SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment of the High Court dated 13-6-1998, whereby the writ petition filed by respondent No, 1 was accepted and a direction was issued to the Director Education for implementing the order. of the Secretary Education dated 30-10-1997, whereby the appeal filed by Syed Manzoor Ali Shah, respondent, was accepted and it was ordered that his name should be entered in the list of Senior Teachers Selection Grade B-17 at Serial No,232.
2. The brief facts of the case are that respondent, Syed Manzoor Ali Shah, filed an appeal before the Secretary Education alleging that he was appointed as Primary Teacher on 4-10,1978.
Subsequently, on passing B.Ed. Examination, he was given senior scale B-14 from 20-9-1979. It was further alleged that according to his knowledge previously no other seniority list of the Senior Teachers serving in Grade B-17 was prepared, except the impugned one, in which his name did not figure at all. Thus, he prayed that his name might be entered in the said seniority list at Serial No,
232. His appeal was accepted by the Secretary Education vide notification dated 3-10-1997, whereby it was ordered that his name should be entered at Serial No,232 in the seniority list of the Senior Teachers Selection Grade B-17. According to the respondent, he made repeated applications to the Director Education to amend the said seniority list according to the order of the Secretary Education passed on his appeal but needful was not done. Thus, he filed a writ petition in the High Court, wherein he impleaded Director Education (Secondary Schools) as party, seeking direction against him to implement the order of the Secretary Education. The written statement in the writ petition was filed on behalf of Director Eduction through Mr. Muhammad Bashir Butt, Advocate, contending that the seniority list was prepared according to the principle laid down by the Supreme Court in a case reported as Azad Government and another v. Zia-ud-Din Abdul Hamid and others (1993 SCR 151) and that the order of the Secretary Education was violative of the relevant rules against which a review petition has been filed. It was further contended that the name of Syed Manzoor Ali Shah, respondent, in the relevant seniority list, was entered in view of the date on which he earned the running senior scale; as the running pay scale was given to the respondent on 30-11-1987, after passing B.Ed. examination, his name was rightly placed at serial No, 753 of the relevant seniority list. Thereafter, an application was filed in the High Court on 8-6-1998 along with the comments of the Secretary Education by Mr. Muhammad Bashir Butt, Advocate, stating that according to the instruction given to him by the Law Department, the earlier written statement filed on behalf of the Director Education on 15-5-1998 was not valid without the approval of the Secretary Law. He further stated that as the Education Secretary was not impleaded as a party, either his comments which were filed with the applicant might be treated as his written statement or he might be impleaded as proformare spending in the writ petition and thereafter, permission to file written statement on his behalf might be granted. However, the interim order dated 8-6-1998 passed by the High Court shows that the ,Secretary Education was heard in person and his comments which had already been filed by the counsel for Director Education were also considered. After hearing the arguments in the case, the High Court accepted the writ petition and directed the Director Education to implement the order of the Secretary Education by entering the name of Syed Manzoor Ali Shah, respondent herein, at Serial No,232 of the seniority list of Senior Teachers who were serving in Grade B-17. The appellants, herein, filed present appeal alleging that the decisions of the Secretary Education and the High Court were given without hearing them. It was contended that they were necessary parties and the said decision of the Secretary Education and the impugned judgment of the High Court are not sustainable or binding on them as they were not party to the proceedings taken by the said authorities. It has been further contended that Syed Manzoor Ali Shah;- respondent, was junior to them because he passed his B.Ed. Examination in the year 1987 without which the running Grade B-16 could not be allocated to him under the relevant rules. It was contended that in the seniority list pertaining to the Senior Teachers, Grade B-.16 the name of Syed Manzoor Ali Shah appears at Serial No, 753 in view of date on which he got running senior scale. His name could not be entered in the seniority list of the teachers who were enjoying senior Scale B-17 because he was at Serial No, 753 in the seniority list of Senior Teachers who were serving in running pay scale B-16, as. only 30% out of teachers enjoying running pay scale B-16 could be promoted to B-17 in order of the seniority:
3. Raja Muhammad Hanif Khan, Advocate, the learned counsel for the appellants, apart from reiterating the abovementioned points raised in the memo. of appeal, has further argued that the writ petition before the High Court by respondent, Manzoor Ali Shah, was not competent because the matter pertained to the seniority which falls within the ambit of 'terms and conditions of service of civil servants. Thus, according to the learned counsel for the appellants, the direction given by the High Court in exercise of writ jurisdiction was without jurisdiction. He has contended that as the respondent was serving in B-16 and was never promoted to Grade B-17, how his name could be entered in the seniority list of the Senior Teachers who were serving in Grade B-17. The learned counsel for the appellants has further submitted that Manzoor Ali Shah, respondent, chose a shortcut for his promotion to Grade B-17 by seeking the entry of his name in the seniority list of teachers who were serving in Grade B-17 and thereby an automatic promotion to said grade, despite the fact that he was not eligible to such promotion in view of his position in the seniority list of the Senior Teachers serving in B-16 and that, too, without the recommendation of the concerned Selection Board. He has argued that the implementation of a patently illegal order cannot be directed in exercise of 'writ jurisdiction. He cited some authorities in support of his contention that the writ petition to the High Court was not competent, because the question relates to the terms and conditions of service of civil servants. We will refer and discuss these authorities at the proper place. The learned counsel has further contended that as the appellants were not impleaded as party despite the fact that their seniority was adversely affected, the direction given by the High Court is not sustainable because the appellants were not provided the opportunity of being heard.
