SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN)---Mr. Ghulam Mastafa Qureshi is at present posted as Assistant Director, Local Government at Muzaffarabad. He has filed the above-noted service appeal against the publication of final seniority list of the Department of Local Government under No. SLG/1851-96, dated 14-5-1991. Besides Azad Government through its Chief Secretary, Secretary, Local Government and Director, Local Government, the appellant has impleaded Mirza Muhammad Akram, Project Manager, Syed Zafar Ahmad Shah, Assistant Director, Local Government /Health Education, Mirza Fazal-ur-Rehman, Assistant Director, Local Government- cum-Deputy Election Commissioner Local Bodies, Raja Zafar Ali Khan, Project Manager, Local Government, Syed Ali Shah Bukhari, Project Manager/Assistant Director, Planning, Sajawal Khan, Project Manager Tararkhal, District Poonch and Syed Muhammad Anwar Shah, Project Manager/Assistant Director, Local Government, Muzaffarabad as respondents for seeking his relief against them.
2. In the memo. Of his appeal, it is submitted by the appellant that his academic qualifications being MA. In Economics, he was initially appointed as Assistant Director, Local Government vide Government Order No. 13874--81/75, dated 27-7-1975 a copy of which is placed on the file as Annexure `A'. On the recommendations of Public Service Commission, the appointment of the appellant was confirmed and regularised by the President of the And State of Jammu and Kashmir vide Order No. Admin/8597-606/80, dated 27-5-1980 a copy of which is placed on the file as Annexure `B'. The appellant has been doing his job satisfactorily and there being no complaint against him, he was decidedly seniormost officer of the Department of Local Government with 17 years unimpeachable and continuous service at his credit. Unfortunately the respondents Nos.4 and 5 without going through the process of selection by competent Authority were promoted to the posts of Project Manager and Assistant Director, Local Government respectively vide Government Order No. Admin./2441-45/74, dated 6-2-1974 a copy of which is placed on the file as Annexure `C'. The respondent No. 6 was also promoted on ad hoc basis and similarity respondents Nos. 7, 8, 9 and 10 were also promoted on ad hoc basis. The services of the respondents Nos.4 and 6 to 9 were confirmed by the respondent Government on the recommendations of the Public Service Commission vide order dated 16-5-1983, a copy of which is placed on the file as Annexure `D'. But the respondents Nos 5 and 10 were not even confirmed by the Public Service Commission till the filing of the present appeal. Later on, the respondent No. 3 maliciously and with ulterior motives in flagrant disregard of law and rules prepared a tentative seniority list on 28-10-1990 wherein the appellant was placed and shown at serial No. 11 of the said list, which is placed on the file as Annexure `E'. The appellant filed his objections against the entries of the aforesaid seniority list before respondent No. 3 as Annexure `F and after considering the objections of the appellant he was placed at serial No. 8 by the respondent No. 3 in the impugned seniority list whereas under rule of procedure he must have been placed at serial No. 1 of the aforesaid seniority list. Feeling himself aggrieved, the appellant brought an appeal before next higher, Authority but his appeal was not decided within the given time of 90 days and hence this appeal. The appellant has invoked the jurisdiction of this Tribunal on the following grounds for setting aside the impugned seniority list:--
(a) that the appointment of the appellant was confirmed vide order dated 27-5-1980 after he had successfully passed the prescribed test and interview held by the Public Service Commission whereas the services of the respondents Nos.4 and 6 to 9 were confirmed at a belated stage on 16- 5-1983. Hence the appellant was senior to respondents Nos.4 and 6 to 9 for having entered in the regular service of the Department much earlier to them;
(b) that the ad hoc promotions of respondents Nos. 5 and 10 were not approved by the Public Service Commission nor confirmed as yet but in the impugned seniority list their names were placed against serial Nos. 2 and 7 respectively while the name of the appellant was placed at serial No. 8. Hence the impugned seniority list is revisable for being against the statutory provisions of law and rules of procedure;
(c) that the temporary ad hoc appointments in a regular Department create no right for seniority, their seniority is ordinarily to be determined from the date their appointments are regularised.
Hence the entries in the seniority list are not maintainable in law;
(d) that an ad hoc appointee is entitled to get position in the seniority list w.e.f. The date of confirmation order and the date of his earlier ad hoc appointment shall not be considered to be the determining factor of his seniority and nobody on earth would allow him a retrospective date of confirmation from the date of his first entry in the service;
(f) that under the provisions of Azad Jammu and Kashmir Civil Servants Act, 1976 and Appointment and Conditions of Service Rules, 1977 it is postulated that an ad hoc appointment shall not itself confer any right of service on the holder of such post unless the services of its holder are regularised in accordance with the rules of procedure. Hence the impugned seniority list is revisable because of being patently illegal and not maintainable;
(g) that the objections against the tentative seniority list submitted by the appellant have been decided by the Director, Local Government himself whereas the same should have-been decided by the Secretary, Local Government (respondent No. 2). Hence the judgment given by the Director of the Local Government is violative of the principles of the natural justice and fairplay.
