SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN).---The above-noted two appeals are directed against the Government Order No.SM/1805-15/90, dated 8-4-1990 by which on appeal by the respondents Muhammad Nazir and Sardar Khalil Ahmad Khan before the Prime Minister of the Azad Government, the Order of Secretary, Revenue No.560-62--70/SM/89, dated 28-8-1990 was cancelled. In his appeal, the appellant Muhammad Mushtaq Khan has impleaded Azad Government of the State of Jammu and Kashmir through Secretary, Revenue Department and Sardar Khalil Ahmad Khan, Naib-Tehsildar, Pallandri as respondents whereas the other appellant Muhammad Rafique Reader has impleaded Azad Government of the State of Jammu and Kashmir through its Chief Secretary, Commissioner, Revenue Department, Muhammad Nazir Khan, Naib-- Tehsildar Hajira and Sardar Khalil Ahmad Khan, Naib-Tehsildar, Pallandri as respondents. Since both the appeals are directed against one and the same order of the respondent-Government, we propose to decide them by this single judgment and a copy of this judgment shall be placed on each file of appeal.
2. The relevant facts giving rise to these appeals are that the appellants were in the service of the Revenue Department and among the members of Ministerial staff, they held senior posts with higher Scale of Pay No.11 while the respondents held junior posts in Pay Scale No. 5 in the offices other than District offices. But they were deprived of their legitimate right of promotion and instead of them, the respondents Muhammad Nazir and Sardar Khalil Ahmad Khan were promoted to the posts of Naib-Tehsildars and were placed in B.P.S. No-14. It is further claimed by the appellants that besides being senior to respondents they were better qualified than the respondents and fully deserved the promotion to the next higher post of Naib-Tehsildar. Feeling aggrieved, the appellants brought an appeal before Secretary, Revenue Department and by his order dated 12-5-1987, the Secretary, Revenue vacated the promotion order of the respondents Nos.3 and 4 and suggested to the Commissioner, Revenue Department that the number of vacancies of Naib--Tehsildars should firstly be assessed against 12-1/2% quota reserved for subordinate service and those vacancies be filled up from among the Members of the subordinate service of Revenue Department after considering their seniority, efficiency and other qualifications alongwith the appellants. This order of Secretary, Revenue annoyed the respondents and they brought a second appeal before the Prime Minister of the Azad Government. Under the impugned order, the Prime Minister set aside the order of Revenue Secretary and restored the promotion order of the respondents. The appellants then invoked the jurisdiction of this Tribunal under section 4 of the Service Tribunals Act. It is prayed by them that the impugned order of promotion of the respondents made by Commissioner, Revenue and upheld by the Prime Minister may be set aside and they may be promoted with all the service benefits w.e.f the date of promotion of the respondents.
3. The above-noted two appeals were admitted for regular hearing by this Tribunal. On behalf of the respondents, it was submitted to this Tribunal that the respondents had received settlement training and were fully qualified for being promoted to the posts of Naib-Tehsildar. The Government held supreme powers of making recruitment under the service laws and hence the appellants were not entitled to seek any relief at this forum.
4. We have considered the arguments as were addressed by the learned counsel for each party and have also examined the impugned orders as well as the relevant record placed on the file.
Under the Azad Jammu and Kashmir Civil Servants Appeals Rules, 1991, no second appeal is provided against the order of a Departmental Authority. It is argued on behalf of the appellants that since the Prime Minister held no powers to hear an appeal against the order of a Departmental Appellate Authority, he was not competent to make the impugned order. According to the learned counsel, the Prime Minister had no jurisdiction to make the order and as such the impugned order made by him was void ab initio for being without jurisdiction. It is true that an appeal was not competent before the Prime Minister of the Azad Government against the appellate order of a Departmental Authority but we find that a remedy in the form of a representation was then available to the appellants before the next higher authority (Prime Minister) under the provisions of Rule 8 of sub-rule (2) of Azad Jammu and Kashmir Civil Servants Appeal Rules, 1982. Therefore, the appeal brought before the Prime Minister can be safely treated as a representation and for that reason the impugned order which is made by the Prime Minister is not an ab initio void order. In our opinion, the Prune Minister held the jurisdiction to make such an order on the representation of the respondents. Therefore, the objection that the Prime Minister held no jurisdiction to make the impugned order is not tenable.
5. It is next argued on behalf of the respondents that the appeals are not maintainable for being time-barred.. The order was made by the Prime Minister on 8-4-1990 and an appeal by Muhammad Mushtaq Khan appellant was brought before this Tribunal against that order on 8-5- 1990. This appeal seems to have been filed with the delay of one day but we allow this appeal to be within time because the appellant has spent one day in collection of copies of the impugned orders. In regard to second appeal, the appellant Muhammad Rafique claims it that the impugned order of the Prime Minister was not communicated to him and that he had got the knowledge of that order through his own efforts on 23-6-1990 and, therefore, his appeal may be accepted to be within time w.e.f. The date of his knowledge of the impugned order. He has also applied for condonation of period of delay because the impugned order was not conveyed to him. In support of his application, he has filed his affidavit. At this moment a reference to the impugned order will be quite necessary. The order shows that its copy was not directly issued on the name of the appellant for his information. While distributing copies, a copy has been issued to the Superintendent of Government Printing Press, Muzaffarbad at Serial No.7 for publication and the information of the appellant and at the same time under Serial No.9 it is written that a copy of the order should go to the concerned employees who are affected by the impugned order. So, we cannot be very sure of it that a copy of the impugned order was actually delivered to the appellant for his information before the date of his knowledge of that order viz. 23-6-1990. It may be further noted here that the impugned order does not appear to have been made after hearing the parties concerned and as such the communication of the impugned order to the appellant becomes more doubtful. For the aforesaid reasons, we accept the contention of the appellant that he had no knowledge of the impugned order before 23-6-1990 when he got the knowledge of it through his own sources. We, therefore, allow the period of delay in this appeal also to be condoned in favour of Muhammad Rafique appellant; Hence the objection that the appeals are time-barred is overruled and set aside.
