' RAJA BASHIR AHMAD KHAN (CHAIRMAN).---This appeal is directed against the Notification No, Admin/H-1(45)-II/93, dated 18-9-1993 whereby the appeal against the seniority list prepared by Secretary Health was declared as final and the objections on behalf of appellant on the said provisional seniority list were rejected by the Government.
2. Briefly stated the facts are that the appellant was appointed as Dental Surgeon on 24-2-1975.
The appointment of the appellant was approved by the Public Service Commission on 8-6-1975.
The respondent No,2 was appointed as Dental Surgeon on ad hoc basis on 7-11-1974. The appointment of respondent No, 2 was confirmed by the Public Service Commission on 16-11-1975.
The Department of Health circulated a tentative seniority list of Dental Surgeons on 7-10-1989. This seniority list was circulated without notice to the Dental Surgeons including the appellant. The appellant came to know about the said list by his own source. He filed objections on 17-10-1989. The Director, Health Services rejected the objections of the appellant. The appellant filed an appeal before the Government which was accepted and the Government directed the Department to circulate a tentative seniority list and the appellant filed his objections against the temporary seniority list on 29-4-1992. The Government, by impugned Notification maintained the seniority list circulated by the Director of Health Services. The appellant filed a review petition against this Notification. The review petition has not so far been decided. The appellant has filed this appeal after the expiry of ninety days of filing of his review petition.
3. The respondents have filed their written objections and have denied the facts stated in the appeal. The appellant has reiterated his original claim built up in his memorandum of appeal.
4. We have heard the learned counsel for the parties and have gone through the record.
5. The argument of the counsel for respondents is that the averments of the appellant are not sustainable for the reason that the recommendations of the Public Service Commission made between 24-8-1974 and 11-4-1978 have been annulled because of the illegal Constitution of that Commission and further that the appointments/confirmations made on the recommendations of Public Service Commission during this period were declared as ad hoc appointment etc. By section 8-A of Public Service Commission Ordinance, 1978 (Ordinance XIII of 1978) which has now become an Act of the Assembly (Act XVII of 1986). Section 9 of the Act is relevant in this case which covers the cases of both appellant and respondent No,
2. The claim of the appellant based on such recommendations of Public Service Commission lost its legal entity and is not maintainable in the eye of law. The counter-arguments of the learned counsel for the appellant is that the provisions of the said Ordinances and the subsequent Act of the Assembly are not applicable in the case of the parties. The appellant having been confirmed by the Public Service Commission in an earlier selection to that of the appellant is senior to respondent No, 2 and further that the appointment of appellant as well as the appointment of respondent No, 2 were not declared ad hoc under the relevant law and their cases were only referred to the subsequent constituted Public Service Commission for its former approval.
6. The arguments of the parties have to be decided in view of the relevant law on the subject and for that we have to consider the prevalent position of law. In this respect the Constitution of the Public Service Commission was found not legally constituted for lack of approval of the President of Azad Jammu and Kashmir and being violative of the Rules of Business by the Supreme Court in a reference of President Azad Jammu and Kashmir PLD 1978 SC (AJK)
37. The Ordinance known as Azad Jammu and Kashmir Public Service Commission (Amendment Ordinance, 1978) was issued on 20th March, 1978 (Ordinance No, XIII of 1978). A new section 8-A was inserted in Ordinance III of 1978. The newly-inserted section 8-A is reproduced below:-- "8-A. Previous appointments.---Notwithstanding anything contained in section 7 or any law for the time being in force or an appointment order;
(a) all persons recruited without reference to the Commission to the posts prescribed under section 7, at any time between twenty-fourth day of August, 1974 and coming into force of the Public Service Commission (Function) Rules immediately after promulgation of this Ordinance, shall be deemed to be ad hoc appointments and post held by any such person shall be filled in accordance with such period, not exceeding six months, as may be fixed by the Government by a Special or General Order;
(b) all recruitments other than those mentioned in clause (a) to the posts prescribed under section 7 at any time between twenty-fourth day of August, 1974 and coming into force of the Public Service Commission (Function) Rules framed immediately after promulgation of this Ordinance shall be referred to the Commission and if in the opinion of the Commission, a person recruited to any such post, is not fit to hold that post, he may be discharged from service; and
(c) All appointments made by promotion to posts in Grades 16 and 17 at any time between twenty- fourth day of August, 1974 and eighth day of May, 1977 shall be referred to the Commission and if in the opinion of the Commission, a person so appointed, is not fit to hold that post, he may be reverted to the post previously held by him."