The learned counsel has submitted the following authorities in support of his aforesaid contention: In case reported as Tariq Ajmi v. Maj. (Rtd.) Muhammad Aftab Ahmed (1999 MLD 187), it was argued in this Court that as the concerned persons were not aggrieved, the writ petition filed in the High Court by the respondents should have been dismissed. It was held that it is not necessary to be 'aggrieved' in strict juristic sense; if a person can prima facie, show that he has interest which has been adversely affected by an executive or judicial order, he can invoke the writ jurisdiction of the High Court. It was further observed that as the aggrieved persons who were not impleaded in the High Court as party had been adversely affected, the limitation would start from the date of their knowledge and, thus, the prayer for the condonation of delay in filing the appeal to the Supreme Court was allowed by this Court. Consequently, the appeal filed by the appellant was accepted and the order passed by the High Court in favour of the respondents in exercise of wit jurisdiction was vacated.
In case reported as Qazi Liaqat Ali Qureshi v. Hafiz Muhammad Ishaque (1998 PLC (C.S) 153), it has been observed that as the Selection Committee which conducted tests and interviews of the parties concerned was not arrayed as respondent, no effective writ could be issued in the absence of said committee. Thus, the writ should have been dismissed for the non-impleadment of the necessary party, despite the fact that no objection was raised in the High Court.
4. Ch. Muhammad Ibrahim Zia, Advocate, the learned counsel for respondent No,1, has controverted the arguments advanced on behalf of the appellants. He has argued that if the appellants had any grievance against the order of the Secretary Education, they should have appealed against the said order. According to the learned counsel, the order !passed by the Secretary Education in favour of Syed Manzoor Ali Shah, respondent, had become final and the Director Education was bound to implement it. The learned counsel has contended that there is ample authority in support of the proposition that if an order is not implemented by the concerned authority, a direction can be issued for the implementation of the same in exercise of writ jurisdiction. The learned counsel has argued that as the grievance of Syed Manzoor Ali Shah, respondent, arose when the seniority list of the teachers serving in Selection Grade B-17 was issued, it was not necessary for him to challenge the seniority list which was prepared with regard to the teachers serving in B-16. The learned counsel has argued that the appellants can seek the redressed of their grievance, if any, before the Service Tribunal even now by seeking the condo nation of delay. He has further maintained that whether the order of the Secretary Education was violate of law or rules could not be gone into by the High Court in exercise of writ jurisdiction or by this Court on appeal against the impugned judgment. This question can only be agitated and decided by the departmental authority and the Service Tribunal in the proceedings under the relevant law. Thus, he has maintained that the appellants were not legally competent to argue in the present proceedings that as the impugned order passed by the Secretary Education was illegal, direction could not be issued for the implementation of the same. The learned counsel has further argued that a writ could be issued by the High Court for the implementation of the order of the Secretary Education. He has maintained that the question of the implementation of an order is quite different from the question of deciding the matter regarding the terms and conditions of service of a civil servant. He has also cited some authorities in support of his contention to which we will be presently adverting to while deciding this question.
5. Let us first resolve the controversy raised by the learned counsel for the appellants and opposed by the learned counsel for the respondents that the High Court has no jurisdiction in any circumstances to issue any direction touching the terms and conditions of service of civil servants.
The learned counsel for the parties have cited a number of cases in support of their respective stands. The judgments are summarized below.