6. Now we take up the merits of the case pertaining to the promotion of the respondent in reference to the context of the present appeals. In their appeals, the appellants claim their promotion to the post of Naib-Tehsildar on the basis of their seniority and better academic qualifications as compared to the respondents. The recruitment to the service of a Naib-Tehsildar and Tehsildar is regulated by the rules called Azad Jammu and Kashmir Tehsildari and Naib- Tehsildari Rules, 1980 (hereinafter to be referred as Azad Jammu and Kashmir Tehsildari and Naib- Tehsildari Rules, 1980). Under Rule 4 of the said Rules, Commissioner is the Appointing Authority in case of all the appointments to the posts of Naib-Tehsildars and the method of their recruitment in service is given in Rule 5 of the said Rules. It may be necessary to reproduce the aforesaid Rule below for its proper appreciation and guidance:-- 5--- Method of recruitment.---Recruitment to the service shall be made by the following methods:-- (i)In the case of Naib-Tehsildars (a) fifty per cent. Of the vacancies shall be filled by initial recruitment from among the candidates on merit on basis of quota system fixed by the Government;
(b) the remaining vacancies shall be filled by selection on merit from the subordinate service preference being- given to persons with settlement experience
(ii) in the case of Tehsildars (a) fifty per cent. Of the vacancies shall be filled by initial recruitment on the basis of quota system fixed by the Government; and
(b) the remaining vacancies shall be filled by selection on merit with particular reference to fitness for higher responsibilities from among members of subordinate service.
(iii) At least three-fourth vacancies to be filled otherwise than by initial recruitment shall be filled--
(a) in the case of Naib-Tehsildar from Qanoongos;
(b) in the cased of Tehsildars from Naib-Teshsadars.
The above rule of procedure makes it very clear that 50% of the vacancies in the Offices of Naib- Tehsildars shall be filled up by initial recruitment from among the candidates on merits on the basis of quota system while the remaining 50% quota of vacancies was reserved to be filled up by selection on merits from among the subordinate service, preference being to persons with settlement experience out of this quota. Three-fourth of the vacancies are to be filled up from among Qanoongos and the rest of the ministerial employees who have worked for at least 5 years in the Revenue establishment of a District and are at least Matriculate: It is well-established from the personal record of the respondents that at the relevant time of their promotion, they were Matriculate and had also received Settlement training in the Settlement Department. It may be noted here that both the respondents Nos.3 and 4 were fulfilling the requisite qualifications for being promoted to the posts of Naib-Tehsildars and their promotion was ordered quite in accordance with the rules of procedure provided by Tehsildari and Naib--Tehsildari Rules, 1980.
According to the aforesaid rules, the post of Naib--Tehsildars is to be filled up by selection on merits and not otherwise. The appellants base their claim of promotion on the basis of their seniority. Under section 8 of Azad Jammu and Kashmir Civil Servants Act, 1976, it is provided that a civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a post for the time being reserved under the rules for departmental promotion in any higher grade of the service or cadre to which he belongs. Such post may either be a selection post or a non-selection post. In the case of the selection post selection is to be made on merit but in the case of non-selection post appointment is to be made on the basis of seniority-cum-fitness. The post of Naib-Tehsildar is undoubtedly a selection post as has been provided under Tehsildari and Naib-Tehsildari Rules, 1980 and hence the seniority of the appellants among the members of subordinate service is not much helpful for the promotion of the appellants. The basis of governing consideration in all promotions against selection posts is what may be shortly described as merit or suitability and the seniority is in substance one of the elements in the assessment of merits. Ordinarily it is for the State or the promoting authority to determine such suitability among the members of subordinate service after an assessm ent of all relevant considerations such as seniority, competence, rectitude and antecedent official record none of which is less important than the others for preservation of purity and efficiency in public service. It is very important to note here that Settlement training is the essential qualification for the post of a Naib---Tehsildar and the respondents having received the Settlement training were preferable to the appellants and for that reason, in our opinion, the Commissioner, Revenue Department and the Prime Minister has committed no fault to bring the respondents on the posts of Naib-Tehsildars.
7. We have critically examined the order of the Secretary, Revenue Department by which the promotion of the respondents was annulled by him. The Secretary has, no doubt, offered sufficient reasons for holding his view against the appointment of respondents as Naib-Tehsildars but we find that his view is not supported by Tehsildari and Naib-Tehsildari Rules referred to above. We, also do not contribute to this view of his that it was obligatory for the Commissioner to have firstly ascertained the number of the seats of Naib---Tehsildars in the reserve quota for the members of the subordinate service because no such objection was taken by the present appellants before him. The respondents have put in more than 5 years service as Naib-Tehsildar by now and we find much force in this argument that their appointments must not be disturbed at this belated stage unless there are found sufficient grounds to hold them misfit for the jobs.
8. For the above reasons, we find no force in these appeals and the same are hereby dismissed. No order as to the costs.