' BASHARAT AHMAD SHAIKH, J.---These four appeals, which have been filed with leave of the Court, arise out of a single judgment of the Federal Service Tribunal Islamabad, which also acts as the Service Tribunal for Azad Jammu and Kashmir Council. The dispute in these appeals relates to seniority and promotion of five contesting civil servants which are inter connected. Common questions of law are also involved. Therefore, these appeals are being disposed of by this single judgment.
2. The service rights of five civil servants, namely, Muhammad Nazir Abbasi, Abdul Latif, Muhammad Khan, Zulfiqar Ali Mirza and Muhammad Hameed are involved in these appeals. They belong to the Taxation Group under the Azad Jammu and Kashmir Council. They held the posts of Inspector Income Tax-cum-Superintendent Excise and Taxation (B-14) for a long time. Zulfiqar Ali Mirza and Muhammad Hameed were promoted on acting charge basis on 26th September, 1995, as Income Tax Officer-cumSuperintendent Central Excise and Taxation in B.16. This order gave rise to a long drawn litigation consisting of two rounds. The present appeals are culmination of the second round. In the previous round a controversy about qualifying marks in the departmental examination was resolved by this Court. Before adverting to the merits of the present appeals, it is necessary to first note the facts and the ratio of the previous judgment.
3. It may first be stated that inter se seniority of the five civil servants as Inspectors (BPS.14) was not in dispute even in the previous round. The abovementioned inter se seniority is as follows:--
(i) Muhammad Nazir Abbasi.
(ii) Abdul Latif.
(iii) Muhammad Khan.
(iv) Zulfiqar Ali Mirza.
(v) Muhammad Hameed.
4. On 26th September, 1995, Zulfiqar Ali Mirza and Muhammad Hameed Khan, placed at fourth and fifth places in seniority, were promoted as Income Tax Officers (B.16) on acting charge basis by ignoring the other three civil servants. The reason given by the competent Authority in the Azad Jammu and Kashmir Council was that an Inspector Income Tax could not be promoted as Income Tax Officer without passing the departmental examination by obtaining a minimum fifty per cent.
Marks. The matter was taken to the Service Tribunal by Abdul Latif and Muhammad Khan by filing separate appeals. These appeals were decided by different benches of the Service Tribunal which returned contradictory verdicts. The matter was then brought to this Court and was decided in C.A.
No,86 of 1996 titled Abdul Latif v. Secretary, Azad Jammu and Kashmir Council and C.A. No,82 of 1996 titled Zulfiqar Ali Mirza and another v. Azad Jammu and Kashmir Council and others, both decided on 25th March, 1997, by holding that it was not a condition for promotion that fifty per cent.
Marks should be obtained while passing the departmental examination. This Court directed the Azad Jammu and Kashmir Council to review the matter of promotion of Abdul Latif for acting charge or regular promotion, as the case may be, in light of the above dictum.
5. Consequently, Azad Jammu and Kashmir Council Secretariat issued two notifications on 15th July, 1997. By one of them the acting charge promotions of Muhammad Hameed and Zulfiqar Ali Mirza were cancelled. By the other notification Zulfiqar Ali Mirza, Muhammad Hameed, Muhammad Khan and Abdul Latif were promoted on acting charge basis with immediate effect as Income Tax Officers (B.16). In this notification the names of the four civil servants were entered in the following order:--
(i) Muhammad Hameed Khan.
(ii) Zulfiqar Ali Mirza.
(iii) Muhammad Khan.
(iv) Abdul Latif.
6. This order gave rise to a fresh dispute. Muhammad Nazir Abbasi was senior most amongst the five contesting civil servants but he was not given promotion although he had passed the departmental examination and he claimed that he was entitled to be promoted in light of the dictum of this Court in the previous round. He, therefore, filed appeal before the Service Tribunal after exhausting the departmental remedy. Abdul Latif, Muhammad Khan and Zulfiqar Ali Mirza also filed appeals.
