RAJA BASHIR AHMAD KHAN (CHAIRMAN).--- Appellant Abdul Ghani by way of this appeal, has assailed the order of Secretary Revenue issued under No. 2064-76, dated 18-4-1992.
2. The facts giving rise to this appeal are that the appellant was approved as candidate Girdawar in 1974. After undergoing necessary training of Revenue Work he joined service as Patwari as no vacancy of Girdawar was available in the Department. Appellant was promoted in' pursuance of recommendations of the Selection Committee as Girdawar vide Order No.Meem by/2135-41, dated 28-12-1983. This order was amended and Order No. Meem by/926-29, dated 26-7-1984 was issued whereby the appellant's appointment as Girdawar was declared against the direct quota of Girdawars. The Department issued seniority list of Girdawars in Settlement Organisation 1990.
Appellant was assigned a place at Serial No. 2 of the list. The said seniority list was circulated but none of the members of the service challenged that list. The respondents did not choose to file any appeal or review against the orders dated 28-12-1983 and 26-7-1984. The appellant, through Order No. 242-41, dated 11-1-1992 of Commissioner Revenue was adjusted/appointed office Qanoongo Kail. This order was issued in view of the instructions of Revenue Secretary issued under Order No. 7698-7710/89, dated 27-11-1989.
3 The respondents have filed their written objections and have denied the contents of memorandum of appeal.
4. We have heard the counsel for appellant and respondents Nos. 1 to 3.
Respondents No. 4 to 8 have filed their written arguments. We have given due consideration to the arguments addressed at the bar and have considered the written arguments of respondents Nos.4 to 8. We have also gone through (sic).
5. It is an admitted fact that the seniority of the appellant and respondents as Patwaris is not disputed. It is, however, agitated on behalf of appellant that appellant was assigned a position at Serial No. 2 of the seniority list of Muzaffarabad District, which was finalised in the year 1990. This seniority list has not been challenged by the respondents and therefore, it has attained finality. The respondents are therefore, estopped to dispute the seniority of the appellant as Girdawar. On the other hand it is submitted by the counsel for respondents and the respondents in their written arguments have also stated that in the seniority list of Patwaris relating to the year 1982 appellant has been shown junior to respondents and placed at Serial No. 51. It is again stated in their written statements and written arguments that appellant, who was junior most Patwari got his promotion in Settlement Organisation purely on temporary basis. Having earned his promotion in a temporary organisation appellant could not be absorbed in Revenue Department on permanent basis unless all persons senior to him were first promoted. The contention of respondents is not without force.
Appellant was promoted in Settlement Organisation vide Order No.-? r/2135/41, dated 28-12-1983, this order was issued under the authority of Settlement Officer, District Muzaffarabad. In this order it was, however, stated that appellant's lien would be retained against the post of Patwari Revenue.
This order was only amended to the extent that the appointment of appellant as Girdawar would fall under the category of direct appointment against a post in Settlement Department.
6. From the above facts it appears that appellant earned promotion/direct appointment in the Settlement Organisation of District Muzaffarabad. His lien as Patwari was kept in the Revenue Department. The perusal of impugned order shows that the reason, which prevailed with the Revenue Secretary to set aside the order of the Commissioner was to the effect that appellant as Patwari was junior to respondents who were permanent employees of Department. This, in fact is a back door through which the junior persons obtain their promotions temporarily in the Settlement Organisation' and thereafter get their adjustment in the Revenue Department. The adjustment of appellant is not justifiedand the order of Commissioner whereby appellant was adjusted against a vacant post in Revenue Department is not sustainable.
7. The seniority inter se of employees appointed to the post in the same grade in a Department is determined under the provisions of section 7 of Azad Jammu and Kashmir Civil Servants Act, 1976 and Rule 8 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service)
Rules, 1977. For determination of seniority under sub-clause (3) of section 7 of the Act, the Appointing Authority is required to prepare from time a seniority list of the members of service, cadre or grade. In the seniority list relating to Patwaris admittedly appellant is junior to the respondents.
8. The seniority inter se of the parties is to be determined in the manner provided under Rule 8 of Azad Jammu and Kashmir (Appointment and Conditions of Service) Rules, 1977. The above-stated rule is reproduced: "8.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 in the same, the order if not junior to the younger in the next below, grade, shall rank senior to the younger persons.
Explanation I--If a person junior in a lower grade is promoted to the 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 senior in the fixation of his seniority in the higher grade.
Explanation II--If a person junior in lower grade is promoted to higher grade by superseding his senior and subsequently the later 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 person 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 of 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 of 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 list 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 person already in service and amendments therein shall continue to be made in accordance with those rules to settle inter se seniority disputes among them."
Sub-clause (b) of Rule 8 is relevant in this matter which provides that m case of persons appointed otherwise than initial recruitment the inter se seniority shall be determined with reference to the dates of their continuous appointment in the grade. The appellant was promoted as Girdawar in Settlement Organisation. For the purposes of Rule 8 this organisation is not a comparable functional unit with the Revenue Department. Therefore, the seniority of the parties is to be determined with reference to their continuous appointment as Patwaris in the Revenue Department."
9. The learned Secretary Revenue while setting aside the order of Commissioner to the extent of the appellant has remanded the case to the Commissioner with directions that the matter may be decided afresh according to the law and after providing the opportunity of personal hearing to the parties. Since the learned Revenue Secretary has directed Revenue Commissioner to pass proper orders we feel advised to avoid giving detailed reasons for determination of the seniority of the parties. The Commissioner may proceed with the matter as directed by Appellate Authority.
10. In the circumstances we are of opinion that the appellant has failed to make any case for interference in the order of the Appellate Authority. -The result is that the appeal is liable to be dismissed and we order accordingly. The parties shall bear their respective costs.