MALIK MUHAMMAD ASLAM KHAN (CHAIRMAN).-Through this appeal the appellant has challenged the promotion of S. Mohammad Ashraf Gilani, respondent No. 2, who was promoted as Accountant by the D. L-G. Police respondent No. 1, vide his order dated 5-3-1975 (copy Annex. E),
2. The appellant's case rests on his plea that he, being senior to respondent No. 2, was entitled to the promotion as an accountant in preference to respondent No. 2, as seniority is the sole basis for such a promotion. He has also assailed the impugned order on the ground that respondent No. I was not competent to promote respondent No. 2.
The stand taken by the respondents is that the appellant belongs to the Reserve Police while respondent No. 2 to that of Central Police Office. Seniority of these two branches is not combined and as such the appellant cannot claim his promotion to the post of an accountant in the regular Police. Another plea taken by them is that respondent No. 2 was a matriculate, well versed in account matters having b-en working previously as are accountant, and as such on the basis of merit and ability he boas rightly promoted as an accountant. Because senior its alone is not the criterion for such a promotion and the merit and ability are the main factors governing such promotions. Since the appellant is a non-metric with no previous accounts experience, he was rightly ignored in favour of respondent No. 2.
3. With a view to elucidating the position taken by the contesting parties, we examined Sardar Ali Afsar Khan D. I: G. Police Headquarters and also got placed on the file the copies of the service record of the appellant and respondent No. 2. We had also the advantage of hearing of the Registrar, Central Police Office who revealed that in Azad Kashmir, unlike Punjab, Ministerial Service Clerical Rules have neither been framed nor adopted which govern such cases. Likewise there is no order investing the D. I: G. to pass such promotion orders.
4. After going through the relevant record and hearing the learned counsel of the parties we are of the view that the stand taken by the respond--ents about appellant's being employee of the Reserve Police is unsubstantiated. The record rather shows that the appellant was initially appointed in the Central Police Office. The mere fact that he was later on transferred to Reserve Police does not make him an employee of the Reserve Police, such transfers from one branch to another are generally made for administrative ' purposes. Therefore we hold that since the appellant was initially recruited in the Central Police Once, his later transfers to Reserve Branch do not tale away his right of seniority with other senior clerks in the Central Police Office. D. I: G. has revealed that the Police department in Azad Kashmir has no rules/orders concerning the combination or otherwise of the seniority of the i Reserve -and the Rangers and C. P. O. and that different I: G. have been following different norms, some time combining the seniority and some time not. We feel, that this is not a happy state of affairs and it is high time that clear cat rules/orders are made in this respect to settle once for all, the chaos and confusion that is likely to arise in absence of a set policy.
It is clear from the service record of the contesting parties that the appel--lant is senior to respondent No. 2. Copies of their Service record (Annexure CWA & CWB) show that the appellant was appointed as Junior Clerk on 5-1-1960 and was later on promoted as senior clerk on 9..11-1971 while respondent No. 2 was appointed as junior clerk on 7-8-1963 and promoted as senior clerk on 22-8-74 to be effective from 1-8-1974. a This record is sufficient, per se, to support the claim of the appellant that he was senior to respondent No. 2 both as junior clerk and senior clerk. Copy of the seniority list of the police clerical staff (Annex. C) also places appellant at S. No. 10 and respon-- dent No.2 at S. No. 17 in order of seniority. Therefore we have no hesitation in coming to the conclusion that the appellant is senior to respondent No. 2 , and that their seniority is combined.
5. The next hotly contested point for decision is as to whether D. T: G. Police was competent to promote a senior clerk to the post of the accountant? In Azad Kashmir Punjab Police Rules of 1934 have been adopted but they do not contain any relevant provision detailing the powers of the D. I.- G. Police vis-a-vis the promotion or appointment of the Police Clerical Staff. In Punjab the promotion and appointment etc. of the Police Clerical staff isl governed by Ministerial Service Clerical Rules. We are told that such rules have neither been framed nor adopted in Azad Kashmir.
This is another area where the attention of the T. G. P. is invited so that the promoting authority and the ministerial staff of the police department is not left in quandary. For sound and smooth administration it is necessary that the rungs of promotion should be neatly and clearly marked and the competency in this regard of the concerned authority indicated. In the present case, in thaw absence of such rules support had to be sought from the Rules of Business after the D. L-G: failed to indicate the relevant departmental rules or orders, under which he derived the authority to pass the impugned order. It is interesting to note that even the D. I.-G. whom we examiner, had no idea as to under which law or rule he was competent to pass the impugned order. For this he had to address a letter to the I.-G. P. Punjab seeking guidance about the competency of the D. I.-G. Azad Kashmir for passing such orders. However we find that Schedule V Part III (page 60) of the Rules of Business empowers category If officers to make appointment of all Non-gazetted posts falling within National Pay Scales Nos. 5 to 7. D. L .G. Police, in the Rules Business, A has been placed in category-IT Officers and as such, we are of the view, D. I.-G. 's competency to pass the impugned order has been narrowly saved As the post of the accountant falls within Pay Scale No. 7 we hold that under Rules of Business, the D. I.-G. was competent to pass the impugned order.
6. Having come to the conclusion that the appellant is senior to respondent 2 and that D. I.-G. was competent to pass the impugned order, the next point that arises for decision is the finding out of the criterion --seniority vis-a-vis merit and ability---for promotion of a senior clerk to that of an accountant in the Police ministerial star. Since there are no departmental rules to guide us in this respect, we have to seek guidance from the Azad Jammu and Kashmir Service Rules-General Appendix-IT. For this both the learned counsel for the parties have relied on rule 25 of K.S.R., Vol.. IT.
