' RAJA BASHIR AHMAD KHAN (CHAIRMAN).---This appeal arises out of an order of the High Court issued under No,6521-48/HC/91, dated 6-6-1991 whereby the High Court was pleased to determine the seniority of the Judicial Officers in terms of section 30(2) of Azad Jammu and Kashmir Courts and Laws Code Act, 1949. This case has a chequered history as much as that it is under adjudication for the second time before this Tribunal after being under consideration even before the Supreme Court of Azad Jammu and Kashmir. The said Hon'able Court was pleased to observe in a case reported as 1989 PLC (C.S.) 561 in para. 49 of its judgment "As it is the law as enacted by the law-maker which in the present context is section 30(2) of the Laws Code has to be administered for the determination of the seniority of Judicial Officers".
2. Briefly stated the facts as contained in memorandum of appeal are that the appellant was initially appointed as Law Drafting Officer on 8-3-1972. The appellant was thereafter appointed and transferred as Sub-Judge vice order dated 19-8-1973. The appellant was relieved by the Law Department on 10-12-1973 and joined as Sub-Judge/Forest Magistrate, Bagh on 11-12-1973. The respondents Nos. 3 and 4 and were appointed as Sub-Judges while the respondent No,5 was appointed as Registrar, High Court on ad hoc basis for six months on 9-9-1973. The respondents were confirmed vide order dated .8-6-1976 on the recommendations of Public Service Commission. The appellant made two representations on 5-11-1978 and 15-3-1979 to the High Court after fixation of inter se seniority of the parties. The High Court rejected the representations on 12-4- 1979. The appellant preferred the appeal to the Government and a further appeal before the Service Tribunal which was partly accepted by the Tribunal vide its judgment dated 16-10-1985. The, appeal filed by the parties before the Supreme Court was disposed of vide its judgment dated 16- 5-1989. The High Court in view of the judgment of the Supreme Court determined the seniority of the parties. The order of the High Court has been challenged before this Tribunal after satisfying required conditions for filing appeal.
3. The respondents have put in their written objections and have controverted the claim of the appellant and have also raised the plea of limitation to the effect that the appeal before the Government was beyond the time allowed to file the appeal under the prevalent Appeal Rules. The appellant has reiterated his claim in his replication and also denied the preliminary objections raised in the written statements.
4. We have heard the learned counsel for the parties and have gone through the record.
5. The Chairman of the Tribunal vide his order dated 30-6-1992 admitted the appeal for regular hearing on following grounds:-- ' GROUNDS:
(i) Whether the impugned seniority list was prepared in accordance with subsection (2) of section 30 of Courts and Laws Code Act, 1949 after considering the service particulars of the appellant such as, his past experience, qualification duration of service under the Government, his efficiency and honesty.
(ii) Whether the tentative seniority list was circulated among the Sub-Judges for their objections and whether the objections taken by any of them were duly attended before the issue of the impugned seniority list. If not how does it affect the seniority of the appellant?
(iii) To what relief the appellant is entitled?
6. We propose to first dispose of objection of the respondents relating to maintainability of the appeal on the ground of limitation. The argument of the learned counsel for the respondents is that the seniority list dated 6-6-1991 was validly, communicated to the appellant. He filed the departmental appeal before the respondent No,1 beyond time. The departmental appeal is hopelessly time-barred and, therefore, his present appeal is also time-barred. The reply, on behalf of appellant to this argument is that the disputed seniority list was made available to him on 25-9- 1991. The departmental remedy was sought well within the time by the appellant therefore, the appeal is maintainable. The appeals to the departmental authority are provided under, the hides known as Azad Jammu and Kashmir Civil Servants (Appeal) Rules, 1991. A civil servant aggrieved by an order of the authority is entitled to appeal to the Appellate Authority against the order affecting his conditions of service etc. Within sixty days of the communication of the order appealed against as provided under Rule 5, sub-rule (4) of the said Rules. The aggrieved civil servant under the abovesaid rule is obliged only to prefer appeal before the Appellate Authority when the order is communicated to him. It is evident that the aggrieved civil servant has to submit the appeal within sixty days of the communication of the order. The material point, therefore, is whether the order was duly communicated to the appellant? The parties have adduced evidence to prove their respective stand on this point. Two witnesses, namely Muhammad Ayyub, Record Keeper, High Court and Kh. Munir Ahmed, Junior Clerk of this Tribunal have been produced by the appellant.
