1. ' BASHARAT AHMAD SHAIKH, J.---This service appeal filed with leave of the Court relates to the Department of Animal Husbandry. Appellant, Dr. Kh. Mushtaq Ahmad, is a veterinary doctor in B-17 and was, at the relevant time Poultry Development Officer while respondent No,4, Malik Maqsood Ahmad, was Planning Officer in B-17. On 18th November, 1992, the post of Planning Officer was upgraded to B-18 and was redesignated as Deputy Director (Planning, Development and - Evaluation). In the relevant Government Order it was stated that the post will be regulated by Upgradation Rules 1984. On the next day respondent No, 4 was appointed/posted in his own pay and scale against the forementioned post. This order was unsuccessfully challenged by the appellant before the Service Tribunal.
2. ' In the appeal filed before the Service Tribunal, Dr. Kh. Mushtaq Ahmad averred that he was appointed as Veterinary Officer in B-17 on 9th of January, 1975 while Malik Maqsood Ahmad joined the department in B-17 seven years later. The appellant passed MA. Economics (with Statistics) in Second Division. He applied for appointment as Statistical Officer. However, respondent No, 4 was appointed to that post although he had passed MA. (Economics) in third Division and had not studied Statistics as a subject. Subsequently the post of Statistical Officer was redesignated as Planning Officer. In the year 1992, this post of Planning Officer B-17 was upgraded to B18 and was redesignated as Deputy Director (Planning, Development and Evaluation). The appellant challenged the appointment of respondent No, 4 as Deputy Director in his own pay and scale on the ground that he was senior to the said respondent. It was also contended that the rules relating to the newly-created post had not been framed and in the absence of departmental rules the rules applicable to that post in Punjab were to be followed on the principle of parity. In light of the rules prevalent in the Punjab the appellant claimed that he was fully qualified for promotion as Deputy Director but he had been ignored. He claimed that apart from holding degrees of D.V.M.
3. And MA.(Economics) in Second Division he had also obtained a Post-graduate Degree from Holland. He had also served in Planning and Development Department of Azad Jammu and Kashmir for 3-1/2 years. Thus he deserved to be appointed as Deputy Director on the basis of seniority in service, experience and better qualifications. He also claimed that according to the ruling of the Services and General Administration Department only the senior most officer could be appointed to the higher post in his own pay and scale.
4. ' Respondent No,4 in his written statement took the preliminary objection that the order challenged in the appeal was not a "final order" because the post has to be filled on permanent basis after recommendation of the Selection Board while respondent No,4 had only been posted/appointed in his own pay and scale. He claimed that he was appointed as Statistical Officer on the basis of recommendation of the Public Service Commission in 1992 and he duly fulfilled the qualifications required for that appointment. In the written statement of the Government it was pointed out that Dr. Kh. Mushtaq Ahmad and Malik Maqsood Ahmad belonged to different cadres of the Animal Husbandry Department and their seniority was not common. It was, therefore, pleaded that there was no question of one being senior to the other. It was also pointed out that when Malik Maqsood Ahmad was appointed as Statistical Officer appellant Dr. Kh. Mushtaq Ahmad had not yet passed his MA. Examination and was, therefore, not eligible to be considered in the test held in January 1982. The Government also pleaded that the rules for the post of Deputy Director had not been framed and in their absence the appellant had no right for appointment to the upgraded post of Deputy Director.
5. ' The Service Tribunal dismissed the appeal on the following three grounds:
(1) The appointment of respondent No, 4 as Deputy Director in his own pay and scale was in keeping with the spirit of Upgradation Rules;
(2) The appellant is not an aggrieved person as he would only challenge the appointment of respondent No, 4 when he is formally appointed by the Government after satisfying all requirements of appointment under law;
(3) The appellant is placed at No, 16 in the seniority list' of Veterinary Doctors and if any of them has to be considered it will be the senior most Doctor; thus the appellant had no locus standi.
6. ' In order to assess the validity of the reasoning adopted by the Service Tribunal about the Upgradation Rules, 1984 it will be useful to reproduce the rules; AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR SERVICE AND GENERAL ADMINISTRATION DEPARTMENT, MUZAFFARABAD Dated the 15th December, 1984.