The learned counsel for the appellant has relied on clause (a) (ii) of rule 25, K.S.R. in support of his contention that seniority alone is the basis for such promotions while the counsel for the respondents has referred to clause (a) (i) of rule 25, K.S.R. in support of his plea that it is primarily ability and merit that is to be looked into for making such promotions. We have given due consideration to the arguments addressed at the bar. Our view is that the position taken by the learned counsel for the appellant is tenable as in this case clause (a) (fl) will apply rending seniority as the main criterion for promotion. Relevant portions of the clauses are reproduced as:
25. (a) All promotions shall be made by the appointing authority.
(i) promotions to service or class or to a selection category or grade in such service or class shall be made on grounds of merit and ability and shall be subject to the passing of any tests that Government may prescribe in this behalf, seniority being considered only where the merit and ability are approximately equal
(ii) All other promotions shall be made in accordance with seniority and subject to any test or special qualification prescribed by Govern--ment unless-
(i) the promotion of a member has been withheld as a penalty ; or
(ii) a member is given special promotion for conspicuous merit and ability."
Terms 'service' and 'class' need be understood for bringing out the fine distinction between clauses
(a) (i) and (a) (ii) of the urle 25, K. S. R. `Service' been defined in rule 1 (x) as a group of posts declar9d by the Government to be a service. 'Class' is defined in rule 1 (Iv) as class means the posts borne on the cadre of a service between which and the other posts borne on the cadre of the same service, promotions and transfers are nut ordinarily admissible. In the light of the definition of these terms it appears that clause (a) (i) will apply where the promote belongs to one service and the post of promotion falls in another service i or where though the post falls in the same service, to which the promotee belongs, the post of promotion is of such a nature between which and other posts borne on the cadre of the same service. Ordinarily transfers and promotions are not admissible. This clause will also apply where the promotion is to be made to a post falling in a selection category or a selection grade. That case of promotions from one service to another are envisaged by K. S. R. is clear from the perusal of rule 9 which reads as, "First appointment" to service or class may be made-
(i) by transfer or promotion from another service or class ; or
(ii) direct recruitment ; or
(iii) partly by (i) and party by (ii)."
Clause (ix) of rule 1 also points to the same fact by showing that a candidate may be recruited by the transfer to a service when at the time of his first appointment he is either a member or a probationer in another service. Thus clause (a) (i) of Rule 25 laying down the main yardstick of merit and ability for promotion will be applicable in the above mention special case and not in the ordinary cases where clause (a) (l1) of Rule 25 will apply requiring the promotion to be made on the main basis of seniority as against merit and ability. Of course if the Government has prescribed passing of any tests or possession of special qualifications for promotion to a particular post, then under both the clauses, the passing of prescribed tests or acquisition of qualifications will be a condition precedent for such a promotion. But in the absence of any prescribed tests or qualifications the main determining factor for promotion under clause (a) (i) will be merit and ability and under clause (a) (ii) seniority. It may be stated here that though under clause (a) (ii) seniority is the basic determining factor for promotion, under exception (ii) of this clause, special promotion can also be made on the basis of conspicuous merit and ability and the seniority ignored.
To us this seems to be the main distinction between these two clauses where two different criteria have been laid down for promotion. This also seems to be quite reasonable as promotions to certain posts under the above stated circumstances have to be made in the interest of sound administration on the basis of merit and ability or possession of certain qualifications or passing of prescribed tests where mere seniority has to be ignored. But for this the special conditions laid down in clause (a) (i) must be fulfilled before the ordinary criterion of seniority as the basis for, promotion is ignored If a case does not strictly fall within the ambit of clause (a) (i) than the normal and ordinary criterion of seniority will govern the decision of promotion.
From another angle we find that if the interpretation sought to be placed by the learned counsel for the respondents that merit axed ability is the main determining factor for all cases of promotions, is accepted, then clause (ii) is rendered redundant. Because then there will remain no case of other promotions, which are to be made on the basis of seniority under this clause. It is an elementary principle of interpretation that as far as possible, clauses of a section or a Rule should be so interpreted as not to render one the negation of the other. Because the framers of Law and Rules are not generally suppose to intend the incorporation of contradictory or nugatory clauses. This is what it will come to if we accept the interpretation of the learned counsel for the respondents which is not permissible especially when both the clauses, which are neither superfluous nor in consistent, can be reasonably interpreted and reconciled. Then: Or, we accept the contention of the learned counsel of the appellant that clause (a) (ii), rule 25, K, S R. applies to the case under consideration and as such seniority of the candidates alone should have been determining factor for the promotion to the post of the accountant.
It may be stated as well that it is not the case of a special proportion for conspicuous merit and ability. All that the respondents could bring out was that respondent had been given preference over the appellant as the former had been working for some time as a helping hand to the accountant. It was also conceded that the respondent No. 2 had no pretensions to any special qualifications for accounts work or possessed any conspicuous merit and ability vis-a-vis the appellant so as to tilt the scales of promotion in his favour. Nay he was never officially appointed even as a helper to the accountant. To us it was a straight contest for promotion between two employees, none of which could have any justifiable pretension for any special qualification of conspicuous merit and ability justifying the preference of one over the other. It was also not a case to which clause (a) (i) be made applicable. The case was of an ordinary promotion attracting the application of clause (a) (ii) rule 25, K. S. R. according to which the senior person should have been promoted. As admittedly the appellant is senior to respondent No. 2, we accept the appeal for the foregoing reasons and order that he be promoted in place of respondent No 2. In view of the intricacy of interpretation of clauses (a)(i) and (a)(il) of rule 25 of the K. S. It. we pass no order as to costs. Copy of the order be also sent to I. G. P. for action indicated on the margin (A) and (B).