In case reported as Raja Naveed Hussain Khan v. Qazi Khalil-ur-Rehman (1994 SCR 267) the facts were that one Khalil-ur-Rehman had some grievance with regard to the fixation of his seniority. He made a representation which was followed by several petitions but of no avail. Subsequently, he approached the Prime Minister for the redressal of his grievance. The Prime Minister marked his petition to the Senior Minister for detailed examination of the matter. The Senior Minister submitted a report in his favour which was accepted by the Prime Minister on 9-4-1991 but the said order of the Prime Minister was not implemented. Consequently, a writ petition was filed seeking direction for the implementation of the order, passed by the Prime Minister. The writ petition was dismissed by the High Court mainly on the ground that the matter was being reconsidered by the Special Assistant of the Prime Minister and after the resubmission of the report by the Special Assistant the proper order would be passed by the Prime Minister. The High Court disposed of the writ petition observing as under:--- "7. The proposition relating to determination of seniority of petitioner and respondents Nos. 3, 4 and 5 is an intricate detailed proposition of facts and law. These have already been scrutinized at proper forum. Therefore, it is not deemed expedient to have another exercise into these questions.
This may not be necessary. Be that as it may, the fact remains that at this stage, the grievance of the petitioner may be redressed by issuance of direction to respondents Nos. and 2 to render expeditious disposal of the matter under law. Therefore, respondents Nos.1 and 2 are hereby directed to dispose of the matter expeditiously, pertaining to seniority of the petitioner by giving effect to the approval of Acting Prime Minister, dated December 27, 1993 and Special Assistant, dated February 8, 1993, in due course of law. The petition is disposed of accordingly. No order as to costs."
An appeal was filed against the aforesaid order of the High Court to this Court which was accepted and the judgment of the High Court was vacated observing that the High Court had given direction in the matter which pertained to the terms and conditions of a civil servant, which were being reconsidered by the concerned authority; it was observed that directions of the High Court were tantamount to depriving of the Prime Minister from exercising his legal right to give full consideration to the matter involving the right of the concerned civil servants.
In case reported as Dr. Muhammad Sarwar v. Dr. Muhammad Sharif Chatter (1998 PLC (C.S) 127), the facts were that the appellant with some others was promoted to scale B-20 after the approval of the relevant Selection Board whereas respondent No,1 was not approved for his promotion to Scale B-20 and was, thus, superseded by the appellant and others. However, respondent No,1 manoeuvred amendment in his A.C. Rs, and on the basis of said amendments his review petition was accepted by the authority concerned. Consequently, a notification was issued on 13-5-1993 whereby the respondent was also promoted to scale B-20 with retrospective effect from 7-5-1992.
As a result of the said notification, the respondent became senior to the appellant and some others despite the fact that the appellant and some others had been promoted to B-20 much earlier after the supersession of the respondent. Thereafter, one Ali Akbar, feeling aggrieved by the notification dated 13-5-1993, challenged the same before the competent Authority through a representation which was accepted and the respondent again became junior to the appellant and others. Thus, the Government intended to amend the order of promotion which was passed in favour of the respondent. The respondent filed a writ petition in the High Court seeking a writ of prohibition against the Government that the notification dated 1?-5-1993 should not be amended or cancelled in view of the provisions contained in section 21 of the General Clauses Act because the same had been acted upon. The High Court accepted the writ petition and issued a writ of prohibition against the Government. The appeal was accepted by this Court and the judgment of the High Court was set aside, inter alia, on the ground that as the order was patently void, the same could be recalled even if the same had been acted upon. With regard to the legality of the order dated 13-5-1993, it was observed that it was for the concerned authority to go into the question of legality. However, it was observed that the High Court had not taken into consideration the dictum of this Court reported as Raja Naveed Hussain Khan v. Qazi Khalil-ur-Rehman (1994 SCR 267], wherein it has been observed that if the matter pertains to the terms and conditions of service of the civil servants, that cannot be protected or assailed by invoking the writ jurisdiction of the High Court which is barred under section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
In case reported as Azad Jammu and Kashmir Government v. Mujahid Hussain Naqvi (1996 SCR 305), a writ petition was filed by Mujahid Hussain Naqvi, alleging that the Prime Minister, vide his order dated 27-12-1993, had ordered his promotion as Secretary and directed the concerned authorities to take steps for issuing formal order in that regard but the said authorities did not carry out the order of the Prime Minister. It was further alleged that he had also filed a representation to the Prime.Minister for getting his order implemented who repeatedly directed the appellants Nos.2 and 3 to implement his order but needful was not done. The respondents took the stand that the Prime Minister had withdrawn his order dated 27-12-1993 passed in exercise of review jurisdiction and, thus, there was no question of the implementation of his order. The questions before the High Court were as to whether the Prime Minister had, in fact, withdrawn his order or not and whether the writ was competent in view of the fact that no direction could be issued which pertained to the terms and conditions of service of a civil servant in view of the provisions contained in section 47 of the Interim Constitution Act. The High Court dismissed the writ petition but at the same time directed the Prime Minister to reconsider the review petition filed by the concerned civil servant; the High Court also made certain observations in paras. 10, 11 and 12 of its judgment. On appeal to this Court, the judgment of the High Court was upheld but it was observed that while considering the review petition, the Prime Minister shall not be influenced by the observations made by the High Court in paragraphs 10, 11 and 12 of the impugned judgment. In this case, the question as to whether direction could be issued to implement the order of the Prime Minister was not decided by this Court because that did not need resolution keeping in view the controversy between the parties.
