' SARDAR SAID MUHAMMAD KHAN, C.J.---As the above entitled appeals arise out of the same judgment of the High Court, we propose to dispose of the same by the present consolidated judgment.
2. The brief facts giving rise to the above entitled appeals are that respondents Nos, 3 to 15 in Appeal No,1 of 1999 and respondent Nos,3 to 7 in Appeal No,2 of 1999, were appointed as Tehsildars on officiating/acting charge basis on different dates. Subsequently, two notifications were issued by the Government on 25-3-1992; vide Notification No,SM/1556-1681 of 1992, ten of the respondents who were holding the post of Tehsildars on acting charge basis under rule 10-A(2), of the Rules known as the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service)
Rules, 1977 (hereinafter shall be called the Rules), were given promotion as Tehsildars on acting charge basis from the dates given against their names after the recommendations of the concerned Selection Board; vide Notification No,SM/1620-1655, dated 25-3-1992, seventeen Naib- Tehsildars who were holding the posts on officiating basis within the meaning of rule 13(2) of the Rules, were promoted as Tehsildars on the recommendations of the Selection Board from the dates given against their names. It was specifically mentioned in the latter notification that the promotion was on temporary basis and on return of the direct appointees from the training, the said officiating promotees would be reverted to their original posts.
3. The appellants, after exhausting the departmental remedy, filed two separate Appeals Nos,839 and 840 of 1995 before the Service Tribunal challenging the Government notification, dated 16-11- 1994, whereby twenty respondents, who were holding the charge of Tehsildars on acting charge/officiating basis, were appointed on regular basis on the recommendations of the Selection Board; out of the aforesaid twenty Tehsildars, five, who have been arrayed as respondents Nos, 3 to 7 in Appeal No,2 of 1999, titled above were given seniority from 22-6-1986. The grievance of the appellants against the aforesaid notification was that the aforementioned five persons, who have been arrayed as respondents Nos,3 to 7 in Appeal No,2, were given retrospective seniority in violation of the Rules because despite the fact that the appellants were regularly appointed as Tehsildars through initial recruitment vide notification, dated 22-5-1991, they have become junior to the said respondents who were regularly promoted as Tehsildars after them, i,e,, on 16-11-1994.
4. When the aforesaid two Appeals Nos,839 and 840 of 1995 were pending in the Service Tribunal, the appellants, herein, after exhausting the departmental remedy, filed two more Appeals Nos,902 and 903 of 1995 before the Service Tribunal challenging the order/letter, dated 18-12-1994, whereby respondents Nos,3 to 15 in Appeal No,1, entitled above, were purported to have been given retrospective promotion from the dates of their acting/officiating charge basis appointments as Tehsildars. It was contended by the appellants that the aforesaid order which is in form of a letter written by the Secretary Board of Revenue to the department of Accounts in answer to their queries stating that in view of the aforesaid two notifications, dated 25-3-1992, and the notification, dated 16-11-1994, whereby the officiating/acting charge appointees were appointed on regular basis, there is no ambiguity about the dates from which the permanent appointments of the respondents would commence. According to the appellants, the said letter/order had adversely affected the terms and conditions of their service because the, said explanation was subsequently accepted by the Accounts Department and the prornotees-respondents have been given pay and other emoluments from the dates on which they were promoted on acting/officiating charge basis as Tehsildars. This, according to the appellants, would mean that the promotion of the aforesaid respondents have been given retrospective effect which, in turn, would ultimately adversely affect their seniority. It was also the case of the appellants before the Service Tribunal that they had no knowledge of the letter/order, dated 18-12-1994 and the same was not communicated to them.
Thus, they also sought the condonation of delay in seeking the departmental remedy which resulted in belated appeals to the Service Tribunal.