Muhammad Ayyub, Record Keeper has stated that photostat copies Exh. PA of the agenda of the meeting and the 'decision of meeting of Judges of the High Court Exh. PB are correct copies of the original. In cross-examination he has stated that page No,2 of Exh. PC which is Exh. PC/1 has been entered on the despatch register by the concerned Despatch Clerk. Kh. Munir Ahmed is posted as Junior Clerk in Service Tribunal in receipt and Despatch Branch. He was performing his duties as such on 6-6-1991. The appellant was a Member of the Service Tribunal and order Exh. PC appears to have not been entered in the Receipt Register from 6-6-1991 to 25-9-1991. In the cross-examination he has stated that he enters only those letters in the Receipt Register which are supplied to him. He also stated that the letters in the names of Chairman or Member are not received by him and such letters are not entered in the Receipt Register. He has also stated that no letter was entered in the Register from 6-6-1991 to 25-9-1991 which was in the names of Chairman or Member. Muhammad Shafiq another witness has stated that photostat copies of Exh. DA and Exh. DA/1 are correct copies of the original documents. The final seniority list of Sub-Judges was despatched to the concerned officers on 6-6-1991 under No,6521-48. The distribution of this seniority list has been entered in Dack Bhahi on 18-7-1991. The photostat copy of Exh. DB is the correct copy of the original entry in the Dack Bhahi. Muhammad Rafique has stated that he was working as Private Secretary to the Chairman of Service Tribunal on 18-7-1991. He received the letter which came from the High Court on 18-7-1991 in the name of Ashraf Kayani. He put his initials on the register and he admits his initials as correct.
The appellant Raja Muhammad Ashraf Kayani was working as Member of Service Tribunal those days. He has also stated that letters are usually received by the Receipt Clerk. If he is not available then he also receives letters and delivers them to the concerned officers. This witness has also stated that he cannot say whether he delivered the letter to Mr. Muhammad Ashraf Kayani or not.
From the evidence produced by the parties it becomes clear that seniority, of the Sub-Judges was determined in the meeting of the Judges of the High Court and was prepared on 6-6-1991 and same was sent to the Service Tribunal which was received by the Private Secretary to the Chairman on 18-7-1991. The appellant was functioning as Member of Service Tribunal on that day.
The seniority list was not directly sent to him. It was received by Muhammad Rafique and he is not certain whether he gave this seniority list to Mr. Ashraf Kayani or not. From this evidence one thing is clear that seniority list was not directly and personally received by, the appellant. It was rather received by the Private Secretary to the Chairman. The receipt of letters did not fall within the duties of this witness. In view of the facts brought on the record through this evidence we have to decide whether the seniority list was duly communicated to the appellant or not. It may be pertinent to state here that the communication of the seniority list has to be established so as to burden the appellant with disability of knocking him out to file appeal before this Tribunal. The word communication has not been defined in the Service Tribunals Act or the above-stated Appeal Rules. The word communication as found in the Oxford Reference Dictionary means something that communicates information, sent or transmit from one person to another. Similarly the word communicate in this Dictionary means to impart, to transmit, to make known to succeed in conveying information. In AIR 1970 SC 214 the Supreme Court of India has given the same meaning to word communicate. It was held that the ordinary meaning of the word communicate is to impart, confer or transmit information. The view which we take of the meaning of the, word communicate as indicated above is that the seniority list should have been sent or transmitted direct to the appellant from the High Court and it should be strictly proved that the High Court succeeded in conveying information to the appellant about the determination of seniority of the Sub-Judges. The counsel for the appellant has argued that it has been clearly stated in para. 11 of his appeal that impugned seniority list was not communicated to the appellant and after waiting for a considerable time he applied for the supply of the seniority list which was communicated to him on. 25-9-1991.