However, the case law by the concerned parties in favour and against the proposition was cited at Bar. It was also opined by this Court that the contention of the appellants that the persons who were adversely affected were not impleaded as party and, thus, the writ petition should have been dismissed on this sole ground was repelled observing that if a person is not arrayed as a party in such proceedings, he is not bound by the order passed in the proceedings and, thus, he cannot be said to he adversely affected by the order passed.
In case reported as Farooq Ahmad Khan v. Shaukat Jan Bauch (1995 SCR 374), the orders were passed by the Prime Minister but those were neither implemented nor were resubmitted to the Prime Minister as envisaged in the Rules of Business. It was held that under the Rules of Business, the Chief Secretary or the Secretary Services and General Administration Department are bound to implement an order of the competent Authority or to resubmit the matter for reconsideration to Prime Minister. It was held that as the functionaries concerned did not. take any action and slept over the order of the Prime Minister. a writ of mandamus could be issued directing them to act according to the provisions of Rules of Business, i,e,, either to implement the order of the Prime Minister or resubmit the same. It was observed that the High Court did not decide the matter pertaining to the terms and conditions of the service of civil servant in exercise of writ jurisdiction but only directed the functionaries concerned to perform their functions as envisaged by the Rules of Business. In that case reliance was placed on S.M.H. Rizvi v. Maqsood Ahmad (PLD 1981 SC 612).
In case reported as Maulana Ghulam-ud-Din v. Azad Jammu and Kashmir Government (1998 SCR 194), a civil servant had filed a departmental appeal which was not decided despite the expiry of considerable. period. Thus, a writ of mandamus was issued directing the concerned authority to dispose of the appeal under rules.
In an unreported case entitled Raldishanda Kokab v. Kaneez Akhtar (Civil Appeal No, 100 of 1998, decided on 15-10-1998), an appeal was filed against the interim order whereby the writ petition filed by Kaneez Akhtar, respondent, was admitted for regular hearing and a stay order was issued. The admission order was assailed by filing an appeal to this Court that as the matter pertained to the terms and conditions of service of the civil servants, the High Court had no jurisdiction to entertain the writ petition in view of section 47 of the Interim Constitution Act. The contention was repelled observing that, prima facie, the writ petition was filed for the implementation of an order issued by the competent Authority and not for deciding the question relating to the terms and conditions of service of the civil servants. Thus, the appeal was clismissedt In an unreported case entitled Muhammad Tariq Amin and others v. Muhammad Hussain and others (1999 PLC (C.S) 941 decided on 12-2-1999) - thit-Court observed as follows:--- "Without adverting to the question of determining the seniority of the parties the law stands settled that the matter which involves terms and conditions of a civil servant, the jurisdiction of the High Court stands totally ousted in view of bar contained in subsection (2) of section 47 of the Interim Constitution Act. The finding, thus, recorded by the High Court being in contravention of the dictum laid down by this Court in various cases relied by the learned counsel for the appellants is bad in law which is hereby set aside. In our view there is a marked distinction between those cases in which the High Court merely issues a direction to the Government functionaries or the lower Tribunals to decide a case Within a certain time and those cases in which a direction is given on the basis of which a certain civil servant becomes senior to those who challenge his seniority."