7. ' NOTIFICATION: ' No, S&GAD/JS/1-A/1138-1238/84.---In exercise of the powers conferred by section 23 of the Azad Jammu and Kashmir Civil Servants Act, 1976, the Government is pleased to direct that the process of upgradation of posts shall be regulated by the following Rules, namely:-
(1) These Rules may be called the upgradation of Posts Rules, 1984.
(2) Upgradation of a post shall imply the abolition of the existing post and creation of any new post in the higher grade.
(3) Upgradation of a post shall not mean automatic upgradation of its incumbent.
(4) Appointment to the upgraded post shall have to be made in the manner prescribed for that post.
(5) If a post is upgraded with immediate effect the incumbent shall be left without any post in his grade until he is approved for appointment to higher grade. Therefore, while sanctioning upgradation of the existing posts, it shall be clearly provided in the sanction letter that upgradation of the post would take effect from the date the post is filled by a person in the higher grade. Until existing incumbent is formally appointed to higher grade the post and the incumbent would continue in lower grade.
8. (Sd.)
9. (Chaudhary Muhammad Latif) Joint Secretary Services.
10. ' No, S&GAD/JS 1-A/1138/84, dated the 15 December, 1994.
11. ' As the facts are, the Government abolished the post of Planning Officer held by respondent No,4 on 18th of November, 1992. The order did not specify any date from which it was to take effect. Which means that the order took immediate effect. According to rule 2 post of Planning Officer stood abolished and a new post of Deputy Director was created. This is a situation which according to rule 5 should have been avoided. Rule 5 provides that while upgrading a post it must be provided that the upgradation would take effect from the date on which a person is appointed but the Government did not follow this requirement and abolished the post with immediate effect and created a situation which should have been avoided. Thus the Tribunal was not right in observing that the appointment of respondent No, 4 was in keeping with spirit of rule 5. Spirit of rule 5 is not that a person who holds a post in lower grade should be appointed to the higher grade in his own pay and scale because on account of the reason that the post which he was holding had been abolished. According to the scheme of the service laws the abolition of post does not create any right in favour of the incumbent to be appointed or promoted, temporarily or otherwise, to the higher post. As is laid down in rule 5, in such a situation the affected person is left without a post. In our view Upgradation Rules cannot create any justification for the impugned order.
12. The Tribunal expressed the view that the appellant could only question the appointment of respondent No, 4 when he is formally appointed, but the Tribunal did not justify its conclusion by reference to any rule or principle of law that in the circumstances in which a civil servant is appointed to a higher post in his own pay scale no other civil servant can be aggrieved. In order to fulfil the requirement of an aggrieved person a petitioner does not have to show that a right in the strict juristic sense vests in him but it is enough that the applicant discloses that he had a personal interest in the performance of the legal duty, which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of the privilege or liberty or franchise. Facts of the present case show that the appellant felt aggrieved by the order by which respondent No,4 was appointed as Deputy Director in his own pay and scale. It is admitted position between the parties that rules for appointment to the post of Deputy Director (Planning, Development and Evaluation) had not vet been framed when the impugned order was issued. The Service Tribunal has held that seniority of the appellant and respondent No,4 is not common. The appellant being a Doctor falls in Technical Branch while respondent No,4 holds-a nontechnical post and belongs to the Administrative Branch. However the Service Tribunal failed to take note of the fact that the post of Deputy Director has not so far been prescribed to be a part of the Administrative Branch. Since the rules have not been framed the method of recruitment, the branch to which it would belong and qualifications necessary for occupying the post have not yet been laid down. In absence of the rules there is no question that existing Administrative Branch may be given preference over the Technical Branch. Admittedly the appellant, apart from holding a degree of D.V.M., has to his credit Master's Degree in Economics and he has also served for more than three years in the Planning & Development Department of the Government. So far as his length of service is concerned he is far senior to respondent No,4 although they belong to different branches. Malik Maqsood Ahmed is MA. Economics in 3rd Division but has been approved by the Public Service Commission. This is not for this Court to assess the respective merits of the two civil servants but in absence of the rules relating to the post of Deputy.
