RAJA BASHIR AHMAD KHAN (CHAIRMAN).--This is an appeal against Notification No. S&GAD/A- 22/(31)/V092, dated 5-12-1992. The appellant has prayed for setting aside this Notification to the extent of Sheikh Attaullah respondent No. 2.
2. Briefly stated the facts are that respondent No. 2, on the recommendations of Selection Board was promoted in Grade-18 and appointed as Apple Coordinator in Hill Farming Technical Development Project Muzaffarabad. Notification No. Admin/S.O.-III/4202-14/82, dated 28-3-1982 was issued to that effect. The appellant preferred an appeal before the Service Tribunal against the said Notification. The Service Tribunal by its judgment dated 21-5-1989 dismissed the appeal.
Appellant challenged the judgment of Service Tribunal by way of appeal in the Supreme Court of Azad Jammu and Kashmir. The Supreme Court was pleased to accept the appeal and directed the Selection Board to reconsider the case of promotion of contesting parties. The Selection Board in obedience to the directions of Supreme Court reconsidered the case and submitted its recommendations for promotion and appointment of Sheikh Attaullah, Ch. Muhammad Rafique, Ch. Muhammad Akram, Bashir Ahmad Naz and Mian Riaz Ahmad (appellant) against the posts of Deputy Directors B-18 and other equivalent posts. The Government confirmed the recommendations of the Selection Board and the impugned Notification was issued.
3. The case of the appellant in nutshell is that the Selection Board and the respondent Government did not follow the judgment of Supreme Court in its letter and spirit and while confirming the recommendations dated 22-9-1980 of the Selection Board decided the matter afresh in violation of the decision of Supreme Court. The Supreme Court directed to reconsider the case of contesting parties of the previous litigants and the Selection Board was to reconsider the case of appellant and respondent No. 2 on the basis of facts and law prevalent when the case came up before the Selection Board in the year 1980.
4. The respondents through their written objections have denied the allegations contained in memorandum of appeal.
5. We have heard the learned counsel for the parties and have gone through the record.
6. Learned counsel for the appellant has taken us through the judgment of Supreme Court and has argued that the Supreme Court was pleased to set aside the Notification dated 28-3-1982 and directed the Selection Board to reconsider the case of promotion of the contesting parties in the light of observations made above. The contesting parties before the Service Tribunal at that time and before Supreme Court were appellant and respondent No. 2. The Selection Board was under an obligation to reconsider only the case of contesting parties in respect of the posts of Apple Coordinator on the basis of facts and law prevalent when the case came into consideration in the year 1980. The Selection Board and later on respondent No. 1 although stated that the case was considered in the light of the judgment of the Supreme Court not only confirmed the proceedings of the meeting dated 22-9-1980 of the Selection Board but also proceeded to consider the case of the appellant alongwith Sheikh Attaullah respondent No. 2 and four abovementioned persons. The learned counsel for respondents have argued that the Supreme Court did not fix any date for reconsideration of the case and the respondents, in obedience of the judgment of the Supreme Court reconsidered the matter and submitted its recommendations to the Government for promotion and appointments of appellant and other Officers against the posts of Apple Coordinator B-18, (sic).
7. In the working paper the Department requested for recommendations of the' case of, promotion of appellant and respondent No. 2 against the post of Apple Coordinator. The working paper submitted to the Selection Board by the Department of Agriculture is reproduced because it sets out all the relevant facts of the case:-- "Consequently we accept the appeal, set aside the impugned order and direct the Selection Board to reconsider the case of promotion of the contesting parties in the light of observations made above."
"This promotion 'to a higher grade is always in relation to a post and there is no conception of general promotion irrespective of the existence of a relevant post."
"So far as the argument about the subsequent abolition of the post of Apple Coordinator is concerned that has nothing do with the dispute which arose out of the order passed on 28-1-1982.
The law will take care of the subsequent event:-- Name of the post with grade.Minimum qualification for appointment by:-- Initial Recr- Promotion uitment Or transferMethodof recruitment Horticulturist/ Project Coordinator(i) M.Sc. in(i) As per Col. relevant18 subject.(i) 25% by initial recruitment as per Col. 6.
Apple/Agronomist/ Deputy Director Agri. Veg.(ii) 5 years(ii)
Graduate(ii)75% by promotion on the basis of selection on merit-cum-seniority andfitnessfrom amongst (B-18). experienceIn relevant subject.Officers in B-17+ 150 special payin the departmentwith 5 years serviceas such.