5. After taking necessary proceedings in the aforesaid four appeals, the Service Tribunal disposed of the same by a consolidated judgment. So far as Appeals Nos, 839 and 840 of 1995 were concerned, it was held by the Service Tribunal that the ante-dated promotion of the respondents from the dates when they were appointed on acting/officiating charge basis, was not violative of law because after the enforcement of Naib-Tehsildari and Tehsildari Rules of 1980, there were 25 vacancies of Tehsildars out of which 15 were to be filled in by promotion while ten were to be filled in through direct recruitment. Thus, according to the Service Tribunal, the respondents were appointed on acting/officiating charge basis on the posts which were reserved for the departmental promotion. Therefore, the Service Tribunal held that despite the fact that the promotees-respondents were permanently appointed as Tehsildars on 16-11-1994, their promotions were rightly given retrospective effect and similarly respondents Nos, 3 to 7 in Appeal No,2, entitled above, were also rightly given seniority from 22-4-1986. So far as Appeals Nos,902 and 903 filed before the Service Tribunal were concerned, they were dismissed on simple grounds that the letter written by the Secretary Board of Revenue on 18-12-1994 to the Accounts Department did not amount to an order, rather the same was an explanation of Rules which was not appealable and that even otherwise, the appeals before the Service Tribunal were time-barred as the departmental remedy was sought beyond the period of thirty days prescribed under the relevant law.
6. We have heard the arguments and perused the record. It has been contended by Raja Muhammad Hanif Khan, Advocate, the learned counsel for the appellants, that the Service Tribunal has committed an error in dismissing the appeals filed by the appellants, herein. The learned counsel has argued that the appellants, who were appointed as Tehsildars on 22-5-1991 on the recommendations of the Public Service Commission through initial recruitment, were sent for training and some of the respondents were appointed on officiating charge basis in their place as is evident from the Notification No,SM/1620-1655, dated 5-3-1992, according to which they were to be reverted to their original posts on the assumption of the charge by the appellants and others after completion of their training. He has further argued that it is well settled principle of law that the seniority of a civil servant, whether appointed by initial recruitment or by promotion, would start from his regular appointment. The learned counsel has referred to rules 10 and 13 of the Rules and has submitted that promotion on officiating or acting charge basis does not invest any right in the concerned civil servant to claim retrospective promotion or seniority from the date of such appointment. The learned counsel has maintained that at the relevant time, only the Government could give retrospective effect to the promotion of the respondents if it was just and equitable to do so. The learned counsel has submitted that the notifications issued on 25-3-1992, stipulate the retrospective promotion of the respondents on acting charge basis and officiating basis and not promotion on regular basis. According to the learned counsel, order, dated 16-11-1994, whereby the respondents promotees were permanently appointed as Tehsildars, does not stipulate that the regular promotion of the respondents would commence from the dates of their appointments on officiating or acting charge basis and, thus, would be operative retrospectively. The learned counsel has argued that notifications, dated 25-3-1992 given retrospective effect to the officiating/acting charge appointments of the respondents and not to their regular appointments which were made vide notification, dated 16-11-1994. The learned counsel has maintained that when the regular appointments on permanent basis of the respondents were made vide notification, dated 16-11-1994, how their regular promotions can be given retrospective effect on 25-3-1992 when the respondents-promotees were holding the posts either on acting charge basis or on officiating basis. The learned counsel has also maintained that in fact no post for promotion was available under the Azad Jammu and Kashmir Naih-Tehsildari and Tehsildari Rules of 1980 according to which the quota was fixed for direct recruitment and promotees as fifty each. The learned counsel has submitted that it was for this reason in the year 1991, that the ratio of the quota between the direct appointees and the promotees was changed as 30:70 to give undue benefit to the respondents. According to the learned counsel for -the appellants as some of the respondents were appointed against the quota reserved for direct recruitment, they could not be accommodated on the basis of previous ratio of the quota which was fixed in the Rules in the year 1980. He has further maintained that even otherwise, the respondents, herein, were appointed as Tehsildars on officiating/acting charge basis before the enforcement of the rules of 1991, whereby the ratio of the quota was changed from 50:50 to 30:70 for the two categories. The learned counsel has also submitted that neither the retrospective promotion can be ordered under section 22 of the Civil Servants Act nor otherwise the retrospective seniority can be given to a civil servant which adversely affects the seniority of other concerned civil servants. The learned counsel has argued that even if it is assumed for the sake of arguments that the respondents were holding the posts on officiating/acting charge basis against the quota reserved for departmental promotion, they could not be given seniority, qua, the appellants who were regularly appointed in the year 1991 whereas the respondents-promotees were regularly promoted in the year 1994. The learned counsel has submitted that it is well-settled principle of law that seniority of a civil servant in a grade, whether by direct recruitment or by promotion, would commence from the date of his regular promotion and not from the date of his temporary promotion on officiating/acting charge basis. The learned counsel has submitted that under rule 10-A(2) of the Rules, the promotion on acting charge basis can only be made if the civil servant who is otherwise eligible for promotion does not possess the specified length of service for regular promotion. Thus, the learned counsel has contended that the presumption is that the respondent-promotees were promoted on acting charge basis because they did not possess the requisite length of service for regular promotion on the relevant dates.