7. In his appeal the precise point raised by Muhammad Nazir Abbasi was that he was senior to Muhammad Hameed, Zulfiqar Ali Mirza, Muhammad Khan and Abdul Latif, and was entitled to be promoted in light of the dictum of this Court in the previous round. The reply given by the official respondents was that while it was true that Muhammad Nazir Abbasi had passed the departmental examination but Muhammad Hameed, Zulfiqar Ali Mirza and Muhammad Khan had passed the said examination earlier than Muhammad Nazir Abbasi. They took the position that a panel of Inspectors eligible for promotion to B.16 was drawn up in which the names of Inspectors were entered from the date of passing the departmental examination because it is only upon passing the examination that an Inspector became qualified for promotion. In the panel Muhammad Hameed was placed at No,1 because he qualified the examination in the 20th Examination. Zulfiqar Ali Mirza and Muhammad Khan were placed at Nos,2 and 3. It was stated that they passed the examination together in the 21st session but Muhammad Khan secured less marks and, for that reason he was placed below although he was senior. It was similarly stated that Abdul Latif and Muhammad Nazir Abbasi passed the departmental examination together in the 22nd session but Muhammad Nazir Abbasi, although senior, obtained less marks and for that reason his name was entered below the name of Abdul Latif in the promotion panel.
8. In his appeal before the Service Tribunal, Abdul Latif raised the grievance that although he had been promoted but he was unlawfully assigned a junior position in the notification by which four promotions were ordered. He asserted that his name should have been shown in the promotion notification at No,1 because he was senior most Inspector Income Tax in BPS.14. He stated that Muhammad Hameed, Zulfiqar Ali Mirza and Muhammad Khan were junior to him but they had been assigned higher position in the promotion notification.
9. The reply of the official respondents was the same as in the case of Muhammad Nazir Abbasi, namely, that those who had passed the examination earlier had prior right and, amongst those who had passed examination together, one who secured more marks was placed higher. In the appeal filed by him, Muhammad Khan adopted the position that he was entitled to be shown at No,2 in the promotion notification but had been placed at No,3. He also contended that he was senior to respondents Nos,3 and 4. The reply of the official respondents was the same as mentioned above.
10. Zulfiqar Ali Mirza stated in his appeal that he was duly promoted vide notification issued on 26th September, 1995, and he continued as such till 15th July, 1997, and his promotion had been cancelled due to wrong interpretation of the judgment of the Supreme Court in the previous round.
11. All the four appeals mentioned above have been disposed of by the Service Tribunal by a single Judgment. Muhammad Nazir Abbasi has accepted the judgment of the Service Tribunal while all the other civil servants have filed these four appeals with leave of the Court. Muhammad Hameed has filed three appeals while Abdul Latif, Muhammad Khan and Zulfiqar Ali Mirza have filed a joint appeal in which the private respondent is Muhammad Nazir Abbasi.
12. The Service Tribunal has rejected the view point of the official respondents and the appeal of Muhammad Nazir Abbasi has been accepted. The Tribunal has directed that he shall be promoted from 25th May, 1990, on regular basis with all back benefits.
13. We may first take up Civil Appeal No,193 of 1998. Muhammad Hameed Khan has impleaded, apart from official functionaries, Muhammad Nazir Abbasi as the private respondent. This appeal turns on a point which is not common with other appeals. Mr. M. Tabassum Aftab Alvi, the learned counsel for the appellant, raised the objection that in the appeal filed by him before the Service Tribunal, Muhammad Nazir Abbasi did not implead Secretary of the Azad Jammu and Kashmir Council as a respondent which is a mandatory requirement of law and, therefore, the appeal not being properly constituted, should have been dismissed on that short ground. In support of his contention the learned counsel relied on rule 7 of the (Pakistan) Service Tribunal (Procedure) Rules, 1974, and also a judgment of this Court reported as Muhammad Ashraf Khan Kayani v. Azad Government and 4 others (1998 PLC (C.S) 110). The said rules were framed by the Federal Government in exercise of powers conferred by section 8 of the Service Tribunals Act, 1973. Rule 7 lays down as follows:-- "(7) In every memorandum of appeal, the competent Authority against whose orders the appeal is preferred and any other party to the dispute shall be shown as respondents."