3. By a short order of this Tribunal dated 20-10-1991 the above-noted service appeal was admitted for regular hearing in this Tribunal and the respondents were asked to submit their objections if any as to the maintainability of this appeal. On behalf of respondents Nos. 1 to 3 it is submitted before this Tribunal that the impugned seniority list has been prepared and issued in accordance with the correct rules of procedure. The inter se seniority among the contesting parties has been determined after considering the dates of promotion granted to the respondents and the seniority of a promotee is ordinarily determined from the date of his promotion and not from the date his confirmation to the post held by him. In the Promotion Order No. 10, it is clearly mentioned that on the approval of Selection Board the order of appointment was issued on 27-7-1975. But the respondent No. 10 was dismissed from service after he had earned his promotion in the Department. It was on the decision taken by the Service Tribunal as well as by the Hon'ble Supreme Court that he was reinstated in the service and his regular service was considered for seniority. It is true that Azad Jammu and Kashmir Civil Servants Act, 1976 and Appointment and Conditions of Service Rules, 1977 confer no right of service in case of an ad hoc appointee. But the respondents have got their position in the seniority list because of their permanent service in the Department and not otherwise. It is incorrect that seniority of a civil servant is to be fixed in view of academic qualifications. In fact it is fixed either on the basis of date of his appointment or date of his confirmation. It is also incorrect that the appellant was not given an opportunity of personal hearing by the Director, Local Government who was then also acting as Secretary of the Department. Hence the appeal is not maintainable and meriting dismissal. Similar objections were taken by the respondents Nos.4 to 10 and apart from that they also submitted the following preliminary objections:---
(i) that the appeal is barred by limitation and is liable to be dismissed;
(ii) that the review petition of the appellant before the respondent Government was not maintainable for being barred by limitation and jurisdiction;
(iii) that this Tribunal is not clothed with the jurisdiction to allow reliefs as are enumerated in the prayer clause of the appeal.
4. We have very carefully examined the contents of the appeal as well as the orders that were made by the respondent Government from time to time for determining the inter se seniority among the contesting parties. First of all we take the preliminary objections as were raised by the respondents in the written statement placed on the file. In the instant case, the impugned seniority list was issued by the respondent Government on 14-5-1991. The appellant brought a review petition before the Prime Minister of the Azad Government of the State of Jammu and Kashmir on 12-6-1991 and he was required to bring his appeal at this forum within 120 days w.e.f. 12th of June, 1991 and there being no decision of the respondent Government with regard to the review petition, the appellant filed his appeal at this forum on 7th of October, 1991 which means that he filed his appeal even two days before after the period of limitation provided was to run short against him. In the circumstances, the appeal is held to be quite within time. Similarly the question of jurisdiction is not involved to get favourable answer for the respondents because after having filed review petition and there being no decision of the respondent Government on that petition, -the appellant was quite competent to bring his appeal at this forum within a period of 120 days w.e.f. The date the appellant had brought his review petition before the respondent Government. Hence the review petition before the Prime Minister and an appeal at this forum are both competent and the objections are overruled. It is also incorrect that this forum is not clothed with the jurisdiction to hear this appeal.
5. It is stated at the Bar by the learned counsel of the appellant that the appellant joined the service of Local Government Department as Assistant Director on 27-7-1975 in National Pay Scale No. 17 and that he was confirmed against that post on 27-5-1980 and that because of his earlier confirmation against his post in National Pay Scale No. 17 among the ranks of Assistant Directors, Local Government he had attained the senior position as compared to the respondents. As against the appellant, the respondents Nos.4, 6 to 9 were confirmed against their posts by the Public Service Commission in National Pay Scale No. 17 on 16-5-1983 while respondents Nos. 5 and 10 were not approved by the Commission for regularisation of their service as yet. The learned counsel for the appellant has referred subsection (2) of section 7 of And Jammu and Kashmir Civil Servants Act and Rule 8 of Azad Jammu and Kashmir Appointment and Conditions of Service Rules, 1977 and has argued that since the inter se seniority of the Officers of the Local Government is to be determined w.e.f. The date of their regular appointment in the Department, therefore, the entries of the impugned seniority list in regard to appellant may be set aside and the appellant may be declared to be senior among all the officers in National Pay Scale No. 17. In this behalf he relies upon 1980 PLC (C.S.T.) 400,1974 PLC 5,1990 PLC (C.S.) 702,1983 SCM R 5 and 9,1980 PLC (C.S.) 548, 1979 PLC (C.S.T.)