' The appellant has, in support of his assertion in the appeal filed an affidavit which remains unrebutted till, after it was realized by respondent No,3 only who moved an application on 13-12- 1994 to file an affidavit for supporting the contents of his written statement. We may state at this juncture that this case has been pending adjudication before this Tribunal since 27-1-1992 and the arguments of the counsel for the parties were heard on 2-6-1994 wherein the question of affidavit was also canvassed. The matter was, however, adjourned on a point relating to the constitution of the High Court for the purpose of this matter. This affidavit was submitted belatedly and in our opinion cannot be taken sufficient rebuttal of the affidavit filed by the appellant in support of his claim. We will attend to the evidentiary value of the affidavit later on. We, however, propose to deal with the argument of the respondents relating to communication of impugned seniority list to the appellant. It may be noted that the parties were allowed to produce evidence on the question of service of letter containing the seniority list. It has been contended by the counsel for respondents on the basis of the facts proved in the evidence that the High Court despatched the letter for providing information of determination of the seniority to the appellant which was received by the Private Secretary to the Chairman in the Service Tribunal. The despatch of letter by the High Court and its receipt in the Service Tribunal has been made through the common course of business, and, therefore, it may be presumed that the communication of the letter was in fact complete when it was received in the Service Tribunal. We have already discussed the relevant evidence relating to this aspect of the case. Muhammad Shafiq Despatch Clerk states in the cross- examination that the numbers of pages have not been entered on the Dack Bhahi. A simple paper has been affixed on the original page of the Dack Bhahi and photostat copy Exh. DB has been prepared from that simple paper. On the page of photostat Exh. DB an ordinary paper has been affixed. To the question of the Tribunal this witness has stated that the seniority list was sent on the chit for the reasons that the original Dack Bhahi might not have been available. Some other peon might have taken this Dack Bhahi and, therefore, the letters were sent through that chit. The impugned seniority list was despatched at No,6521-48 of despatch register the copy of which is Exh. DA. From this document it appears that on 6-6-1991 letter under No,6521-48 was despatched to Secretary Services, Secretary Law and all Judicial Officers of Azad Kashmir and also to Government Printing Press. The perusal of the Dack Bhahi of 6-6-1991 shows that this letter was only sent to Secretary Services and the letter was distributed to one Mr. Ashraf Kayani, Kh. Abdul Hamid, Sheikh Manzoor Ahmed, Mrs. Nargis Shaheen and Ch. Mumtaz Ahmed through Exh. DB on 18-7-1991. In- between the dates of 6-6-1991 and 18-7-1991 score of letters were distributed in Muzaffarabad through this Dack Bhahi. The chit from which Exh. DB has been prepared is affixed on the page whose previous page bears the date of 6-8-1991. It means that this letter was kept somewhere in the High Court for some purposes best known to functionaries of this Institution. The fact that the letter was despatched almost after a period of one and half month to the officers located in Muzaffarabad and score of letters were despatched to the other agencies and persons offends against the procedure to be followed to perform the duties in the common course of business. The negligence of the staff of the High Court is also proved by the fact that the name of appellant has been written as Ashraaf Kayani {{URDU TEXT}} without showing his appointment. Furthermore, the letter was not delivered to appellant himself. We are of the view that staff of High Court did not follow common course of business for delivery of this letter to the appellant. We reject this argument of the respondents. We are, therefore, not inclined to take any adverse presumption against the appellant. The other argument on behalf of the respondents is that the appellant has not entered into the witness-box and, therefore, presumption should be taken to discredit truth of his case. It is contended that the appellant was functioning as Member of Service Tribunal which fact is not denied by him and the seniority list was received in the Tribunal and since the appellant has failed to appear as a witness his behaviour as such should be taken as a strong presumption against him under section 14(g) of Evidence Act and also his non-appearance as a witness be held as a fact which is going to discredit the truth of his case. The counsel for respondents have relied on PLD 1986 Azad J&K 108 and PLD 1982 SC (AJ&K)