14. In Muhammad Ashraf Khan Kayani's case this Court held in para. 15 of the report that under rule 8 of the Azad Jammu and Kashmir Tribunal (Procedure) Rules, 1976, which has the same phraseology as rule 7 under reference, it is a mandatory requirement of law that the competent Authority be impleaded as a respondent and if the competent Authority is not arrayed as a respondent, neither the appeal is competent nor an effective order can be passed. It was held in para. 13 of the report that:- "The requirement that the competent Authority be impleaded as a party is analogous to a similar requirement in writ petition. The basic requirement of law in exercise of writ jurisdiction of High Court is that if an order of a public functionary has to be challenged in the High Court through a writ petition that functionary must be impleaded as a party. Similarly if a direction or prohibition is sought against a public functionary that functionary is a necessary party without which neither a writ petition is maintainable nor an effective order can be passed. Requirement of the law in dealing with service 'matter is that if an order adversely affecting the interest of a particular party has been passed by a competent Authority, that Authority must be impleaded as real respondent in an appeal before the Service Tribunal. Service Tribunal Act, and the rules framed thereunder are special statutes and a specific provision being provided in the rules i,e, rule 8, any party being found guilty of violation of the rules is not entitled to any relief and the appeal filed by that party without impleading the competent Authority as respondent, the same becomes incompetent."
15. Briefly stated facts of the case were that the learned Judges of the Azad Jammu and Kashmir High Court determined the seniority of District and Sessions Judges with the approval of the Government. Muhammad Ashraf Kayani challenged the seniority list by filing appeal before the Service Tribunal which was dismissed. He was subsequently granted leave to appeal in this Court.
A new point was taken on behalf of the other side that the appeal filed by Muhammad Ashraf Kayani entitled dismissal because he had not impleaded the High Court as one of the respondents.
It was contended that the Registrar of the High Court was impleaded as a respondent but he could not be a substitute for the High Court. This plea, raised for the first time, with permission of the Court, during arguments in this Court, was upheld and, following the earlier judgments in Muhammad Resham Khan v, Chairman, Inspection Team and 3 others 1990 CLC 1355, Mirza Lal Hussain v. Custodian of Evacuee Property (1992 SCR 214) and some unreported cases, the appeal filed by Muhammad Ashraf Kayani before the Service Tribunal was dismissed on that score.
16. Mr. Abdul Rashid Abbasi, learned counsel for respondent Muhammad Nazir Abbasi, argued that the order against which appeal was filed was issued by the Member Board of Revenue of the Azad Jammu and Kashmir Council who was duly impleaded as a respondent. This explanation is not acceptable in view of the mandatory requirement of rule 7 (supra) because the order was passed by Member Board of Revenue of the Azad Jammu and Kashmir Council but it was specifically mentioned in it that the order was being issued with approval of the competent Authority which clearly indicated that Member Board of Revenue was not the competent Authority but he had only issued the order. The order may be usefully reproduced:-- "AZAD JAMMU AND KASHMIR COUNCIL ' SECRETARIAT ' AJ&K COUNCIL ' BOARD OF REVENUE ' Sector F-5/2 ' Islamabad, the 15th July, 1997.
' NOTIFCATION ' No,E-II-2/4/96-AJKC.---Consequent upon the Supreme Court of Azad Jammu and Kashmir's Judgments, dated 25th March, 1997, in Civil Appeals Nos,82 of 1996 and 86 of 1996 and after redeclaration of the Results of Departmental Examinations in the light of High Court of Azad Jammu and Kashmir's Judgment, dated 31st May, 1997, and due consideration afresh by the Standing Departmental Promotion Committee and thereafter, on approval of the Competent Authority, the Acting Charge appointments of M/s Zulfiqar Ali Mirza and Muhammad Hameed Khan, Inspectors Income Tax-cum-Excise and Taxation (BS.14 S/Scale)/ Deputy Superintendent Central Excise (BS.14) made vide Notification No,E-II-2/5/93-AJKC, dated 26-9-1995, to higher posts of Income Tax Officer-cum-Superintendents Central Excise/Assistant Excise and Taxation Officers (BS.16) are hereby cancelled with immediate effect.