6. We have given due consideration to the matter. It is provided in section 47 of the Azad Jammu and Kashmir Interim Constitution Act that when a Tribunal visualized in the said section has been established the Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of persons who are or have been in the service of Azad Jammu and Kashmir and no other Court shall grant an injunction, make any order or entertain any proceeding in respect of any matter to which the jurisdiction of the Tribunal extends. Briefly stated, if there is any matter relating to terms and conditions of service to which the jurisdiction of Service Tribunal extends, no other Court can even entertain any proceeding in respect of such matter. The provision is unambiguous and it completely ousts the jurisdiction of all other Courts, including the High Court and this Court, but this ouster is applicable only to those matters over which the Tribunal has jurisdiction. When we turn to section 4 of the Azad Jammu and Kashmir Service Tribunals Act, 1975 we find that an aggrieved civil servant can approach the Service Tribunal only by filing an appeal against a final order passed by a departmental authority. It means that if a final order has not been passed an appeal does not lie to the Service Tribunal in matters relating to terms and conditions of service.
Conversely, the Service Tribunal cannot exercise jurisdiction except when an appeal has been filed against a final order. It follows that the Service Tribunal cannot exercise jurisdiction when a final order has not been passed. It is clear from section 4 that the Tribunal does not have the jurisdiction to issue a declaration simplicitor or to issue a direction otherwise than on appeal.
7. If a final order has been passed the High Court has no jurisdiction to entertain any proceeding in respect of such order. However, if the High Court still exercises jurisdiction and entertains a proceeding in that matter it would be travelling beyond its jurisdiction as has been declared by this Court in many cases. It may be observed that difficulty arises where no final order has been passed or if a final order has been passed but it is not being implemented. These are the situations which were dealt with by this Court in C the judgments discussed above. From the precedents cited by the learned counsel for the parties it is apparent that no inflexible rule has been laid down in these matters with regard to the jurisdiction of the High Court in service matters. We are of the view that an inflexible rule cannot be laid down on the question of the jurisdiction of the High Court and each case should be decided in light of its own circumstances, subject to the condition imposed by section 47 of the Interim Constitution Act that High Court will not entertain a proceeding in respect of a matter within the exclusive jurisdiction of the Service Tribunal.
8. However, following broad principles are laid down for guidance:--
(1) If an adverse order has been passed by a departmental authority, it can only be challenged by filing appeal before the Service Tribunal to the total exclusion of the jurisdiction of the High Court.
(2) If a favorable order has been passed by a departmental authority but it is not being implemented without just cause and the matter suffers from procrastination a writ, subject to just exceptions, may issue to enforce its implementation provided always that the order is valid and legally enforceable.
(3) Principle laid down in No,2 above would not apply if the previous order is being reconsidered or is being recalled in which case reasonable time should be allowed for the reconsideration and final disposal of the matter. In such cases High Court cannot issue a direction, to the relevant departmental authorities not to withdraw or amend the order sought to be implemented through the writ petition.
(4) If a final order has not been passed the concerned civil servant should wait till passing of such order and then challenge it before the Service Tribunal instead of approaching the High Court for a declaration or injunction regarding a matter which falls within the ambit of terms and conditions of this service e.g. seniority, promotion, posting etc.
(5) If an application, appeal or review is pending for disposal with the departmental authorities, the High Court is competent to issue a direction for its disposal within a reasonable time by fixing a time limit. However, this power will be exercisable only if the High Court is satisfied that the departmental authorities are procrastinating or contumaciously refuse to pass a final order.
9. In the present case the appeal filed by respondent, Syed Manzoor Ali Shah, was accepted by the Secretary Education and the order of the Secretary was not challenged by any other civil servant.
However, the order has not been implemented. This case, therefore, falls under guideline No,2 above, with the result that the writ petition is held to be maintainable.
10.The argument of the learned counsel for the appellants that as the appellants were not party to the writ petition in the High Court or before the Secretary Education, the aforesaid orders are illegal and must be set aside on this sole ground. It may be stated that as the appellants were not impleaded as party in the said proceedings, the orders passed therein are not binding on them.