Thus, he has contended that they cannot claim the notional promotion from the dates when they were promoted on acting charge basis. The learned counsel has also argued that rule 13 shows that officiating promotion can be made only if a post is vacant as a result of 'deputation, leave or appointment on acting charge basis of the regular incumbent or is reserved under the rules to be filled in by transfer and not otherwise. The learned counsel has submitted that officiating promotion of some of the respondents is violative of sub-rule (1) of rule 13 because it is not the case of the concerned respondents that the posts occupied by them on officiating basis were vacant as a result of any of the eventualities stipulated in the aforesaid rule. He has also drawn our attention to sub-rule (3) of rule 13 according to which an officiating promotion shall not concern any right of promotion on regular basis and the same was liable to be terminated when an eligible person is available for promotion on regular basis. Thus, according to the learned counsel for the appellants, the promotions on officiating and acting charge basis do not entitle the respondents to claim notional promotion or seniority against the appellants. The learned counsel has further argued that the Service Tribunal committed an error in dismissing Appeals Nos,902 and 903, referred to above, on the ground that the same were directed against a letter written by Secretary Board of Revenue, dated 8-12-1994 which was not an order and was not appealable. He has argued that an order can be made in different forms and if a letter adversely affects the rights of a civil servant, the same can be challenged before the proper authority by filing an appeal or review etc. The learned counsel has argued that according to the letter/order, dated 8-12-1994, the respondents have been held entitled to the ante-dated promotion and, thus, the seniority of the appellants is adversely affected. Thus, according to the learned counsel, the appellants were legally competent to assail the said letter by filing appeals to the Service Tribunal after exhausting the departmental remedy. While dealing with the question of limitation, he has argued that it was specifically mentioned in paragraph 6 of the memos of appeals filed before the Service Tribunal that the impugned order/letter, dated 8-12-1994 was not in the knowledge of the appellants earlier and when they became aware of it, they promptly sought the departmental remedy and thereafter, filed appeals to the Service Tribunal. The contents of the appeals were supported by affidavits and, thus, the Service Tribunal was bound to consider the question of condonation of delay in seeking departmental remedy or for that matter in filing the appeals to the Service Tribunal. But the Service Tribunal did not consider the question of condonation of delay at all and also held that the said appeals were time-barred. The learned counsel has submitted that no counter-affidavit was filed by the respondents to negate the stand of the appellant that they were not in the knowledge of the said letter/order. The learned counsel has further submitted that residuary powers under section 22 of the Civil Servants Act, for giving ante-dated seniority notionarpromotion cannot be resorted to if the interest of other civil servants is adversely affected. He argued that as the ante-dated seniority or retrospective promotion would adversely affect the seniority of the appellants, the same cannot be given in exercise of the powers by the Government under section 22 of the Civil Servants Act.
The learned counsel has cited the following authorities in support of his contentions:-- ' In case reported as Muhammad Arshad Saeed, D.I.-G. Police v. Government of Pakistan through Secretary, Establishment Division, . NIslamabad (1994 SCMR 1033), it has been held that Service Tribunal committed an error in holding that policy letter of Government of a specified date didn't amount to an order or a departmental order or a final order and thus, was not appealable. It was observed that an order for purposes of section 4 of Service Tribunals Act can have many forms; it may be a general order or a particular order directed against any individual civil servant or an order may be a policy decision which may give grievance to a civil servant by adversely affecting the terms and conditions of his service.