7. Section 8-A after being incorporated in Ordinance XIII of 1978 was being repeated in the succeeding Ordinances till a further amendment in the shape of sub-clause (d) was added in Azad Jammu and Kashmir Public Service Commission Ordinance, 1982 (Ordinance XXIV of 1982) by the Ordinance known as Azad Jammu and Kashmir Public Service Commission (Amendment Ordinance, 1982) (Ordinance LXXI V of 1982). The newly-added clause (d) is reproduced below:- "(d) All appointments made by the initial recruitment or by promotion as envisaged in clauses (a),
(b) and (c) of this section shall, notwithstanding anything contained in Azad Jammu and Kashmir Civil Servants Act, 1976, or Rules framed thereunder or any other law for the time being in force shall be deemed to be ad hoc appointments till the suitability is assessed by the Public Service Commission and the action thereon taken by the Government. Such posts shall not be advertised and only suitability of the incumbents shall be assessed by the Public Service Commission."
8. From the above position of the law it appears that section 9(d) which has been pressed into service by counsel for the respondent No, 2 was first introduced in the legislation relating to the Public Service Commission through Ordinance LXXIV of 1982 on 15-4-1982. It becomes clear, and therefore, also falsifies the arguments of the counsel for respondent No, 2 that clause (d) was added through Ordinance No, XIII of 1978 in Ordinance No, III of 1978. The case for assessing the suitability of the doctors was referred to Public Service Commission. The Public Service Commission vide its recommendations dated 23-4-1979 gave its former approval to the appointment of the parties. When the former approval by the Public Service Commission was accorded to the appointments of the parties section 8-A as reproduced above was applicable to the case of the parties and not section 9 of the Act of 1986. In other words the provisions of section 8-A covered the case of the parties as it existed on 23-7-1979. Clause (d) was added on 15-4-1982, and therefore, is not relevant and also inapplicable to the facts of the instant case. While going through section 8-A of Ordinance XIII of 1978 we are of the view that clause (b) of section 8-A covers the case of the parties. In this clause it has been laid down that the posts shall be referred to the Commission and if the Commission is of the opinion that a person recruited to any post, is not fit to hold that post, he may be discharged from service. It may be useful to note that all persons recruited without reference to the Commission between the period 24-8-1974 and coming into force of Public Service Commission (Function) Rules, shall be deemed to be ad hoc appointments but there is no provision declaring the appointments as such under clause (b) of section 8-A of the said Ordinance. The newly-added clause (d) did not exist in the Ordinance when the former approval to appointments of parties was accorded by the Commission. We, therefore, cannot accept the arguments addressed on behalf of the respondent No, 2 that the appointment of the appellant was declared as ad hoc appointment. We may also refer to the provisions of section 13 of the Act XVII of 1986 wherein all actions taken under Ordinance III of 1978 or succeeding Ordinance issued from time to time have been saved. We are of the view that the approval of the Public Service Commission given before the introduction of clause (d) was declared valid by the Act itself.
9. The appellant was admittedly confirmed on 8-6-1975 by the Public Service Commission whereas the respondent No, 2 was confirmed on 16-11-1975. The initial appointment of respondent No, 2 was ad hoc in nature which could not be counted towards his seniority in the grade. The appellant who was confirmed in an earlier selection shall be deemed to senior to respondent No,
2. The case of the appellant and respondent No, 2 alongwith the other was sent to Public Service Commission to assess their suitability for retention in service. The Public Service Commission accorded its former approval to their appointments without touching the respective merits of the parties.
10. In view of the above we are of the view that the seniority by confirmation obtained by the appellant in an earlier selection has to be maintained.
11. The result of the above discussion is that the order under appeal is liable to be set aside to the extent of the seniority of appellant and respondent No, 2.
12. We, therefore, accept this appeal and declare the appellant as senior to respondent No, 2 and direct the respondent Government to assign a senior position to appellant to that of the respondent No,
2. The parties shall bear their respective costs.