But the impugned orders cannot be set aside on this ground, because if the appellants are not bound by the said orders and no relief was sought against them, how the orders can be set aside, even against those who were parties in the proceedings. A reference may be made to a case reported as Azad Jammu and Kashmir Government v. Mujahid Hussain Naqvi (1996 SCR 305), wherein identical view has been taken. However, if it is found that the order of the secretary Education was violative of law on the other grounds agitated on behalf of the appellants, the impugned judgment of the High Court would not be sustainable, because the writ jurisdiction cannot be invoked seeking the implementation of an order which is illegal on the very face of it. The contention of the learned counsel for the respondent that the question of the legality of the order of Secretary Education cannot be agitated . by the appellants in writ jurisdiction; if they had grievance against the said order, they should have appealed to the Service Tribunal, is not tenable, because if the respondent could seek the implementation of the order of the Secretary Education by filing a writ petition, the appellants can also legally resist the same in the present proceedings on the ground that as the order of the Secretary Education was illegal, the same cannot be implemented by invoking the writ jurisdiction. It is well-settled principle of law that in discretionary writ jurisdiction, the High Court can refuse the implementation of an order which is patently illegal. A reference may be made to the following authorities in support of the view:-- In case reported as Major Muhammad Aftab Ahmad v. Azad Jammu and Kashmir Government (1992 SCR 307), one Major Muhammad Aftab Ahmad, a retired Army Officer, sought his appointment as Superintendent of Police against the reserved quota for Army Officers. He made repeated applications first to the Prime Minister and then to the Minister concerned for his appointment as Superintendent of Police. The Prime Minister directed the Chief Secretary and thereafter, the Secretary of the department concerned to prepare the file and appoint Major Aftab as Superintendent of Police. It was observed by this Court that the appointment of Superintendents of Police is governed by Police Rules which envisage that the vacancy of Superintendent of Police can only be filled in by promotion from the officers of police Department in the cadre of Assistant Superintendent of Police, Deputy Superintendent of Police or the Prosecution Deputy Superintendent of Police and, thus, the direction of the Prime Minister being in violation of rules could not be implemented; it was further observed that the Prime Minister had only ordered for processing the case of the applicant for his appointment as Superintendent of Police and did not appoint him as such. It was also observed that even if it was assumed for the sake of argument that the Prime Minister has made an order of his appointment as Superintendent of Police, still no direction could be given for the implementation of the said order because the writ jurisdiction cannot be exercised for the implementation of an order which is violative of relevant rules.
In case reported as Ch. Sadiq Ali v. The Chief Secretary (1995 SCR 325), the facts of the case were that the Prime Minister directed the Chief Secretary to implement the order of promotion of the concerned civil servant but the direction of the Prime Minister was not implemented by the Chief Secretary. A writ petition was filed in the High Court praying for a direction to the Chief Secretary to implement the order. It was argued that as the Service Tribunal could not issue a direction for implementation of an order of the Prime Minister, the writ jurisdictidn of the High Court was rightly invoked. The order of dismissal of the writ petition passed by the High Court was upheld observing that the matter pertained to the promotion of the concerned civil servant and, thus, pertained to the terms and conditions of his service; the jurisdiction of the High Court was held to be ousted. It was further observed that as the order was violative of the relevant rules, no writ could be, issued for the implementation of the order of the Prime Minister because the concerned civil servant could be promoted to the next higher grade only after the approval of relevant Selection Board. Thus, it was held that the Chief Secretary was not bound to implement the order.
11. The next question arises as to whether the order of the Secretary Education that .Syed Manzoor Ali Shah, respondent, should be placed at Serial No,232 in the seniority list of the Senior Teachers Grade B-17 was legal. It is admitted even in the memo. of appeal filed by Syed Manzoor Ali Shah, respondent, before the secretary Education that he was serving in Scale B-16 at that time. A seniority list of the Senior Teachers in B-16 has been placed on the record of this Court which shows that the name of the respondent in the said list appears at Serial No, 753. He never challenged the said list and it is not his case that he was ever promoted to Grade B-17. Thus, if respondent No,1 was not promoted to Selection Grade B-17, how his name could be entered in the seniority list of the Senior Teachers who were serving in grade B-17. It hardly needs any argument that the name of respondent No,1 could only be entered in the seniority list pertaining to the Senior Teachers enjoying grade B-17 if he would have been promoted to the said grade. Therefore, it has been rightly contended by the learned counsel for the appellants, that respondent No,1 chose a short cut for bringing his name in the seniority list pertaining to the Senior Teachers serving in Grade B-17 without his promotion. The order of the Secretary Education does not contain any reason as to how the respondent should be entered in the seniority list of the Senior Teachers holding Grade B-17. In the written statement filed on behalf of the Director Education, it has been contended that the order of the Secretary Education was violative of law but the High Court issued the direction for the implementation of the same simply on the ground that according to the Secretary Education his order was perfectly legal. It may be observed that the Secretary Education was not a party in the writ petition and, thus, his stand with regard to the legality of his order had no legal force whatsoever, especially so when there was controversy between him and the Director Education with regard to the legality of the said order which resulted in filing of writ petition in the High Court.