S.No.Nomenclature of the post.Minimum qualification prescribed for appointment by initial requirementMethod of recruitment: 1 2 3 4 1.Horticulture officer(i) (a) M.Sc. Agriculture with Horticulture as one of the subject from a recognised University(preference to he given to the persons holding post graduate degree in Horticulture).(i) 2.5% by initial recruitment and (b)B.Sc. Agriculture(Honours) Agri. Honours in Horticulture from arecognised University; or(ii) 75% by promotionfrom among members of Azad KashmirAgri.
Service (N.S.P.
17) holding posts of Assistant withHorticulture Officer/Fruit Development officer with at least fiveyears experience in the line and a total serviceofeight yearsinthe Department.
(c) M.Sc. Agri. From a recognised University with a merit' certificate or diploma in Horticulture awarded after at least one year, Academic study by a recognised University; and
(ii) Three years experience in Horticulture.
(c) M.Sc. Agri. From a recognised University with a merit' certificate or diploma in Horticulture awarded after at least one year, Academic study by a recognised University; and
(ii) Three years experience in Horticulture.
The Department later on submitted cases of promotion of certain other officer to the Selection Board. The Selection Board deliberated over the Working Paper reproduced above and the Working Paper in respect of other Officers in their meetings dated 14, 15, 17 and 21st July, 1986. Finally the cases were considered in the meeting of Selection Board held on 1-9-1992 and the following recommendations of the Selection Board were communicated to Secretary Agriculture through Letter No. S.B-2(6)2201/92, dated 1-10-1992:-
8. It is pertinent to note that the Selection Board not only failed to follow the directions of the Supreme Court but also tagged the case of the appellant and respondent No. 2 with other Officers unnecessarily. It is again worthy to note that the Selection Board for the reasons, best known to it confirmed the decision of the Selection Board dated 22-9-1980 which was disputed before the Supreme Court and which was found by the Supreme Court as patently incorrect-This aspect of the case was dealt with by the Supreme Court and Supreme Court was pleased to observe as under:-- "So far as the reference in the impugned order regarding the approval of the respondent No. 2 by the Selection Board is concerned, that is patently found to be incorrect because it is not even the case of the respondent No. 2 that any panel was sent to the Selection Board when the occasion arose for filling in the vacancy of the Apple Coordinator. Thus, the approval of the respondent No. 2 by the Selection Board was for the post of Agronomist and not of Apple Coordinator. However, respondent No. 2 was not appointed as Agronomist in pursuance of the recommendations of the Selection Board, as has already been pointed out. It appears that some other persons who had also been approved by the Selection Board was appointed in place of respondent and his appointment was challenged by respondent No. 2 by way of appeal the said appeal has been referred to in the impugned order."
9. The judgment of the Supreme Court is clear on the point that the case of the appellant was not considered by the Selection Board and proceedings of Selection Board were declared as incorrect.
The Selection Board instead of following the dictum of Supreme Court proceeded to confirm the decision of the Selection Board taken in the meeting of 22-9-1980- At the moment it is not fair for us to comment on the conduct of the Board because the then Chairman and the Members of Selection Board are not before us for the purpose of this appeal. We are, however, constrained to note that the Selection Board was bound to follow the judgment of Supreme Court and act accordingly and the Board has miserably failed to honour the decision of Supreme Court.
10. The counsel for the parties have presented the cases of the patties on the merits and have also tried to cite relevant rules of the Agriculture Department issued in the years 1976 and 1984. The appellant has prayed that the impugned order may be modified and appellant be promoted with effect from 28-3-1982. We can only accept the prayer of appellant if we feel proper to discuss the comparative merits of the contesting parties. We are of the view that the Selection Board did not reconsider the case of the contesting parties in the light of judgment of the Supreme Court for 'the posts of Apple Coordinators and we deem it proper to direct the Selection Board to reconsider the matter afresh as directed by the Supreme Court only in respect of appellant and respondent No. 2 for the post of Apple Coordinator in Grade B-18.
11. In view of the above the order under appeal to the extent of respondent No. 2 is liable to be set aside and we order accordingly. The result is that the impugned order to the extent of respondent No. 2 is set aside, the Selection Board is directed to reconsider the case of promotion of appellant and respondent No. 2 in light of the directions of the Supreme Court and in accordance with the working paper submitted by the Department for the post of Apple Coordinator.