(Sd.)
(JALEES AHMAD SIDDIQI), ' SENIOR JOINT SECRETARY/MEMBER."
17. It was pointed out by Mr. M. Tabassum Aftab Alvi, the learned counsel for the appellant, that it is laid down in rule 6 of the Civil Servants (Appointment, Promotion, and Transfer) Rules, 1973, that Secretary of the Ministry/Division or head of the department, if in B-20, shall be the appointing authority for posts in B-3 to 16. Mr. M. TAbassum Aftab Alvi also pointed out that when Muhammad Nazir Abbasi filed departmental appeal against the order of the 15th July, 1997, subsequently challenged before the Service Tribunal, he addressed the appeal to "Honourable Prime Minister Islamic Republic of Pakistan and Chairman Azad Jammu and Kashmir Council" which was only maintainable if the original order has been passed by the Secretary of the Azad Jammu and Kashmir Council. He contended that if the original order had been passed by Member Board of Revenue then Muhammad Nazir Abbasi would have filed appeal before the Secretary of the Azad Jammu and Kashmir Council and not the Chairman.
18. We find force in this objection. It is clear from the phraseology of the notification reproduced above as well as the two submissions of Mr. M. Tabassum Aftab Alvi, mentioned above, that Member Board of Revenue, who was impleaded as a respondent was not the authority who had passed the order challenged by Muhammad Nazir Abbasi. Thus, it is clear that the competent Authority was not impleaded as respondent. The aforesaid conclusion is fortified by the fact that against the same order three other appeals were filed before the Service Tribunal and in each of them Secretary Azad Jammu and Kashmir Council was duly impleaded as a respondent. The appeals are:--
(1) AppeaL No, 841 (R) of 1997 titled Abdul Latif v. Secretary Azad Jammu and Kashmir Council and 4 others.
(2) Appeal No, 878 (R) of 1997 titled Mirza Zulfiqar Ali v. Secretary Azad Jammu and Kashmir Council and 4 others; and
(3) Appeal No, 842 (R) of 1997 titled Muhammad Khan v. Secretary Azad Jammu and Kashmir Council and 4 others.
' These are the appeals which were disposed of by the Service Tribunal by the judgment under appeal. Following Muhammad Ashraf Kayani's case we hold that the appeal filed by Muhammad Nazir Abbasi was liable to be dismissed on the short ground that it had been filed in violation of mandatory requirement of rule 7 of the Service Tribunals (Procedure) Rules. Consequently C.A.
No,193 of 1998 is accepted and the order passed by the Service Tribunal in Appeal No, 875(R) of 1997 titled Muhammad Nazir Abbasi v. Azad Jammu and Kashmir Council etc. Is vacated and the appeal filed by Muhammad Nazir Abbasi before the Service Tribunal is dismissed without any order as to costs.
19. In the previous para. We have ordered the dismissal of the appeal filed by Muhammad Nazir Abbasi before the Federal Service Tribunal and has also vacated the judgment of the Federal Service Tribunal by which the said appeal was accepted. Appeal No, 135 (Mpr. ) of 1998 titled Ch. Abdul Latif and others. v. Secretary Azad Jammu and Kashmir Council and others, has been filed by Ch. Abdul Latif, Ch. Muhammad Khan and Zulfiqar Ali Mirza in order to challenge the order passed by the Federal Service Tribunal in the appeal filed by Muhammad Nazir Abbasi. Therefore, the purpose for which Ch. Abdul Latif and others have filed the appeal has been achieved. However, there is another aspect to which we would like to advert. Leaving aside the other matters which will be discussed later on, two things need to be stated here. First that the Service Tribunal has, ordered the regular promotion of Muhammad Nazir Abbasi but he had not until that stage of time cleared by the Departmental Promotion Committee which is a mandatory requirement for promotion.