13. Director, there was nothing which debarred the appellant to be considered for appointment to the post of Deputy Director. However, the name of the appellant was not considered at all. In the written statement filed by the Government it has been asserted that respondent No,4 was most suitable and deserving person to the post of Deputy Director. The Government has also taken the position that the appellant and respondent belong to different branches and thus there was no question that the appellant may be senior to respondent No,4. It appears that the Government acted on the belief that the post of Deputy Director belonged to Technical Branch which is not correct. While it is open for the Government to declare that the post of Deputy Director belongs to the Technical Branch but at present there is no such statutory rule. If the Government had not acted under the belief that only the persons belonging to the Technical Branch were eligible for appointment as Deputy Director the appellant might have been found more suitable than respondent No,4. In our view the appellant is aggrieved by the impugned order because he has not been considered for the appointment under reference under a mistaken view that a person from Technical Branch could not be appointed as Deputy Director.
14. ' However, before us it has been vehemently contended by Mr. Sardar Khan, the learned Advocate- General, that it is provided in section 4 of the Service Tribunals Act that an appeal would lie to the Service Tribunal only against a final order. According to the learned Advocate-General the impugned order was not an order of promotion and it was only an ad hoc arrangement. We have looked into the impugned order. It nowhere says that the order is of temporary nature or that it provides for a stopgap arrangement. All it lays down is that Malik Maqsood Ahmed is appointed in his own pay and scale against the post of Deputy Director of Planning and Evaluation (B-18).
15. However, it was argued that since respondent No,4 was to remain in his own. Pay and scale it was a stopgap arrangement, but in the written statements not only respondent No,4 but the Government also adopted the position that the two contesting civil servants belonged to different branches and that the appellant had no right against the post of Deputy Director. It has also been averred that respondent No,4 was the most suitable and deserving person for the post of Deputy Director. In light of the pleadings it is clear that the order may not be a final order in the sense that respondent No,4 was not formally given the grade prescribed for that post, but so far as the appellant is concerned the impugned order has sealed his fate for promotion to the post of Deputy Director.
16. The view of the Government is that the appellant cannot be considered for appointment to the post in question. Two years have passed since the order under challenge was passed but no person has been "formally appointed" as Deputy Director. Even if we assume that the Government would at one stage do so, it is clear that the appellant would not be appointed because it has already been decided by the Government that he has no claim for the post. In Mubashar-ul-Haq v.
17. Azad Government 1991 PLC (C.S.) 426 this Court made the following observations which are relevant in the present case:- "It may be observed that the question whether the order appealed from was a final order or not has to be resolved in light of the circumstances of each case. The contention of the present appellant is that the respondents were not legally qualified to hold the post of Executive Engineer in view of the provisions of the Engineering Council Act. The other contention is that the reserved quota had been already filled up and, therefore, the respondents could not be appointed as Executive Engineers. If any of these two contentions as well as the claim that he is the senior most graduate engineer can be proved by the present appellant, he would be clearly found to have been adversely affected by the order. In that case it could be contended that the order by which the respondents were appointed as Executive Engineers finally decided the rights of the appellant qua the respondents."
18. ' The Service Tribunal has also observed that the appellant is entered at serial No,16 in the list of Veterinary Doctors and even if the post is required to be filled up by any officer of the technical branch the senior most officer will be considered for appointment if rules permitted. The Tribunal, therefore, reached the conclusion that for this reason also the appellant had no locus standi to file the appeal. In the absence of the rules relating to the appointment to the post of Deputy Director it cannot be said that the seniority will be the sole criteria. The case of the appellant is peculiar in nature because he also holds a degree of MA. Economics which is equal to the degree held by respondent No,4 and he has also served in the Planning and Development Department of the Government for more than three years. Thus it cannot be said that he had not locus standi.
19. ' In the foregoing analysis the question of validity of the impugned order also stands virtually resolved. It is reiterated that the rules for appointment of respondent No,4 to the post of Deputy Director were not framed before passing the impugned order and it was mistakenly assumed that only persons belonging to the administrative cadre could be appointed to the post under discussion. The experience, seniority and qualifications of the appellant qualify him for consideration for appointment to the said post. True that respondent No,4 has not been promoted and is in his own pay and scale but the fact remains that he is enjoying higher status and enhanced powers and, but for the pay, he is practically promoted for the last two years or so. On the other hand the appellant continues to serve in a lower post. The impugned order is therefore not sustainable.