' In case reported as Inayat Ali and another v. Manzoor Ullah and another (1987 SCMR 407) discussing the provisions contained in section 4 of the Punjab Service Tribunal Act, 1974, section 7
(2) of West Pakistan Agricultural Service (Research Wing) (Class-II) Rules, 1963, and rule 9(i)(b) of West Pakistan Agricultural Service (Research Wing) (Class-II) Rules, 1963, it was observed that the petitioner who was first appointed as Assistant Oil Technologist Class-II on ad hoc basis proceeded abroad for training and on his return he was allowed to draw salary of Agricultural Assistant as no post in the higher grade was available to adjust him. He was again promoted on ad hoc basis to the post of Assistant Agricultural Chemist Class-II and latter on was confirmed as such. The Service Tribunal treated his officiating promotion as an appointment. It was observed by the Supreme Court that words "officiating" and "appointment" have different connotation. It was further observed that promotion of the petitioner could not be held to be a continuous appointments within the meaning of relevant rules and that seniority in a grade to which a civil servant is promoted takes effect from the date of his regular appointment to such post.
' In case reported as Muhammad Iqbal Khokhar v. The Government of the Punjab, Lahore (PLD 1991 SC 35), it was held that a comparative study of section 8 of the North-West Frontier Province Civil Servants Act, 1973, section 8 of the Sindh Civil Servants Act, 1974, and section 8 of the Punjab Civil Servants Act, 1974, shows that in Punjab the right of seniority of a civil servant has been recognized as a vested right unlike the other Provinces. Thus, it was observed that in view of the provisions contained in section 22 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, read with section 8 rule Li)(a) of West Pakistan Service of Engineers (Building and Roads)
(Class-I), Rules 1967, the power of the Governor to relax the relevant rule conferring seniority retrospectively in a manner which was violate of section 8 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 or the West Pakistan Civil Engineers Rules was ultra vires of section 22 of the Punjab Civil Servants Act, 1974. The powers of the Government, Prime Minister and the Governor with regard to the relaxation of rules were examined and it was held that order being unjust and inequitable within the meaning of section 22 of the Punjab Servants Act, 1974 was not sustainable.
' In case reported as Dr. Sabir Zameer Siddiqui v. Mian Abdul Malik and 4 others (PLD 1991 SC 226) it has been observed that an ad hoc appointment could not be regularised in a manner so as to adversely affect the seniority right of other civil servants.
' In case reported as Muhammad Nawaz Khan v. Muhammad Ijaz Rashid (PLD 1993 SC 10=1993 PLC (C.S.) 338). It has been observed that ratio of the judgments as well as reasoning advanced by the Service Tribunal, the statutory provisions and rules is that the appointees by direct recruitment against reserved seats having fallen vacant earlier in time, shall rank senior to the promotees holding officiating appointments though promoted earlier than direct recruitment.
' In case reported as Asif Ali Khan v. Secretary to the Government of Punjab Communication and Works Department Lahore (1992 SCMR 198) the facts were that the appellants before the Supreme Court were appointed through promotion on ad hoc basis to the posts which were meant for direct recruitment when no vacancy for departmental promotions was available. The respondents were subsequently appointed on the recommendation of Public Service Commission to the posts which were held by the appellants on ad hoc basis. Afterwards, their appointments/promotions were also regularised and they were shown senior to the direct appointees. The Service Tribunal accepted the appeal preferred by the direct appointees observing that departmental promotion was against the vacancies of direct recruits pending their selection by the Public Service Commission and that they were in excess of the departmental quota reserved for promotion. Thus, the direct appointees were declared senior to the departmental promotees. The appeal filed by the departmental promotees to the Supreme Court was dismissed and findings of the Service Tribunal were upheld.
' In case reported as Muhammad Rahim, Lecturer v. Muhammad Aurangzeb, Lecturer (1986 SCMR 873), it was held that seniority of the civil servants was of two categories. One being appointed under Rules and other category being recruited under Orders. In absence of any express provisions in Order/Notification for recruitment, inter se seniority of those recruited under Rules and those recruited under Order after their merger, the general rules regarding seniority can be followed, provided the inter se seniority of two categories cannot be determined in view of existing Rules.