76. The first case relied upon by the respondents relates to a pre-emption suit and the second case relates to grant of succession certificate. The presumption to be drawn against the party under section 114(g) and the application of principle of sections 102 and 106 of Evidence Act can only be taken into consideration where a party having full knowledge of the case avoids giving evidence in his own case. In the first reported case the vendee, failed to appear as a witness and since he was one of the parties knowing the facts of the case and his interest was at stake it was held that his failure to appear has strong presumption against him. In the other case the party interested in getting the succession certification was personally knowing the whole circumstances of the case. The non-appearance of the party was taken as a strong circumstance going to discredit truth of its case. In the instant case the letter was despatched by the High Court and was received in the Service Tribunal by the Private Secretary to the Chairman who has stated in his statement that he does not recollect whether he delivered seniority list to the appellant or not. It proves that the appellant was not personally knowing the despatch and receipt of the seniority list and it is also doubtful whether the Private Secretary did deliver the seniority list to the appellant. His nonappearance as party, therefore, shall not be taken as adverse circumstance against him. The case of the parties before the Service Tribunal is ordinarily to be decided upon affidavit as provided under Rule 14(2) of Azad Jammu and Kashmir Service Tribunal (Procedure) Rules, 1976. Under this Rule the Tribunal may allow parties to lead evidence. The party affected by an affidavit can be permitted by the Tribunal to cross- examine the deponent with reference to the statements in the affidavit. The respondents did not cross-examine the deponent (appellant) with respect to the facts stated in the affidavit. They have C failed to avail of the opportunity provided to them under law.Their failure to do so can also be taken as a fact which proves that the contents of the affidavit are correct and, therefore, the non- appearance of the appellant as his witness is neutralized by the failure of the respondents to confront the appellant with reference to the contents of the affidavit. The respondents have failed to rebut affidavit attached with the memorandum of appeal wherein he has clearly stated that the seniority list was not communicated to him. It was held by the Supreme Court of Azad Jammu and Kashmir in Civil Appeal No,15 of 1992 titled as Kh. Ghulam Ahmed Samsam v. Secretary, Local Government etc.--- "The facts stated in the memorandum of appeal and supported by the affidavit in absence of any counter-affidavit have to be accepted as validly proved."
' In view of the above discussion and following the decision of Supreme Court we are of the view that the facts stated by the appellant in memorandum of appeal. Are correct. He was not communicated the seniority list as has been attempted to prove against him and we hold that the appellant filed an appeal well within the time before Prime Minister after the supply of seniority list Exh. DB (Annexure `E').
7. During the course of the arguments it was noticed that Mr. Justice Sher Zaman Ch. (Now Acting Chief Justice of High Court) was not associated in the process of determination of seniority of Judicial Officers. The question arose whether the determination of the seniority was valid or not.
The counsel for the appellant has submitted that Mr. Justice Sher Zaman Ch. Was a Judge of the High Court and in absence of his Lordship the High Court was not complete and the determination of seniority by the remaining Judges of the High Court is not valid. The counsel for the respondents have refuted this argument on the ground that the High Court under section 5 of the Azad Jammu and Kashmir Courts and Laws Code Act, 1949 consists of a Chief Justice and three or more Judges and since the seniority has been determined by three Judges besides the Chief Justice the High Court was complete for this purpose. The minimum number of Judges fixed under the relevant law is three. The seniority was determined in a meeting consisting of Chief Justice and other three Judges. We are, therefore, of the view that the High Court was complete when the seniority was determined.
8. The next point raised by the counsel for the appellant is that Mr. Justice Kh. Muhammad Saeed was counsel for one of the respondents, Mr. Iftikhar Hussain Butt in first round of proceedings between the parties and he should have not sat as a Judge in this matter and the association of his Lordship in determination of the seniority offends against the well-established principle of fairplay and justice. The counsel for appellant has relied on PLD 1986 SC (AJ&K) 23 and respondents have relied upon 1976 PLC (C.S.)
56. This point has not been taken by the appellant in memorandum of appeal and also in the appeal before the Prime Minister. The appellant failed to state that the association of Justice Kh. Muhammad Saeed caused any bias against him. We, therefore, feel that this point cannot be agitated at this belated stage and we, therefore, repel this argument.
