1. BASHARAT AHMAD SHAIKH, J.---This is a service matter. The civil servants involved in the present litigation belong to the Local Government and Rural Development Department and the dispute is about seniority. The appellant challenged the final seniority list of the Officers of the said department placed in BPS-17 praying that he may be declared senior to the seven private respondents. The Service Tribunal has dismissed the appeal. Hence this appeal by leave.
2. The seven private respondents began their career in the subordinate ranks in the Local Government Department and were promoted on `ad hoc and temporary' basis as Project Managers in BPS-17. All of them, except respondent No. 10 Syed Muhammad Anwar Shah, had been promoted on 27th of July, 1975. The appellant, Ghulam Mustafa Qureshi, was directly appointed on ad hoc basis as Assistant Director, a post carrying BPS-17, on 27th July, 1975. Respondent No. 10 Syed Muhammad Anwar Shah, mentioned above, was promoted on `ad hoc and temporary' basis as Project Manager in BPS-17 on the same day. Ghulam Mustafa Qureshi appeared before the Public Service Commission and on being approved his appointment was ratified/confirmed on 27th of May 1980. The respondents, however, continued to serve on ad hoc basis and five out of them were promoted on regular basis vide Government Order dated 16-5-1983, on the recommendation of the Public Service Commission. Respondents Nos. 5 and 10, Zaffar Ali Shah and Muhammad Anwar Shah have not yet been confirmed.
3. The Service Tribunal formed the view that seniority of the contesting civil servants was to be determined in accordance with Kashmir Civil Service Rules (contained in K.S.R., Vol. 11), because the appointment of the appellant as well as promotion of respondents took place prior to the enactment of the,, Azad Jammu and Kashmir Civil Servants Act, 1976 and the rules of seniority made thereunder. In reaching this conclusion the Service Tribunal followed, amongst others, a judgment of this Court in 'Muhammad Ashraf Kiyani v. Azad Government and others' (1989 PLC (C.S.) 561). The learned counsel for the parties Mr. M. Tabassum Aftab Alvi and Raja Muhammad Hanif Khan agreed in their arguments in this Court that Civil Servants Act and Rules made pursuance thereof do not apply to the present case. They agreed that Authority has to be determined in accordance with Kashmir Civil Service Rules as has been held by the Service Tribunal. However, Mr. M. Tabassum Aftab Alvi contended that rule 17 of the AJ&K Rules of Business, 1971 was also fully applicable to the facts of the present case.
4. In Kashmir Civil Service Rules seniority is dealt with in sub-rule (a) of rule 24 which is to the following effect:-- "24:"(a) The seniority of a person who is subject to these rules has reference to the service, class, category or grade with reference, to which the question has arisen. Such seniority shall be determined by the date of his first appointment to such service, class, category or grade, as the case may be."
5. The learned counsel appearing on both the sides have interpreted the above extracted sub-rule in different ways. Mr. Tabassum Alvi contended that the term `first appointment' occurring in this sub- rule refers to the appointment on regular basis and does not include the appointment on temporary or ad hoc basis. On the other hand Raja Muhammad Hanif Khan contended that there is nothing in the phraseology of the sub-rule, which may give rise to any such interpretation as was being canvassed by Mr. Aftab Alvi. He submitted that the words used by the law-makers are plain and do not have to be given any artificial meanings. According to him `First appointment' begins from appointment whether regular or ad hoc.
6. The word `appointment' and the phrase `first appointment' have not been defined in the K-C.S. Rules. Similarly the phrase `ad hoc' has not been used in these rules but the concept attached with this phrase is duly embodied in the Rules both for promotion and initial recruitment and are called as temporary promotion and temporary appointment. Apart from other provisions of the K.C.S. Rules the provisions about temporary promotion and temporary appointment will be helpful in determining the true connotation of `first appointment' as contained in rule 24 which lays it down as the starling point of seniority. Rule 9 of the K.C.S. Rules says that: "First appointment to a service or class may be made-- (i)by transfer or promotion from another service or class, or (ii)by direct recruitment, or (iii)partly by (i) and partly (ii)."
7. It follows that the phrase `first appointment' is used in the Rules if a Government servant is promoted to a service or class or if a person is directly recruited to a service or class. It thus transpires that according to the Rules the date of first appointment is the date on which a person is promoted or directly recruited, as the case may be.
8. When is a Government servant promoted under the K.C.S. Rules? Promotion is defined in the Rules as: "(vii) `Promotion' means the appointment of a member of a service or class of a service, in any category or grade, to a higher category or grade of such service or class."
9. Rule 25 deals with promotions and may be usefully reproduced:-- "25.--(a) All promotions shall be made by the appointing authority.
10. (i)Promotions to a service or class or to a selection category or grade in such service or class shall be made on grounds at merit and ability and shall be subject to the passing of any tests that Government may prescribe in this behalf, seniority being considered only where the merit and ability are approximately equal.
11. (ii)All other promotions shall be made in accordance with seniority and subject to any tests or special qualifications prescribed by Government unless-- (i)the promotion of a member has been withheld as a penalty; or (ii)a member if given special promotion for conspicuous merit and ability.
12. (b)(i) Where it is necessary in the public interest owing to an emergency which has arisen and could not have been foreseen to fill immediately a vacancy by promotion from a lower category, and where promotion in accordance with these rules would involve undue delay or expenditure or cause administrative inconvenience the appointing authority may promote a person, otherwise than in accordance with the rules temporarily until a person is promoted in accordance with the said rules, but such temporary promotion shall in no case exceed three months on each occasion.