' In case reported as Government of N.-W.F.P. Through Chief Secretary v. Muhammad Ajmal (1986 SCMR 2007), petition for leave to appeal was dismissed and findings of the Service Tribunal were maintained observing that no rule or law was cited to support the ante-date promotion. The reliance was placed on two letters for retrospective promotion but it was observed that the same could not be equated with law and rules.
' In case reported as Sh. Manzoor Abmad v. Azad Government (1995 PLC (C.S.) 59) it was observed that question before the Service Tribunal was not as to whether power under section 22 could be exercised retrospectively or not rather the question was as to whether power vested in Government under section 22 of the Azad Jammu and Kashmir Civil Servants Act could be exercised retrospectively even if the same was detrimental to the seniority of the appellant; the power under section 22 of the Civil Servants Act while passing the order giving it retrospective effect regarding the seniority of a civil servant, cannot be passed if the same adversely affects the seniority of other civil servants. It was observed that residuary powers under section 22 of the Civil Servants Act could be exercised only if it is just and equitable to do so; the same cannot be exercised to give undue advantage to a civil servant in contravention of the relevant law on the subject.
7. Sardar Rafique Mahmood Khan, Advocate, the learned counsel for the respondents, has controverted the arguments advanced on behalf of the learned counsel for the appellants. He has argued that the respondents were adjusted against the seats reserved for the departmental promotion as has been held by the Service Tribunal. The learned counsel has maintained that according to the findings of the Service Tribunal, there were 25 posts of Tehsildars out of which 15 were to be filled in by the departmental promotion while the appointments on the remaining ten were to be made through initial recruitment. Therefore, the learned counsel has argued that the respondents who were already serving on the posts reserved for the departmental promotion on officiating/acting charge basis were rightly given notional promotion from the dates mentioned against their names in the two notifications, dated 25-3-1992. Thus, the learned counsel has contended that in view of the aforesaid notifications, dated 25-3-1992 read with order, dated 16-11- 1994, whereby the appointments of the respondents were regularized on permanent basis, there hardly remains any doubt that the promotions of the respondents, herein, were given retrospective operation. He has further contended that similarly respondents Nos,3 to 7 in Appeal No,2 of 1999, mentioned above, were rightly given seniority from 22-4-1986. The learned counsel has also referred to section 6(6) of the Civil Servants Act, 1976 and has maintained that after the confirmation of the appointments of the respondents, their promotion would commence from the dates of their initial appointments on officiating/acting charge basis and not from 16-11-1994 when they were permanently appointed as Tehsildars. The learned counsel has submitted following authorities in support of his contentions:-- ' In an unreported case titled Sardar Sabir Hussain Khan Abbasi v. Azad Government (Civil Appeal No,16 of 1999 decided on 14-5-1999) the appeal was accepted giving directions to the respondents to promote the appellant with retrospective effect from 15-2-1989 instead of 30-1-1994; it was observed that the promotion of the batchmates of the appellant was given retrospective effect but same was denied to the appellant without any fault on his part because his case was not sent for consideration to the Selection Board when the cases of his batchmates were sent.
' In another unreported case of this Court titled Khawaja Muhammad Ahsan v. Manzoor Ali Khokhar (Civil Appeal No,19 of 1998 decided on 15-6-1998), it has been held that ante-date promotions are within the competence of appropriate authority and if a case so warrants, such as, the vacancy to which the promotion was to be made was in existence and the aggrieved civil servant was also qualified for promotion but was not sent to Selection Board without any fault on his part, he can be given such ante-date promotion. However, the appeal was dismissed observing that as the question of seniority of the appellant was previously turned down by the Service Tribunal but no appeal was filed by the appellants, the matter had become past and closed transaction and cannot be reopened.
' In case reported as Professor Dr. Raja Muhammad Ayub Khan v. Azad Jammu and Kashmir Government (1990 MLD 1283), it was observed that under section 22 of Civil Servants Act, 1976 read with rule 9 of the Civil Servants (Appointment and Conditions of Service) Rules, 1977, seniority could be given retrospective effect to the promotion of a civil servant if it is shown that post to which the concerned civil servant was promoted was vacant and he was also qualified to such promotion. It was observed that it is settled law that an appointment by direct recruitment cannot be given retrospective effect.