9. The Supreme Court, in the matter of seniority between the parties declared that section 30(2) of the Laws Code is the provision that deals with the seniority of Judicial Officers. The factors which have to be considered by the High Court while determining the seniority of the Judicial Officers have been discussed by the Supreme Court at length and the reasons for considering these factors have also been given in the judgment. The factors are qualifications, efficiency, past experience, honesty and duration of service under the Government. The appellant has questioned the determination of the seniority on the ground that the seniority was prepared by the High Court in hasty manner and without applying its mind to the said factors. It is submitted by the counsel for appellant that the only basis on which the seniority has been fixed is the date of appointment of the contesting Judicial Officers ignoring the factors given in section. 30(2) of the Courts and Laws Code. The contention of the counsel is that the seniority having been determined without application of mind is of no legal substance and is liable to be set aside. The learned counsel has relied on PLD 1986 SC (AJ&K) 1, PLD 1978 Karachi 328. The Supreme Court in PLD 1986 SC (AJ&K) 1 held as under:-- "16. It hardly needs any authority that if the order of an appellate authority while disposing of an appeal does not contain reasons on which conclusion of such authority is based that cannot be deemed to be an order at all and that being in clear violation of the norms of judicial or quasi- judicial procedure would be deemed to be without legal authority and of no legal effect. In the instant case the order incorporated in the aforesaid letter being without any reasons or reference to any evidence on the record is no order in the eye of law. Thus, the order being violative of the norms of judicial principles is unlawful and of no legal consequence."
' The Supreme Court has rightly declared this order without lawful authority. In the Karachi case, the appeal which was clearly time-barred was entertained by the Additional Settlement Commissioner. There was nothing in the order of the Additional Settlement Commissioner to indicate that he applied his mind to the question of condonation of delay. The order was set aside on the authority of the decision of the Supreme Court in PLD 1969 SC 167 wherein it was held that there must be something in the order or judgment itself to show that Court concerned was conscious of the fact that the proceedings was out of time and had applied its mind to the question of limitation before dealing with the proceedings on merits.
10. The above-referred cases are not applicable in the present case. The agenda of the meeting Exh. PA, decision taken in the meeting of Judges Exh. PB and the seniority list Exh. PC issued on 6-6- 1991 have been brought on the record. In the agenda of the meeting Exh. PA it is clearly spelled out that the High Court addressed Letter No,9022, dated 7-12-1986 to the Law Department to obtain the approval of the Government for fixation of the seniority. The Law Department in reply to the letter of High Court informed that the seniority of Judicial Officers who were appointed prior to 8-12-1983 was to be determined under section 30(2) of the Courts and Laws Code in accordance with the judgment of the Supreme Court in case of Raja Muhammad Ashraf Kayani v. Azad Government etc. In the agenda of meeting the following opinion of the Supreme Court was also recorded: "In light of the assistance rendered by the learned counsel for the parties I have reached the conclusion that section 30(2) of the Laws Code governs the subject to the total exclusion of Rule 24 of KSR Rules. The power of determining seniority is vested in the High Court and the Government together and their joint efforts culminate in the final determination."
' It was again stated in the agenda that under section 30(2) of the Courts and Laws Code Act, 1949, the final seniority list of the Judicial Officers appointed before 8-12-1983 has to be determined with the approval of the Government. In the meeting of the Judges it was decided that:- {{URDU TEXT}} ' As is evident from the decision of the meeting Exh. PB the Hon'able Judges had in mind the provisions of section 30(2) of Courts and Laws Code Act. The seniority list Exh. PC also indicates that the High Court, in exercise of its powers under section 30(2) of the Courts and Laws Code and with the approval of the Government has determined the seniority of the Judicial Officers.
11. The High Court is not only a Court of Appeal or Revision etc. But has also the authority under section 46 of Azad Jammu and Kashmir Interim Constitution Act, 1974 of superintendence and control over all other Courts that are subordinate to it. In performance of its functions of superintendence and control over the subordinate Courts the cases decided by the subordinate Courts presided over by the judicial officers often come for consideration and decision before the High Court. The High Court is fully aware of the quality of judgments, reputation, experience and all other factors given in section 30(2) of Courts and Laws Code. It is not difficult for the High Court to assess the comparative traits of subordinate judicial officers. The record of all judicial officers is also with the High Court. All these facts are suggestive of the conclusion that the Chief Justice and Judges of the High Court were fully alive to the various factors for determining the seniority of the Judicial Officers particularly when they had the judgment of the Supreme Court before them. The learned counsel for appellant has vehemently argued that the service of the appellant as Law Drafting Officer has not been taken into consideration by the High Court. The appellant in his appeal has stated that he has been performing his duties to the entire satisfaction of the department and there is not any complaint whatsoever against him. He has shown better disposal of cases. His efficiency and honesty has never been questioned. The past experience coupled with duration of service under the Government is much longer than the contesting respondents but all these factors have not been taken into consideration while determining the impugned seniority list.