It has been recorded even by the High Court in the impugned judgment that the Secretary Education was not a party for the proceedings; he was not so impleaded even after the application by Mr. Muhammad Bashir Butt, Advocate, in that regard. Besides, Mr. Muhammad Bashir Butt, Advocate, was counsel for the Director Education and not for the Secretary Education, especially so when the Government was not impleaded as a party in the writ petition.
12.There is yet another important aspect of the case. As has been contended by the learned counsel for the appellants that there have been more than one categories of Senior Teachers in the Education Department right since 1964 and such categories still continue to exist despite the fact that at different times different pay scales were given to the teachers serving in different categories. A distinction has always been present in case of pay scales of trained teachers and those who were untrained; the pay scales of the trained teachers have been higher than those of untrained teachers. Obviously, it cannot be said by any stretch of imagination that the Senior Teachers who are enjoying different scales of pay, their seniority would be determined irrespective of their grade in which they were appointed by initial recruitment or promotion. For instance if two Senior Teachers are serving in same category Athich has the same pay scale, one who was appointed in the said pay scale earlier would be deemed to be senior to the other and if junior one is promoted to the higher pay scale as being eligible for the promotion after having acquired the requisite training, he would be senior after his promotion, despite the fact that he was junior in the lower pay scale before his promotion. If the one who was senior in lower pay scale is also promoted after obtaining the requisite training to the higher grade, it cannot be said that as he was not superseded at the time of the promotion of junior to the higher grade, he would also be senior in the grade to which both of them stood promoted, because one who was senior in the lower grade was not eligible to promotion due to the lack of requisite qualification for the promotion to the higher grade. If we accept the view that despite the fact that a trained teacher is promoted and is given running pay scale in that grade would be junior to one who was enjoying the minimum pay scale of the said grade as being untrained, that would lead to proposterous situation; a teacher who is given minimum pay of a grade cannot be placed at par with one who was given higher pay scale in view of his qualifications for the purpose of seniority. The moment one who was junior is awarded higher pay scale, he would become senior to one who enjoys lesser pay scale.
13.Before coming into force of Azad Jammu and Kashmir Civil Servants Act, 1976, Kashmir Civil Service Rules (commonly known as K.S.R.) were in force. It is provided in section 23(2) of the Azad Jammu and Kashmir Civil servants Act, 1976, that any rules in force immediately before the commencement of the Act, would be deemed to be made under this Act if the same are not inconsistent with the Act of 1976.
14.Whether or not rule 24 of the Kashmir Civil Service Rules is inconsistent with rules 8 of the Azad Jammu and Kashmir Civil Servants (Appointments and Conditions of Service) Rules, 1977, does no fall for determination in this case because in so far as the present case is concerned, there is no material difference between. the said rules on the point of seniority. We will examine both the provisions in order to arrive at the correct conclusion. For convenience, rule 24 of the K.S.R. is reproduced below:-- "24 (a) The seniority of a person who is subject to these rules has reference to the service, class, category or grade with reference to which the question has arisen. Such seniority shall be determined by the date of his first appointment to such service, class, category or grade, as the case may be.
(b)......................
(c).................................
(d)..............................
(Underlining is ours).
15. Identical matter came up for consideration before the High Court in an unreported case entitled Syed Faqir Shah v. Azad Government of the State of Jammu and Kashmir and others (Writ Petition No,11 of 1971) decided on 4-11-1973). The Bench of the High Court consisting of Kh. Muhammad Sharif, C.J, and Muhammad Yusuf Saraf, J., after recording the statement of Muhammad Hanif, Head Clerk of Education Department, has observed as under:--- "The statement of Mr. Hanif was recorded on 12-7-1973 in the presence of the learned counsel for the parties. Mr. Hanif, who had brought the relevant Government order with regard to the gradation of Senior Teachers, stated that there are three categories; the first one applies to trained graduates/post graduates which is 200-8-280/10-350; the second grade applies to those who are only graduates and who are technically called untrained graduates, they get fixed salary of Rs, 170 per month; in the third category have been grouped all other Senior Teachers and their grade is 125-7-195/8-275. This was Government Order No,270 of 1964 and had been issued by the Finance Department on behalf of the Government and was being acted upon since 1st July, 1963."