' In case reported as Syed Aftab Hussain Shah Garadizi v. Azad Jammu and Kashmir Government through Chief Secretary (1993 PLC (CS) 1659) it has been observed that inter se seniority of a Naib- Tehsildar would be determined in order of merit assigned by the competent Authority, provided that the persons selected for the service in an earlier selection would rank senior to the persons selected later. In case of departmental . Promotion amongst the serving civil servants, seniority would be determined with effect from the date of the their continuous appointment in the grade.
8. We have given due consideration to the arguments raised at the Bar. The first question which needs resolution in the instant case is as to whether the notional promotion was given to the respondents. It is evident from the aforesaid two notifications, dated 25-3-1992 that the respondents, who'were holding the posts of Tehsildars on officiating/acting charge basis, were given notional promotion as officiating/acting charge basis from the dates which have been mentioned against their names. They were not yet promoted on regular basis; they were promoted on regular basis much later, i,e,, on 16-11-1994. The aforesaid notification does not give notional promotion to their regular appointments. Therefore, it cannot be said that the notional promotion given to the respondents from the dates mentioned against their names vide notifications, dated 25-3-1992 was given to their permanent promotion when the said promotion did not exist on the said date. It transpires from the record that there have been correspondence between the Accounts Department and the Board of Revenue with regard to the dates from which the permanent promotion of the respondents started; initially the view of the Accounts Department was that as the notification, dated 16-11-1994 does not give notional promotion to the respondents, they would be deemed to have been appointed on regular basis on 16-11-1994 and not from the dates mentioned in the notifications, dated 25-3-1992. However, after exchanging of some letters on the point, finally a letter was written by the Secretary Board of Revenue to the Accounts Department on 8-12-1994, wherein it was stated that joint reading of the two notifications, dated 25-3-1992, referred to above, and the notification, dated 16-11-1994, would reveal that there was no ambiguity that regular promotion of the respondents would commence from the dates which have been mentioned in the notification, dated 25-3-1992 when the said respondents were holding the posts of Tehsildars on officiating/acting charge basis. It appears that at the long last this explanation was reluctantly accepted by the Accounts Department. The said letter/order was challenged by the appellants vide Appeals Nos,902 and 903 filed before the Service Tribunal. The interpretation given on behalf of the Board of Revenue vide letter/order, dated 8-12-1994 cannot be justified by any stretch of imagination because it offends against the existing facts and rules. It is specifically mentioned in the notifications, dated 25-3-1992. Referred to above, that retrospective effect is given to the promotion of the respondents which was on officiating/acting charge basis.
However, when subsequently, on 16-11-1994, the respondents were promoted on regular basis, it was not recorded in 'the said notification that the regular promotion of the respondents would commence from the dates given against their names in the notifications, dated 25-3-1992; even otherwise, that could not be done because those notifications did not pertain to the regular promotion of the respondents. Therefore, we have no hesitation in holding that the aforesaid interpretation by the Board of Revenue, is not tenable and is of no legal consequence.
9. The next question which needs resolution is as to whether the Service Tribunal was justified to dismiss Appeals Nos,902 and 903 of 1995 against the aforesaid letter/order dated 8-12-1994. It may be stated that it was specifically contended before the Service Tribunal that the appellants had no knowledge of the letter/order, dated 8-12-1994 and that the same was never communicated to them. Thus, they prayed for the condonation of the delay, if any. The aforesaid contention was supported by affidavits but the Service Tribunal did not mention in the impugned judgment as to whether the explanation for condoning the delay given by the appellants, herein, was accepted or not. The Tribunal simply recorded in the impugned judgment that the appeals were time-barred and that even otherwise the letter/order was not appealable as being merely an explanation. So far as the competency of the appeals was concerned, it may be stated that even a letter can be appealed against despite the fact that the same has not been couched as an order as has been held in the case reported as Muhammad Arsand Saeed, D.I.-G., Police v. Government of Pakistan through Secretary, Establishment Division, Islamabad (1994 SCMR 1033), referred to above. The fact that the explanation furnished by the Board of Revenue was accepted by the Accounts Department clearly manifests that the said letter/order adversely affected the terms and conditions of service of the appellants, herein. Therefore, we have no doubt that the Service Tribunal was not justified in dismissing the Appeals Nos,902 and 903 of 1995 against the letter/order, dated 8-12-1994.