From this averment it appears that the appellant has tried to highlight his personal qualities of a good Judicial Officer but has failed to state that the contesting respondents are inferior to him in these qualities. In absence of any assertion about the merits or demerits of the contesting respondents we can safely assume that while determining the seniority the High Court was of the view that the respondents were either better qualified to be placed at a higher level in the seniority list or carried equal reputation of efficiency, past experience reputation etc. No efforts have been made on behalf of the appellant to prove that the appellant in matter of factors to be considered for seniority excels the respondents.
12. The performance of Judicial Officers which includes efficiency, proficiency, capability, reputation, experience and ability to control the affairs of the Courts coming to the notice of the High Court does create in the mind of the Judges of the High Court an image about the Judicial Officers. In the process of determining the seniority that image is translated into reality and that reality becomes the foundation for the determination of seniority. In the circumstances we find that the appellant has miserably failed to build up a reasonable case against respondents so as to have a favourable judgment from this Tribunal. The counsel for appellant during his submissions laid a great stress only on two points:
(i) The High' Court failed to consider the period of his service as Law Drafting Officer.
(ii) His past experience.
' The Supreme Court in para. 26 of its judgment reported as 1989 PLC (C.S.) 561 has validly declared that section 30(2) applies to Judicial Officers exclusively and not to other persons in the service of Government. In our view the Supreme Court has settled this issue under which the appellant desired to acquire benefits of past service. The Supreme Court has, however, expressed itself by holding that the past experience is one of the factors to be kept in view while determining the seniority. The past experience has not been qualified with any service of a person under the Government. When the appellant was functioning as Law Drafting Officer the contesting respondents were practising at the Bar. The function of appellant as Law Drafting Officer was almost an insignificant part in the broader-spectrum of the field of law whereas the respondents were performing their professional duties in a very vast field. The appellant, therefore, cannot be said to have gained better experience as Law Drafting Officer as against the respondents. It may be recalled that the appellant was appointed through Public Service Commission as Law Drafting Officer. He preferred to say farewell to this appointment and was keen to join the service as Sub- Judge. The function of a Draftsman has little or no similarity of working with the persons performing the functions of a Judicial Officer. The appellant was appointed Sub-Judge on 19-8-1973. He was, however, relieved by the Law Department quite after sometime and ultimately he joined the Judicial Department as Sub-Judge on 11-12-1973. The respondents were already functioning in the Judicial Department after their appointment with effect from 9-9-1973. In this period of about three months when the appellant was trying to get himself relieved from the Law Department the respondents were performing their functions in the Judicial Department. The period of three months cannot be counted as past experience in favour of respondents but this period may be considered to have the effect of nullifying the past experience being claimed by the appellant. We, are of the view, in the light of above facts that the past experience claimed by the appellant is not of much value to assess his superiority over the respondents. We, therefore, reject this submission.
13. The counsel for appellant has submitted that the appellant has not been provided opportunity of personal hearing. It is a salutary principle of natural justice that no person should be condemned unheard. The application of this principle based on proverbial concept of `audi alteram partem' which is subject to the condition whether it is a real compulsion to grant such opportunity or it is a merely formality. As we have discussed above the High Court more than usual has the occasions to superintend and control the subordinate judiciary. The working of the Judges is judged by the High Court from the decisions which come before it in shape of appeals etc. The reputation of the Judges is not only visible from the judgments but can be noticed by the general reputation of integrity, efficiency and disposal of the cases. The application of principle of `audi alteram partem' in this kind of situation is nothing more than a formality and non-observance of any formality does not render the decision of the High Court as ineffective. Apart from this aspect of the case the appellant has failed to bring on record any evidence showing that he has not been provided opportunity of being heard. We, therefore, repel this contention.
