' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, with the leave of the Court, has been filed to assail the correctness and validity of an order recorded by the Service Tribunal of Azad Jammu and Kashmir on September 27, 1995 whereby, the appeal filed by the appellant, herein, was dismissed.
2. The precise facts, forming the background of the present appeal, are that appellant, herein, was inducted in service as Assistant Engineer in the People's Works Programme Department on June 27, 1973, and was later on confirmed by the Public Service Commission. Subsequently he was transferred from the Department of People's Works Programme to.The Department of Public Works vide Government order dated August 25, 1976, and the services rendered by him in the Department of People's Works Programme were included in his service. The seniority of the Assistant Engineers in the Public Works Department was fixed vide Government order dated April 05, 1980, whereby the seniority of the appellant was to be reckoned from June 27, 1978 the date on which he joined the Peoples' Works Programme Department. It is further the case of appellant that respondents Nos. 3 to 5 were appointed as Assistant Engineers in the Public Works Department on December 1, 1974 but their appointments were not made on the recommendations of the Public Service Commission and, thus, their appointments were not according to law. But all the same respondents Nos. 3 to 5 were promoted as Executive Engineers on April 9, 1980, but the case of the promotion as Executive Engineer of the appellant was not considered by the Selection Board, because the question of his seniority as Assistant Engineer had not yet been resolved by the concerned authority. Afterwards respondent No, 5 challenged the order of the fixation of seniority dated April 15, 1980, in the Service Tribunal but his appeal was dismissed; the appeal filed to the Supreme Court was also dismissed vide order dated February 14, 1987. It was further averred that respondents Nos. 3 and 4 never challenged the order of fixation of seniority of appellant before any competent forum and his order of seniority became final against them. The appellant filed a review petition against the promotion order of respondents Nos. 3 to 5 dated April 9, 1980, and the review petition was forwarded to the Secretary, Services and General Administration Department on April 20, 1980, who expressed the view that as at the time of promotion of respondents Nos. 3 to 5, the case of the seniority of the appellant had not yet been decided, he was not superseded by respondents Nos. 3 to 5 within the meaning of relevant rules. However, the review petition of the appellant against the order dated April 9, 1980, against the promotion of respondents Nos. 3 to 5 was still pending when the appellant was also promoted as Executive Engineer on April 27, 1980, and was also confirmed on October 19, 1987. Later on vide Notification dated April 4, 1990, the promotion of the appellant was confirmed with retrospective effect from April 27, 1980. Thereafter the appellant was transferred against the post of Grade-19 as Member Technical in Prime Minister's Inspection Team on December 21, 1988.
This order was challenged by respondent No, 5 by filing a revision petition before the Government but the same was turned down on March 18, 1992. Subsequently the appellant and respondents Nos. 3 to 5 were confirmed as Superintending Engineers in Grade-19 vide order dated May 14, 1994.
A provisional seniority list was prepared by respondent No, 2 on August 21, 1980, in which the appellant was shown junior to respondents Nos. 3 to 5. The objections against the said seniority list were filed by the appellant but despite that final seniority list was issued on February 16, 1994, wherein respondents Nos.3 to 5 were again shown senior to appellant despite the fact that they were junior to him because the appellant was senior to them as Assistant Engineer and he was never superseded by them while promoting respondents Nos. 3 to 5 as Executive Engineers; as he was not considered by the Selection Board. The appellant filed a review petition against the aforesaid seniority list but the same was not decided and after the lapse of the statutory period the appellant filed an appeal before the Service Tribunal which was dismissed vide its impugned order dated September 27, 1995. Hence this appeal.
3. Arguing the case on behalf of appellant, Ch. Muhammad Ibrahim Zia, the learned counsel, submitted with vehemence that the case of appellant was not considered by the Selection Board at the time of promotion of respondents Nos. 3 to 5 as Executive Engineers so he cannot be deemed to have been superseded by them. According to the learned counsel the appellant was senior to respondents Nos. 3 to 5 as Assistant Engineer so he would be deemed to be senior to the respondents as Executive Engineer as visualised under the relevant rules governing the subject. The learned counsel has maintained that the period of service rendered by the appellant as Assistant Engineer in the People's Works Programme Department was counted towards his service and thus the appellant would be deemed to have joined as Assistant Engineer in the Public People's Works Department on the date when he joined People's Works Programme Department and as such would be senior to respondents Nos. 3 to 5 by all means who were inducted in the service in December, 1974, and that too without the recommendations of the Public Service Commission. The learned counsel for the appellant referred to Rule 8, Explanation (III) of the Azad Jammu ,and Kashmir Civil Service (Appointment and Conditions of Service) Rules, 1977 and section 7 of the Azad Jammu and Kashmir Civil Servants Act, 1976, and maintained that the appellant would be deemed to be senior to respondents Nos. 3 to 5 and the Service Tribunal fell in a grave legal error by ignoring the provisions of relevant law at the time of passing the impugned judgment.