20. ' We may also observe that in the service laws in force in Azad Jammu and Kashmir there is no concept of appointing, permanently or temporarily, a civil servant to a post carrying higher grade in his own pay and scale. According to section 8 of the Azad Jammu and Kashmir Civil Servants Act, 1976 "promotion" to a post carrying higher grade with the accepted connotation of "posting" and "transfer" is moving to a post in the same grade to which a civil servant belongs. Under section 16 of the Civil Servants Act a civil servant appointed to a post or grade shall be entitled in accordance with the rules to the pay sanctioned for such post or grade. It is yet to be seen whether a civil servant can be denied the pay sanctioned for such post if he works against it. The AJ&K Civil Servants (Appointment and Conditions of Service) Rules provide only three modes by which a person can be appointed to a post: (a) by promotion, (b) by transfer and (c) by initial recruitment.
21. The impugned order does not conform to any of these modes. In the said rules there is also a provision for appointment:
(a) on acting charge basis (rule 10-A);
(b) on current charge basis (rule 10-B) and
(c) on officiating basis (rule 13).
22. ' The impugned order is not covered by these provisions.
23. ' If a civil servant is appointed to a post carrying higher grade he is elevated in position and exercises higher powers and many persons carrying the same pay and scale serve under him and in some cases senior persons also can be posted to work under him. We have made similar observations in Mubashar-ul-Haq's case, referred to above, and also in Muhammad Rashid v.
24. Chairman AKLASC. (Civil Appeal No,78 of 1992, decided on 28-4-1993) (1993 PLC (C.S.) 1201):- "According to rule 27 of the AKLASC Employees Service Rules in case all matters not expressly provided in those rules members of the service shall be governed by appropriate rules/orders of the Government. Therefore, the Civil Servants Act and Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 are applicable to the Corporation. The concept of promotion as envisaged in section 8 of the Civil Servants Act is that promotion is to a post carrying higher grade while the accepted connotation of "transfer" is the shifting of an official to an equal post. There is no concept in the service laws of transferring a civil servant to a post carrying higher grade and that also for an indefinite period. According to the scheme of the service law if a vacancy is to be filled by promotion it is to be filled through the relevant Promotion Board.
25. However, if a vacancy cannot be filled immediately civil servants can be appointed to higher posts pending completion of the formalities in accordance with the rules of 1977 mentioned above. These rules provide for appointment on acting charge basis (rule 10-A), appointment on current charge basis (rule 10-B) and appointment by promotion on officiating basis (rule 13). In rule 10-B there is also a reference to appointment on ad hoc basis. If the rules already in force are found wanting in any situation the proper course is that the Government should amend the Rules. The prevalent practice of ordering civil servants to posts carrying higher grades should be brought to an end because sometime the senior persons are left to work in the same position while their juniors enjoy higher status and enhanced powers without adjudication for their suitability for promotion by the Promotion Board."
26. The appellant is senior to respondent No,4 but he is working as Poultry Development Officer in B-17 while respondent No,4 is thus enjoying higher status as compared to the appellant. In a similar situation this Court reached the conclusion in Muhammad Rashid's case referred to above that a civil servant becomes aggrieved. We may usefully reproduce the following passage:- "The appellant who is senior to the private respondents is working as Deputy Manager while the aforementioned respondents are enjoying the status and powers of Managers and this arrangement has been going on for more than two years in spite of the fact that it was claimed in the written statement filed in the High Court that it was a stopgap arrangement. The present arrangement is decidedly adverse to the service rights of the appellant which makes him an aggrieved person within the meaning of section 44 of the Interim Constitution Act.
27. ' While formulating the view we followed Maqsood Hussain v. Chairman Municipal Committee, Mirpur 1992 CLC 2203 and Mian Fazal Din v. Lahore Improvement Trust, Lahore (PLD 1969 SC 223).
28. As an upshot of the above the appeal is accepted and Government Order No, Admin./A-5(6)/S.O.- V/92, dated 19th November, 1992 is set aside with the result that respondent No,4 shall cease to hold office as Deputy ( Director (Planning, Development and Evaluation). The Government may fill up the post in accordance with law, whether temporarily or on permanent basis.