14. The next submission of the counsel for the appellant is that the approval of the Government has not been given in accordance with the procedure laid down under Rules of Business. It is submitted that executive actions of the Government are to be expressed in the name of President and every such order should be signed by the Secretary or other officers of the Secretariat and then it becomes the proper authentication of the order. The authentication of the Government instrument as visualised under Rule 10 of the Rule of Business is processed when the final order is to be issued by a department of the Government. The seniority of the Judicial Officers is determined under the Courts and Laws Code. After determination of the seniority the file is sent to the Government for its approval and after obtaining the approval of the Government the order has to be issued by the High Court itself and not by any Department of the Secretariat. The Rules of Business are primarily meant for transaction of business of the Government. The seniority of the Judges is determined by the High Court. The orders to that effect are also issued by the High Court. It is not the executive action of the Government which needs observance of the Rules of Business.
15. The next point needs consideration is based on the contention raised on behalf of the respondents to the effect that the respondents were granted NPS-18 and the various orders allowing Grade B-18 to the respondents so far remain unchallenged by the appellant and subsist as valid orders and have the effect of rendering this appeal as infructuous. The respondents in their written objections have raised the plea that the appellant has no cause of appeal. During the course of arguments it was claimed on behalf of respondent No, 3 that he was promoted in NPS-18 on 17-2-1979. He is in the higher grade as compared to the appellant. The grant of NPS-18 to Mirza Zaid Ullah and Raja Niaz Ahmed came under consideration before the Supreme Court. The Supreme Court was pleased to examine the order of Service Tribunal by which the grant of Grade- 18 to Mirza Zaid Ullah and Raja Niaz Ahmed during the pendency of the appeal before the Tribunal was set aside and Grade B-18 was granted to Mr. Raja Muhammad Ashraf Kayani. The Supreme Court held that the order of the Tribunal giving seniority to Mr. Ashraf Kayani from the date of appointment order is unsustainable. In view of this finding the Supreme Court set aside the order whereby Mr. Raja Muhammad Ashraf Kayani was allowed Grade-18 in preference to Mr. Zaid Ullah and Raja Niaz Ahmed. Similarly in cage of Mr..Iftikhar Hussain Butt the Supreme Court in para. 38 held:-- "38. I have already set aside in an earlier part of this judgment that order of the Service Tribunal by which it had upset the grant of Grade-18 to Mirza Zaid Ullah and Raja Niaz Ahmed. The reasons recorded by me in that part of the judgment are, mutatis mutandis, applicable to the point in issue now."
' With a view to further verify this matter we manage to obtain photostat copies of various orders whereby NPS-18 was granted to the contesting judicial officers. The orders are summarised as under:--
(i) Mr. Iftikhar Hussain Butt was allowed NPS-18 with effect from 30-10-1978 vide Order No, 1225- 29/SC/79, dated 17-2-1979.
(ii) Raja Niaz Ahmed was allowed NPS-18 with effect from 6-8-1984 under Order of the High Court No, 6407-11/HC/84, dated 17-11-1984.
(iii) Mirza Zaid Ullah was allowed NPS-18 with effect from the date Ch. Karam Dad took over as- Additional Sub-Judge, Bagh vide Order No, 4759-61/SC/85, dated 21-8-1985.
(iv) Raja Muhammad Ashraf Kayani was promoted against a vacant post of Sub-Judge in NPS-18 vide Notification issued by the Government under No, Admin/A-3(1) ( )/II/89, dated 25-2-1989 with effect from 9-7-1986.
(The photostat copies of the various orders have been placed on the file.)
' From the above-stated facts it becomes clear that the respondents were allowed NPS-18 on the dates earlier to that of the date when the appellant was promoted against the vacant post of Sub- Judge, B-18. The parties have been contesting their seniority and the appellant has challenged the determination of the seniority of those Sub-Judges who were appointed before 8-12-1983. We feel that the grant of NPS-18 to respondents on prior dates to that of the date of appellant has placed an unsurmountable obstacle in the way of appellant to ask for the setting aside of the seniority of respondents on the basis of facts stated in his appeal. While going through the judgment of the Supreme Court we find that the Supreme Court was pleased to hold that the provisions of section 30(2) is the law applicable for determining the seniority of the Judicial Officers and Rule 24 of KSR does not apply to Judicial Officers. On this finding the Supreme Court set aside the following orders of the Service Tribunal and status quo anti as it existed before the judgment was restored:-- "(i) declaring respondent No, 1 Mr. Ashraf Kayani senior to the appellants Mirza Zaid Ullah and Raja Niaz Ahmed Khan; and
(ii) granting NPS-18 to the said respondent with effect from 17-11-1984 and consequential adjustment.