78. In his reply arguments, Raja Muhammad Hanif Khan, Advocate submitted that in the instant case the rule of seniority provided in the Azad Jammu and Kashmir Appointment and Conditions of Service Rules, 1977 were not applicable. According to the learned counsel, the contesting parties appellant as well as respondents Nos.4 to 10 had entered in service before the enactment of Azad Jammu and Kashmir Civil Servants Act, 1976 and as such the rule of seniority in their case shall be applicable as was provided by the K.S.R. At the relevant time of their entry in service and promotion. The learned counsel has referred Rule 24 of the K.S.R., Vol. II and has contended that the inter se seniority of the contesting parties shall have to be determined w.e.f the date of their entry in service and not from the date of their confirmation on the posts held by them in National Pay Scale No. 17. 18 support of his contention the learned counsel relies upon 1992 PLC (C.S.T.) 1301 para. `G' at page 1314 to 1315, para. `H' and `I' and 1989 PLC (C.S.T) page 561, para. 16.
Apart from that the respondents were promoted in Pay Scales Nos. 18 and 19 and as such their seniority in the previous grade was well-established although no regular order about their confirmation was made earlier by the respondent-Government. According to the learned counsel for the respondents, the respondents were decidedly senior to the appellant because of their earlier date of entry in joining the service and subsequent promotions in National Pay Scales Nos. 18 and 19.
6. We have given our careful consideration to the arguments of the learned counsel for the parties and we reply their arguments in the paragraphs hereinafter mentioned in this judgment. In order to riggle out the problem as to which of the laws and rules are applicable in the present case, it seems essential that the relevant section 7 of Azad Jammu and Kashmir Civil Servants AW 1976 as well as Rule 8 of Azad Jammu and Kashmir Appointment and Conditions of Service Rules, 1977 and Rule 24 as contained in the K-S.R. May be reproduced below for guidance:-- "7. Seniority---(i) 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: Provided that civil servants who are selected for promotion to the higher grade in one batch shall, on their promotion to the higher grade, retain their inter se seniority as in the lower grade.
(3) For proper administration of a service, cadre of 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.
(5) Notwithstanding anything contained in this Act or in any other law for the time being in force, a medical practitioner who, following his release from service with the Armed Forces after having rendered satisfactory service under the compulsory service in the Armed Force Ordinance, 1971 (XXXI of 1971) of Pakistan for a period of not less than two years, enters employment of the Government shall be entitled to count towards his seniority in such employment the period of service rendered by him under the aforesaid Ordinance and to his pay in such employment being fixed after giving him credit for the service so rendered.
Rule 8 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977: "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 section 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 is the same, the older if not junior to the younger in the next below grade, shall rank senior to the younger person..
Explanation I ................................................
Explanation II ................................................
Explanation III ................................................
Rule 24 of K.S.R.
(a) The seniority of a person who is subject to those 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.
Note.-- (1) ...............................................
Note.-- (2)...............................................
(b) Whereas the date by which seniority is determined under sub-rule (a) is the same in the case of two or more members of a service, class, category or grade, their seniority inter se shall be determined by the order of preference laid down by the appointing Authority in their case. If no such order of preference is laid down, or in case of doubt, seniority shall be determined by the appointing authority.
There is no denying the fact that rule of seniority as contained in the Azad Jammu and Kashmir Civil Servants Act, 1976 and Azad Jammu and Kashmir Appointment and Conditions of Service Rules, 1977 are the most appropriate laws which are at present available on the statute book of law.
But the most important point is that from what date, the aforesaid law and rule referred to above shall be applicable so for the present case before this Tribunal is concerned. To answer this question it shall be required to go through the case-law as has been presented to this Tribunal on behalf of the learned counsel of each party. The case-law cited by the learned counsel for the appellant has no bearing so far the facts of the present case are concerned. However, we have found some of the authoritative decisions of the law Courts to, be more relevant on .The subject referred to by the learned counsel for the respondents. In Writ Petition No. 20 of 1978, decided on 10th of March, 1992 in case entitled Kh. Ghulam Ahmad v. Azad Government of the State of Jammu and Kashmir, we find that the law prevailing at the relevant time of entry into service was made applicable in that most complicated and disputed type of removal from the post of Registrar, High Court. In the aforesaid case, an order of reversion made by the Chief Executive was challenged before the Hon'ble High Court of Azad Jammu and Kashmir and while disposing of the above writ petition, the learned Judges of the High Court held-- "it becomes clear that at the time when the petitioner was promoted and appointed as Registrar, High Court or when the impugned order whereby he was reverted to the post of Deputy Registrar was passed the Azad Jammu and Kashmir Civil Servants Act, 1976 was not applicable to the case of the petitioner. At that time either K.S.R. Was applicable ox the High Court Establishment (Appointment and Conditions of Service)
Rules, 1975 were applicable. Under K.S.R. No order of reversion could have been passed without a show-cause notice and even under Judicial Service Rules of 1975, it was a legal requirement of law to issue a show-cause notice to the petitioner and provide him an opportunity of being heard in support of his objections before passing any adverse order against the interest of the petitioner"
7. A similar view was taken by Mr. Basharat Ahmad Sheikh learned Judge of Hon'ble Supreme Court in Service Appeals Nos. 22 to 24 of 1988 decided on 10th of May, 1989 in case Raja Muhammad Ashraf Kayani v. Azad Government of the State of Jammu and Kashmir and 4 others. The relevant para. 16 of the judgment is reproduced below for guidance.