4. In reply the learned counsel for respondents controverted the arguments raised by the learned counsel for the appellant. They have argued that the transfer of appellant from the Department of People's Works Programme to the Public Works Department was without approval of any Selection Board; the said approval was accorded by the Selection Board in year 1976, whereas respondents Nos. 3 to 5 were confirmed as Assistant Engineers much earlier than the appellant. It has also been argued that even otherwise the seniority of the appellant against respondents cannot be counted from the date of his transfer from the Department of People's Works Programme to the Public Works Department because to count service rendered in one department of Government is a different matter from the question of inter se seniority of the civil servants serving in the same cadre and pay scale. The learned counsel for respondents have strenuously contended that the initial appointments of the appellant and the respondents relate to a period when the question of their seniority could have been determined only under the relevant law existing at that time. The learned counsel submitted that the relevant rules for determining the seniority of the appellant as well as the respondents were Kashmir Civil Service Rules, 1939 (hereinafter to be referred as K.S.R.) and not any other law. On the aforesaid premises they maintained that the Service Tribunal committed no error in passing the impugned order and the appeal was rightly dismissed by it.
According to the learned counsel for respondents, the promotion order of respondents Nos. 3 to 5 was never challenged by the appellant so it was too late in the light of day to challenge the same.
5. We have given our due consideration to the arguments raised at the Bar. After hearing the respective contentions of the learned counsel for the parties and perusing the record made available, including impugned judgment, it may be stated that appeal filed by the appellant before the Service Tribunal was dismissed on the short ground that the appellant did not challenge the promotion of respondents Nos 3 to 5 as Executive Engineers and he cannot subsequently challenge their seniority. The fact of the matter is that at the time of promotion of respondents Nos. 3 to 5 as Executive Engineers the case of appellant for promotion was neither sent for nor considered. The question arises that when the appellant was not superseded at the time of promotion of respondents Nos. 3 to 5 as Executive Engineers then in our considered view he cannot be debarred from claiming seniority under the relevant rules. The plea to that effect was specifically raised and argued on behalf of appellant before the Service Tribunal and it finds a mention in the impugned judgment but this aspect of the case has been left undecided by the Service Tribunal. For the sake of convenience Rule 8, Explanation (III) of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 is reproduced below:--
8. The seniority inter se of persons appointed to post in the same grade in a Functional Unit shall be determined---
(a) in the case of persons appointed by initial recruitment, in accordance with the order of merit, assigned by the selection authority: Provided that persons, selected for appointment to the grade in an earlier selection shall rank senior to the persons selected in a later selection; and
(b) in the case of persons appointed otherwise, with reference to the dates of their continuous appointment in the grade: ' Provided that if the date of continuous appointment in the case of two or more persons appointed to the grade is the same, the older if not junior to the younger in the next below grade, shall rank senior to the younger person.
' Explanation I.--Explanation II.-- ' Explanation III.--Subject to the provisions of rule 14 of these rules, a junior appointed to a higher grade shall be deemed to have superseded his senior only if both the junior and the senior were considered for the higher grade and the junior was appointed in preference to the senior. Similarly section 7 of the Azad Jammu and Kashmir Civil Servants Act, 1976, reads as under:-- "7. Seniority.---(1) Seniority on initial appointment to a service, cadre, grade or post shall be determined in the prescribed manner.
(2) Seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to a post in that grade: Provided that civil servants who are selected for promotion to the higher grade in one batch shall, on their promotion to the higher grade, retain their inter se seniority as in the lower grade.
(3) For proper administration of a service, cadre or grade, the appointing authority shall from time to time cause a seniority list of the members of such service, cadre or grade to be prepared.