Secondly, 25th May, 1990, is a date which has no foundation regarding promotion of Muhammad Nazir Abbasi. This date seems to have been taken from the memorandum of appeal filed by Muhammad Nazir Abbasi in the Service Tribunal in which he stated that he was entitled to be granted Selection Grade (B-16) as Inspector Income Tax. He did not state that a post of Income-tax Officer (B-16) was vacant on that date or that he was due for promotion on the above date. It is even otherwise not on the record that there was a vacant post of Income Tax Officer in (B-16) on 25th May, 1990, against which Muhammad Nazir Abbasi's promotion has been ordered. Fact of the matter is that from amongst the five civil servants who were involved in the present litigation the first promotions to the post of Income Tax Officer (B-16) were ordered on 26th September, 1995, when Zulfiqar Ali Mirza and Muhammad Hameed were promoted on acting charge basis. These are the promotions which were challenged by Abdul Latif whose appeal, being Appeal No, 86 of 1990, already discussed in detail, was accepted. Therefore, according to the record if there was an available post it was on 26th September, 1995, at the earliest. Therefore, the order passed by the Federal Service Tribunal in favour of Muhammad Nazir Abbasi in the appeal under reference is clearly unsustainable. Therefore, Appeal No,135 (Mpr.) of 1998 is accepted and the order passed by the Federal Service Tribunal in Appeal No, 875 of 1997 titled Muhammad Nazir Abbasi v. Azad Jammu and Kashmir Council is vacated.
20. We now turn to the other two appeals, also filed by Muhammad Hameed. In the other three appeals the Service Tribunal passed the following order:-- "Similarly official respondents are directed to appoint all the incumbents to B-16 on regular basis from due dates keeping in view their inter se seniority as in the lower posts i,e, B-14 which seniority will remain intact in case of their promotion to B-16 unless someone has otherwise been adversely affected but no such adverse material is available on the record and as such their inter se seniority as in the lower grade i,e, B-14 as Inspector, Income-tax-cum-Excise and Taxation will remain intact as required under rule 3(b) of the Civil Servants (Seniority) Rules, 1993.
' All the appeals are hereby disposed of in the above terms with no order as to costs. All concerned may be informed accordingly."
21. The promotions challenged before the Service Tribunal were based on the following formula:-
(a) An Inspector who passed the departmental examination earlier was given priority; and
(b) Where more than two or more Inspectors had passed the departmental examination together, one who had obtained more marks was placed higher.
' No rule or law has been put forward in the Service Tribunal or in this Court to support this basis.
Under section 9 of the Civil Servants Act a Civil Servant possessing prescribed qualifications is eligible for promotion to higher post reserved for departmental promotion. According to the departmental rules, Inspectors who had passed the departmental examination and had completed five years service were eligible for promotion to the post of Income Tax Officer-cum- Superintendent B-16. The other condition necessary for promotion was that the case should have been cleared by the Departmental Promotion Committee. It follows that date of passing the departmental examination or the quantum of marks obtained in the said examination had no nexus with the question of promotion. Section 9 (supra) lays down that against non-selection posts promotions have to be made on the basis of seniority-cum-fitness and in case of selection posts, on the basis of selection on merit. It is not on the record that the post of Income Tax Officer B-16 was ever designated as selection post. The result is that the said post has to be treated as a non- selection post against which promotion has to be made on the basis of seniority-cum-fitness. It follows that if on a given date a person has passed the departmental examination he has the right to be considered for promotion on the basis of seniority irrespective of the date of passing of the departmental examination or the marks obtained by him. Therefore, if he is found fit by the selection authority he Us to be promoted. On this point the direction given by the Service:Tribunal is in consonance with the legal position` discussed discussed above and we have no hesitation in upholding it.