"16 The fundamental question is as to the law which is applicable for determination of seniority of the four contesting judicial officers. Raja Muhammad Hanif Khan, learned counsel for Mr. Ashraf Kayani and Mr. Abdul Rashid Abbasi, the learned counsel for Mirza Zaid Ullah and Raja Niaz Ahmad, were of the opinion that subsection (2) of section 30 of the Azad Jammu and Kashmir Courts and Laws Code 41 Act, 1949, commonly known as the Laws Code, and rule 24 of the Kashmiri Civil Service Rules (which will be referred to hereinafter as the K.C.S. Rules) were both applicable to judicial officers. On the other hand the view of Sardar Rafique Mahmood Khan, the learned counsel for Mr. Iftikhar Hussain Butt, was that section 30(2) of the Laws Code was the only provision, which was applicable. Both these provisions are no longer on the statute book but continue to apply to old and pending cases. It will be useful to reproduce both the provisions though not in existence."
8. Now it is almost settled that the inter se seniority of the Officers of the Local Government shall have to be determined in accordance with the rule of seniority provided in the K.S.R., Vol. II although it does not exist on the statute book of law. It is so because the appointment of the Officers had taken place much earlier to the enactment of the Azad Jammu and Kashmir Civil Servants Act and the Rules of seniority made thereunder. It is, no doubt, that the appellant was taken in service on 27-7-1975 as Assistant Director, Planning in the Local Government and that his confirmation to that post was ordered earlier to the confirmation order of the respondents. But according to the Rule of K.S.R. This objection carries no weight because the inter se seniority among the officers of the Local Government was to he determined w.e.f. The date of their entry into service, notwithstanding the fact that the respondents were confirmed long after the confirmation order of the appellant. It shall also be noted here that the higher academic qualifications of the appellant will not matter much to determine the inter se seniority in the ranks of Assistant Directors of the Local Government. There is another very important point, which goes in favour of respondent No. 4 and the same is that he was promoted and posted as Deputy Director, Local Government w.e.f. 25-7-1986 and this order was not challenged by the appellant despite the fact that he was confirmed to his post of Assistant Director on 16-5-1983. If by any rule of procedure the appellant was claiming to be senior to him then he must not have missed challenging that order of promotion at the proper time. There is no quarrel about it that the services of Syed Ali Shah Bukhari and Syed Muhammad Anwar Shah, Assistant Directors are not confirmed as yet because of no approval by the Public. Service Commission in their case. But since their seniority is to take effect from the date of entry into service, they have been rightly placed on the seniority list and hence the respondents even if not confirmed after having put in 16 years service than the fault would lie with the Administrative Department and not with the particular officer. It is very difficult to ignore the services of an Officer who has already put in about half of the service in reaching the age of his retirement on pension.
9. It is further argued on behalf of the appellant that the Director, Local Government was not competent to decide the objections on seniority list submitted to him by the appellant. According to the learned counsel for the appellant, the Secretary of the Department was alone competent to dispose of such objections. It shall be noted here that the Director, Local Government only submitted his comments to the Secretary of the Department and the seniority list was issued after the Secretary, Local Government had heard the parties. As a matter of fact the Government alone was competent to attend the objections of the appellant on the tentative seniority list, but the respondents cannot be penalised for that error because it was hardly necessary for the appellant to submit his objections to the Director, Local Government if the later was not competent to hear the objections. The appellant could submit his objections direct to the Government if he had the apprehension of injustice at the hands of Director, Local Government and Secretary, Local Government. Since the objections taken by the appellant on the tentative seniority list have been properly attended at this forum, the objection is devoid of force and the same is hereby repelled.
10. For the above reasons, the appeal is dismissed and no order is given to the costs.