(C) Civil Appeal No, 24 of 1986 Kh. Iftikhar Hussain Butt v. Mr. Muhammad Ashraf Kayani and 4 others is accepted so that the following orders of the Service Tribunal shall stand vacant--
(i) that respondent No, 1 Mr. Ashraf Kayani was senior to the appellant Kh. Iftikhar Hussain Butt; and
(ii) grant of NPS-18 to the said respondent with effect from 17-11-1984."
16. The appellant has been promoted vide Order dated 25-2-1986 as Sub-Judge of B-18 from 9-7- 1986. The appellant claims seniority over the respondents on the grounds set out in the memorandum 'of appeal. The appellant has been promoted and granted NPS-18 on the date which is subsequent to the dates of grant of B-18 to respondents. This Notification presumably affects the conditions of service of appellant as against the respondents. The appellant has taken no step to remove the effects of this order which means that he has taken it as fait accompli. In other words it can be said that he has reconciled his junior position to that of the respondents. The status quo thus maintained by the Supreme Court remains unchanged and in our view must continue. The seniority fixed by the High Court needs no amendment.
17. The counsel for appellant has submitted that the grant of grade NPS18 was not a promotion against a post but the promotion of the officers from Grade NPS-17 to Grade NPS-18. This argument of the counsel is without any substance when we see that the orders granted B-18 to the appellant was his promotion as Sub-Judge B-18. The relevant part of the order is reproduced:-- {{URDU TEXT}} ' The order of the Government under which. The 15% of regular strength of Judicial Officers were allowed NPS-18 is reproduced: "No, FD/1594-1644/76 AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR FINANCE DEPARTMENT `Muzaffarabad', Dated: the 9th February, 1976.
' To ' All Secretaries to Government, ' All Heads of Attached Departments. Azad Government of the State of J&K.
' Subject: NATIONAL PAY SCALES IN RESPECT OF JUDICIAL OFFICERS.
' Sir, ' I am directed to convey sanction of the President, Azad Jammu and Kashmir to the following amendments in the Schedule attached with the Government Order issued under No, FD/1492- 1551/74, dated 13-2-1974. {{TABLE}} S.No, Designtion of Existing Pay National Pay the Post. Scales. Scales.
1. District and 750--75--1,550 (i) 1,800--80--2,200 Session Judges. (w.c.f. 1-7-1970 (NPS. No, 19). to 5-4-1972)
850--75-- (ii) 2,300--100--2,600 1,450/100--1,650 (NPS-N. 20 for 15% (w.e.f, 6-4-1972) of regular strength of District and Sessions Judge.
Additional District and Sessions Judges.
(i) II 3. Sub-Judges 450--50--1,000 500--50--1,250 (NPS No, 17)
(ii) 1,000--75--1,750 (NPS No, 18) for 15% of regular strength of Sub-Judges.
(Sd.)
Deputy Secretary (Finance). {{TABLE}} ' It appears from this Government order that 15% of regular strength of Sub-Judges were allowed NPS-18. It means that this order creates two classes of Sub-Judges.
(1) Sub-Judges in NPS,-17.
(2) Sub-Judges in NPS-18.
18. This classification of the post of Sub-Judges has the effect of creating a separate tier for 15% of regular strength of Sub-Judges. The process of regular promotion has to be adopted while considering the grant of NPS-18 to the said strength of Sub-Judges which is further proved by the regular promotion of the appellant as Sub-Judge B-18.
19. The Government order under reference is clear that the promotion of judicial officers is not of a grade but against regular post of Sub-Judge in NPS-18. This cannot be termed as a mere move- over from one National Pay Scale to the next higher National Pay Scale. The picture which ultimately from"the above facts, emerges is that the respondents have been granted NPS-18 on the dates prior to the date of promotion of appellant to the post of Sub-Judge in NPS-18. These orders are very well-operative in the field, therefore, the present appeal of the appellant, in our view has been rendered infructuous.
20. In the light of above discussion we find no substance in this appeal which is hereby dismissed making no orders as to costs.