22. The direction has also been given by the Service Tribunal that promotion to the contesting civil servants may be given on regular basis from due dates. The Service Tribunal observed that civil servants involved in the present litigation have not been properly dealt with by the official respondents in the Azad Jammu and Kashmir Council Secretariat. Posts in B-16 fell vacant as early in 1995 but no promotion on regular basis has so for been made. We have noticed that promotions made in 1995 and the promotions which are subject-matter of these appeals were ordered on acting charge basis, but the provision relating to acting charge basis was not applicable to the situation. Rule 8(b) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, which is the relevant set of rules, reads as follows:-- "8-B.(1) Where the appointing authority considers it to be in the public interest to fill a post reserved under the rules for departmental promotion and the most senior civil servant belonging to the cadre or service concerned who is otherwise eligible for promotion does not possess the specified length of service the authority may appoint him to that post on acting charge basis.
(2) So long as a civil servant holds the acting charge appointment, a civil servant junior to him shall not be considered for regular promotion but may be appointed on acting charge basis to a higher post."
23. It is clear from the rule reproduced above that appointment on acting charge basis can be made if a post is vacant but the most senior civil servant, who is otherwise eligible for promotion, has not completed the required length of service. It is also clear that it is only the said senior most civil servant who can be promoted under rule 8(b). It follows that if the most senior civil servant is fit for promotion and he also possesses the specified length of service there is no room for appointment on acting charge basis.
24. In the present case a situation to which rule 8-B, reproduced above, applies did not exist. It is expected that if a post falls vacant, the matter should be referred to the Departmental Promotion Committee as early as possible and promotion should be made on the basis of the recommendations of the Selection Committee. In the present case there was no justification for dragging the matter for such a long time. No reason has been brought to our notice as to why promotion on regular basis was not orderd when posts were available: Inspectors had passed the departmental examination and also their length of service was complete. Therefore, the observations made by the learned Members of the Service Tribunal are well-founded and we have no hesitation in not only approving them but also in making an observation of our own that such practice should be immediately brought to an end. Therefore, we uphold the direction that promotions in the present case be made on regular basis.
25. We may also observe that if vacant posts had been filled in as and when the same fell vacant the question of giving priority to an Inspector who had passed the departmental examination earlier would not have arisen.
26. The direction given by the Service Tribunal that all incumbents to posts in B-16 should be promoted from due dates is also correct. Ante-dating is prerogative of the Government and the Service Tribunal has left that prerogative with the Government. Since all other conditions seem to have been fulfilled, it will be just for the Azad Jammu and Kashmir Council to give ante-date promotions to the civil servants involved in the present litigation according to justice of each case from the dates on which the posts under reference fell vacant keeping in view the other legal requirements. With these observations C.A. No, 191 titled Muhammad Hameed Khan v. Abdul Latif and others and C.A. No, 192 titled Muhammad Hameed Khan v Muhammad Khan and others are dismissed.
' To summarize the result,--
(A) Civil Appeal No, 135 of 1998 titled Ch. Abdul Latif and others v. Secretary Azad Jammu and Kashmir Council and others is accepted and the order of the Service Tribunal passed in Appeal No, 875(R) of 1997 titled Muhammad Nazir Abbasi v. Azad Jammu and Kashmir Council and others is vacated and the appeal filed by Muhammad Nazir Abbasi before the Service Tribunal stands dismissed.
(B) Civil Appeal No, 191 of 1998 titled Muhammad Hameed Khan v. Abdul Latif stands dismissed.
(C) Civil Appeal No, 192 of 1998 titled Muhammad Hameed Khan v. Muhammad Khan stands dismissed.
(D) Civil Appeal No, 193 of 1998 titled Muhammad Hameed Khan v. Muhammad Nazir Abbasi is accepted and the order passed by the Service Tribunal in Appeal No, 875(R) of 1997 titled Muhammad Nazir Abbasi v. Azad Jammu and Kashmir Council is vacated with the result that the appeal filed by Muhammad Nazir Abbasi shall stand dismissed.