a service, cadre or grade, the appointing Authority shall from time to time cause a seniority list of the members of such service, cadre or grade to be prepared.
(4) Subject to the provisions of subsection (3), the seniority of a civil servant in relation to other civil servants belonging to the same service, cadre or grade, whether serving in the same department or office or not, shall be determined in such manner as may be prescribed."
17. It is evident that under subsection (4) of section 7 of the Civil Servants Act, the seniority of a civil servant in relation to other civil servants belonging to same class, cadre or grade, whether serving in the same department or office or not, is to be determined in such a manner as may be prescribed. Ordinarily, it cannot be said that the Sub-Divisional Magistrates and Assistant Commissioners belong to the same class of service. It has not been shown that there are any rules or Government orders which declared the said posts belonging to same class of service or cadre for the purpose of promotion as Deputy Commissioners; nor any law has been cited that a joint list of those serving as Sub-Divisional Magistrates and the Assistant Commissioners was permissible under law. Thus, even if it is assumed that there was a common list of seniority of the Assistant Commissioners and the Sub-Divisional Magistrates, that would not prove that the persons appointed as Sub-Divisional Magistrates and those appointed as Assistant Commissioners were at par for the purpose of promotion as Deputy Commissioners. The mere fact that there had been a practice in the past in that regard would not entitle the appellants to claim such a parity for the purpose of their promotions as Deputy Commissioners.
18. ' The question as to whether the E.A.C. Rules are of no legal effect against the appellants because the same are retrospective in nature, it may be observed that the said rules have not been given retrospective effect. The mere fact that the terms and conditions of the appellants relating to their promotions would be governed in furture by virtue of rule 15 of the E.A.C. Rules read with section 4 of the Management Group Rules would not render the operation of the said rule to be retrospective in nature. The Rules are operative only in terms that in future the terms and conditions of service of the appellants so far as the same relate to their promotions would be governed by the aforesaid rules. Any vested right of a civil servant, which existed before the promulgation of the said rules, would not be adversely affected. It has already been pointed out that in the instant case it has not been shown that there were any rules entitling the appellants to claim promotion as Deputy Commissioners. Thus, it cannot be said that the impugned rules, in any way, operate retrospectively and adversely affect any vested right of the appellants, especially so when it has not been shown that they were ever appointed as Assistant Commissioners. We find support in our view from the authorities reported as Ex-Capt. Ashok Kumar Sawhrey v. Union of India AIR 1982 SC 795 and Wing Commander, J. Kumar v. Union of India AIR 1982 SC 1064, referred to above.
19. ' Before parting with this case we wish to observe that prior to the enforcement of the Extra Assistant Commissioners Rules as well as the Management Group Rules the position of an Assistant Commissioner and a Sub-Divisional Magistrate was equal. The two positions carried equal grade and by practice both were inter-changeable. In the past, it was not an Assistant Commissioner who alone could be promoted as a Deputy Commissioner but the post of Deputy Commissioner was also filled from amongst the Sub-Divisional Magistrates. There were no rules to that effect as envisaged by section 8 of the Civil Servants Act but it was only a practice which did not create a right either in favour of the Assistant Commissioners or the Sub-Divisional Magistrates.
20. Thus, the civil servants belonging to these two categories were equal in this respect. After the promulgation of the two sets of Rules mentioned above the doors of promotion as Deputy Commissioner have been closed to the Sub-Divisional Magistrates and this post has been reserved for promotion for Assistant Commissioners. That is not all. The Sub-Divisional Magistrate has now been relegated to the position of Extra-Assistant Commissioner which is a post junior, if not subordinate, to the post of Assistant Commissioner although carrying same scale. A person who was a Sub-Divisional Magistrate previously and could be promoted as Deputy Commissioner has not to wait for promotion as Assistant Commissioner. In this view of the matter the treatment meted out to the appellants and other persons in the same category cannot be termed as just. We have not been able to give any relief to the appellants in view of the state of law as it exists now but we are making this observation with the hope that the Government may consider the possibility of giving some relief to the appellants, if possible, by amending the relevant rules or otherwise.
21. ' In the light of what has been stated above, the above entitled appeals are dismissed without any order as to the costs.