While referring to the provisions contained in rule 24 of the Kashmir Civil Service Rules, it was further observed as below:--- "The Government while. revising the pay scales, framed the rules that trained graduates shall draw the senior scale Grade-I from the date of their passing B.Ed. Examination. In the light of this rule, the seniority list is to be revised from time to time. It cannot be said that it is unjust to revise the seniority list but is quite in conformity with justice and fair play. It was conceded by the learned counsel for the petitioner and is also apparent from the seniority list placed on the record that respondents Nos.4 to 27 passed their B.Ed. examination earlier than the petitioner; therefore, they have been rightly shown above his name in the seniority list and we cannot find and fault with this seniority list......"
"The earlier stand of the petitioner that there was only one grade for Senior Teachers has been demolished by the entries in the seniority list showing that there are three grades for Senior Teachers. The year of the petitioner's passing the B.Ed. Examination is 1965 and keeping in view the date of his passing the examination, he was authorised to draw his pay in Grade-I from 18-6-1965.
Respondents Nos.4 to 27 had passed their B.Ed. Examination earlier than the petitioner and had drawn their pays in Grade-I earlier than him. Therefore they have been rightly shown in the revised list as senior to the petitioner."
The extracts of the above judgment are also indicative of the fact that there have been different categories of the Senior Teachers who were having different pay scales as early as from the year 1964.
16. The case discussed above was decided in light of rule 24 of Kashmir Civil Service Rules (K.S.R).
The present rule relating to fixation of seniority is rule 8 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 of which rule 1 is relevant which may he reproduced as below:--- "(1). (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.
If a civil servant is granted minimum of a given grade without the H right to earn increments of that grade it cannot be said that he has been appointed to that grade. It only means that he has been given fixed pay and not the grade. Therefore, as long as he draws the fixed pay, it will not be deemed that he has entered the grade. His "continuous appointment in the grade", within the meaning of the rule reproduced above will begin when he starts getting the increments. Thus, the seniority will be counted from the date when he is awarded the running scale, not from the date he started receiving the fixed pay.
17. In the instant case, it is not controverted that respondent No,1 was enjoying fixed pay scale which was the minimum of Grade B-14 and when he passed B.Ed. Examination, he was promoted and was awarded the running pay scale of Grade B-14 or as a result of revision of pay scale of Grade B-16.
Thus, in other words, he was given running pay scale B-16 after passing his B.Ed. Examination in 1987. Therefore, there is no question that he would be senior to those who having qualified as B.Ed. earlier were promoted to running pay scale of grade B-14, or B-16 before his promotion to running pay scale of grade B-14 or B-16. The divergent stands taken by the Secretary Education and the Director Education, each of them claiming that his point of view was in consonance with the dictum of this Court reported as Azad Government and another v. Zia-ud-Din Abdul Hamid and others (1993 SCR 151) is of no avail because the said view does not lay down correct law as is evident from the following observations made in the said case:-- "In the present case while promoting the pro forma-respondents to Selection Grade 16 the date of their passing the B.Ed. Examination was taken into account as would appear from Column 8 of the seniority list and not the date of grant of scale 14 to them. No law or rule has been referred to by the learned counsel for the appellant nor we have been able to lay our hands on any such law under which the passing of the B.Ed. examination was a pre-requisite for promotion to selection grade in scale 16. It was only the date of the grant of scale 14 to the B.Ed. trained graduates which ought to have been considered while granting the selection grade to Senior Teachers but, as said earlier, the impugned seniority list of selection grade to Senior Teachers was determined solely on the basis of the dates of their passing B.Ed. Examination and since the respondent had passed the said examination later than that of preformat respondents he was ranked junior to them in the impugned seniority list."
Obviously, in that case, it was not argued or brought to the notice of the Court that the contending parties were enjoying different pay scales, i,e,, minimum of pay scale of the grade was enjoyed by a teacher who was not qualified as B.Ed. while B.Ed. trained teachers were enjoying running pay scale of Grade B-14. Thus, the view taken in the case reported as Azad Government and another v.
Zia-ud-Din Abdul Hamid and others (1993 SCR 151) is based on erroneous assumption of facts that both the contending parties were enjoying same pay in B-14. Consequently, the view taken in the aforesaid authority as indicated above is herby overruled.
In the light of what has been stated above, we accept the appeal and set aside the impugned judgment of the High Court with no order as to the costs.