(ii) A person promoted under clause (i) shall not be entitled by reason only of such promotion to any preferential claim to future promotion."
13. This rule creates two categories, which are separately dealt with respectively in sub-rule (a) and sub-rule (b). Sub-rule (a) refers to `promotions' while sub-rule (b) provides for `temporary promotions'. We have already seen that in rule 9 the word `promotion' and not the phrase `temporary promotion has been employed to denote `first appointment'. It, therefore, becomes clear that a person can commence `first appointment' only when he has been promoted-in accordance with the relevant rules and not when he is temporarily promoted for a period of three months.
14. Like promotion direct recruitment is also similarly divided in two parts. We have already seen that rule 9 partly deals with first appointment by direct recruitment. Rule 8 also is a relevant provision and may also be reproduced: -- "8.All first appointments to any service or class shall be made by Government or by an authority empowered by Government in this behalf and where they are made by an authority subordinate to Government they shall, except with the sanction of Government, be made to the lowest category or the lowest grade of a category if it consists of more than one grade."
15. Temporary appointments are dealt with in rule 14, which is to the following effect: -- "14--(i) Where it is necessary in tire public interest owing to an emergency which has arisen and could not have been foreseen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and the making of an appointment to such vacancy in accordance with these rules would involve undue delay, excessive expenditure or administrative inconvenience, the appointing authority may appoint a person, otherwise than in accordance with the said rules temporarily, until a person is appointed in accordance with the said rules but such, temporary appointment shall in no case exceed 3 months on each occasion.
(ii) Every appointment made under clause (i) together with all the particulars relating to the persons so appointed, namely the date of appointment, the duration of the vacancy and the period, or periods, if any for which the same person had previously held a post borne on the cadre of the same service, class or category, the nature of the emergency or inconvenience and the reasons for the appointment shall be reported without delay to the Minister-in-Charge if the order is passed by a lower authority.
(iii) A person appointed under clause (i) shall be replaced as soon as possible by a- member of the service or a candidate qualified and considered fit to hold the post under the said rules.
(iv) A person appointed under clause (i) shall not be regarded as a probationer in such service, class or category or be entitled by reason only of such appointment to any preferential claim to future appointment to such service, class or category."
16. The concept given in rule 14 is the same as that of ad hoc appointment in the service laws subsequently framed and is in vogue nowadays. It is on the same footing as `temporary appointment' as seen above. Therefore, a person can only be deemed to begin his first appointment if he is qualified and considered fit to hold the post in accordance with the rules and begins his probation.
17. At the relevant time Rules of Business, 1971 were in force which contained a provision in rule 17 which made it mandatory for the Government to consult the Public Service Commission in all cases of appointments, whether by promotion or by direct recruitment, to gazetted posts. This provision was examined by this Court in `Inayat Ullah Chaudhry v. Azad Government' (1990 PLC (C.S.) 598) and it was held that this rule prevailed against the Kashmir Civil Service Rules and therefore, appointments by promotion or by direct recruitment could only be validly made in accordance with rule 17. Leaving out those parts which are not relevant to the issue, rule 17 was to the following effect:-- "17.Public Service Commission--(1) The Public Service Commission shall be consulted-- (i)
18. (ii)
19. (iii)on all cases of appointments-- (a)on promotion to a gazetted post from a non-Gazetted post; (b)
20. (c)on promotion to junior gazetted Class I from a lower grade; (d)
21. (e)on original appointment to any gazetted rank; and (f)
22. Provided that for temporary appointment for a period not exceeding six months, consultation with the Public Service Commission will not be necessary."
23. The cases of all the contesting civil servants were covered by clause (iii). It is to be noticed that the word `appointment' has been employed to denote original (direct) appointment as well as for promotion. This leads to the result that the phrase `temporary appointment' used in the proviso covers both the categories under reference. Thus there are two distinct categories; one category is `appointment' and the other is `temporary appointment'. Under rule 24 of the K.C.S. Rules seniority has to commence from `first appointment' and not first `temporary appointment'. It follows that period spent on `temporary appointment' is not to be counted.
24. The Service Tribunal has observed that Mirza Muhammad Akram, respondent No.4, was promoted as Deputy Director on 25th July 1986 but the appellant Ghulam Mustafa Qureshi did not challenge that promotion although he himself had been confirmed in 1983 as Assistant Director on the recommendation of the Public Service Commission. This fact has been taken in support of the claim of Mirza Muhammad Akram's seniority. We do not see any weight in these observations. The question involved in the present case is of seniority as Assistant Director and must not be intermingled with rights of promotion with which this case has no concern. Promotion does not go by seniority alone and the fact that the appellant did not challenge the promotion of Mirza Muhammad Akram may legally stop him from challenging the senior position held by Mirza Muhammad Akram but it cannot by itself adversely affect his claim for seniority in BPS-17 if he can establish it.
25. There are quite a few judgments of the Supreme Court of Pakistan and Inayat Ullah Chaudhry's case is the leading judgment of this Court in which it has been held that seniority cannot be claimed from the date of ad hoc appointment which term is synonymous with the term `temporary appointment' as seen above. A large number of judgments from Supreme Court of Pakistan have been referred in the aforesaid judgment.
26. The foregoing discussion shows that the Service Tribunal fell in error in dismissing the appeal. As we have seen, the period spent by the contesting civil servants on ad hoc or temporary appointments could not be, in light of the applicable law, counted towards seniority. Therefore, the appellant was senior to respondents Nos.4 to 10 in posts carrying BPS-17 and we order accordingly.
27. The appeal thus succeeds in these terms.