(4) Subject to the provisions of subsection (3), the seniority of a civil servant in relation to other civil servants belonging to the same service, cadre or grade, whether serving in the same department or office or not, shall be determined in such manner as may be prescribed.
(5)
6. A combined reading of the above provisions of law makes it abundantly clear that a civil servant being senior in lower grade, though promoted later on shall remain senior in the higher grade, provided that he was not considered and superseded by the Selection Authority. The appellant was given the benefit of his service rendered in the Department of People's Works Programme vide order of the Government dated May 25, 1976, forming Annexure P-7 in the paper book but this order was 'not challenged by the respondents Nos. 3 and 4 before any competent forum and as such it remained intact throughout. However this order was challenged by respondent No, 5 in appeal before the Service Tribunal and thereafter in the Supreme Court but he failed before both the forums. Again there is another order dated April 15, 1980, forming Annexure P-8 in the paper book whereby the Government accorded the sanction of the seniority of the appellant from the date of his initial appointment as Assistant Engineer in the Department of People's Works Programme towards Public Works Department. This order was also not challenged by respondents Nos. 3 and 4 as such the respondents were illegally declared senior to the appellant.
7. In the last limb of their arguments the learned counsel for respondents, as said earlier have strenuously contended that the relevant rules to be considered at the time of determination of seniority of appellant and respondents were K.S.R. But in violation of law the question of. Seniority was determined under the Azad Jummu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, as the appointments of contestants relate to period of 1973-74.
8. As stated above the appellant was promoted as Executive Engineer on April 27, 1980, and was also confirmed as such on October .19, 1987. Obviously, the question of their seniority would be determined according to Rule 8 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 (hereinafter to be referred as Rules of 1977) because according to Rule 23 of Azad Jummu and Kashmir Civil Servants Act, 1976 (hereinafter to be referred as Civil Servants Act, 1976) rules and regulations etc. Which were enforced immediately before the commencement of the said Act would be deemed to be made under the Civil Servants Act, 1976, provided that those are not inconsistent with the rules framed under it. If there is in consistency between the rules framed in the K.S.R. And those framed under Civil Servants Act, 1976, the provisions contained in Rules of 1977, shall prevail. Prima facie there is no inconsistency between Rule 8 of the Rules of 1977 and Rule 24 of K.S.R. On the point of seniority in case of promotion. In case of promotion the relevant provision contained in para. (c) of Rule 24 of K.S.R. Is reproduced as under:-- "(c) A member of a service class, category or grade unless he is reduced in seniority as a punishment shall retain seniority in such service or grade as determined by sub-rules (a) and (b) notwithstanding any delay in the completion of his probation or his appointment as a member of such service, class, category or grade"
(Underlining is ours).
' Although different phraseologies have been used in Rule 8 of Rules 1977 and Rule 24 (c) of K.S.R. In the relevant provisonts but there is no differnce so far as principle of seniority in case of promotion is concerned. When a civil servant who is senior in lower grade to other civil servant and both are promoted to next higher grade the person who is senior in lower grade without superseding him shall retain his seniority. Thus the principle of the seniority governing the point in issue incorporated in Rule 24 (c) of K.S.R. And Rule 8 of the Rules, 1977 is the same. Therefore, even if it is assumed that matter of seniority of the parties in the instant case is considered under the K.S.R. That would not make any difference on merits and appellant shall still be senior to the respondents.
9. Rule 9 of K.S.R. Read as under:-- "9. First appointments to a service or class may be made.---(i) by transfer or promotion from another service or class, or
(ii) by direct recruitment, or
(iii) partly by (i) and partly (ii)."
' From the perusal of the above provisions it also becomes clear that there is no bar in the K.S.R. For appointment ola civil servant by transfer. Even otherwise when the Government duly accorded the sanction for counting the services rendered in the People's Works Programme Department by the appellant towards his seniority in the Public Works Department and the order having not been challenged by the respondents before any forum, in our considered view they are not entitled to any relief. At the time of promotion of respondents, as Executive Engineers, the case of appellant, as said earlier, was neither sent nor considered in the matter of seniority.
10. For the reasons stated above we accept the appeal and vacate the order of the Service Tribunal dated February 16, 1994, and declare the appellant to be senior to respondents Nos. 3 to 5. In the seniority list the appellant shall be shown as senior to respondents Nos. 3 to 5 and it is directed that the seniority list be amended accordingly. No order as to costs.