10. Next, we deal with the question as to whether in the instant case the promotion of the respondents can be given retrospective effect at all. It may be stated that there are two conditions precedents for giving ante-date operation to a promotion. The first is that there must be an existing vacancy available for the promotion at the relevant time and secondly the promotee must have requisite qualification for promotion on the relevant date. Before dealing with the said question it is expedient here to reproduce rules 10-A, and 13 of the Rules, which deal with the promotion on acting charge/officiating basis:-- Rule 10-A.
"Appointment on acting charge basis:---(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) Where the appointing authority is satisfied on report of the selection authority that no suitable officer is available to fill a post in Grade-17 and above reserved under the rules to be filled by initial recruitment and it is expedient not to allow the post to remain unfilled, it may appoint to that post on acting charge basis the most senior officer eligible for promotion to that post.
(3) No appointment on acting charge basis shall be made against a post which is likely to remain vacant for a period of less than six months.
(4) No appointment on acting charge basis shall be made without the recommendations of the Departmental Selection Board as the case may be, but such appointment shall not be deemed to have been made on regular basis for any purpose nor shall confer any right for regular appointment."
' Rule 13.
"Appointment by_promotion on officiating basis.---(1) Where a post falls vacant as the result of deputation, leave or appointment on acting charge basis of the regular incumbent or is reserved under the rules incumbent or is reserved under the rules to be filled by transfer, the appointing authority may make appointment by promotion against such post on officiating basis.
(2) No person shall be promoted on officiating basis unless he possesses the qualifications and experience prescribed for the post and his promotion as such is approved by the Chairman of the appropriate Selection Authority.
(3) An officiating promotion shall not confer any right of promotion on regular basis but shall be liable to be terminated as soon as a person becomes available for promotion on regular basis.
(4) Officiating promotion shall be made on the same terms and conditions as to pay as are prescribed for regular appointment by promotion."
It is evident from the provisions contained in rule 10-A(1), that acting charge promotion can be given if a post is reserved for departmental promotion and the most senior civil servant belonging to the cadre or service concerned who is otherwise eligible for the promotion, does not possess the specified length of service at the time of his promotion. Under sub-rule (2) of rule 10-A, if a post is reserved to be filled in by initial recruitment but a suitable officer is not available to fill in the same, the said post can be filled in on acting charge basis by appointing the most senior officer eligible for promotion. It is evident from the aforesaid provisions that an appointment on acting charge basis in the case of departmental promotion can be made only when the promotee does not possess the requisite length of service; under sub-rule (4), an appointment on acting charge basis shall not be deemed to be made on regular basis for any purpose nor it shall confer any right for regular appointment. In the case of the respondents who were promoted on acting charge basis it is not ascertainable that they were appointed against the quota of posts reserved for departmental promotion or that they were appointed against the quota reserved for initial recruitment. Assuming for the sake of argument that they were promoted against the quota reserved for departmental promotion, in that case the presumption is that they were not possessing the requisite qualification of length of service stipulated under sub-rule (1) of rule 10-A on the relevant dates. Thus, the necessary condition for ante-date operation that the promotee must be qualified for promotion is missing in case of the respondents promoted on acting charge.
Basis as they did not have requisite length of service for promotion on regular basis. Even otherwise, in the written statement filed by the respondents, it has been averred that all the posts which were filled in on officiating/acting charge basis were not made against the post which were reserved for direct recruitment. There is no specification as to which of the appointees was appointed against the post reserved for the departmental promotion. Thus, the observations of the Service Tribunal that there were 25 posts available, out of which 15 were to be filled in by promotion and 10 were reserved for direct recruitment is ambiguous. It has also not been pointed out by the Service Tribunal that if the said posts existed, i,e,, whether the same were existing on the dates when the appointments of different respondents were made; it is also not ascertainable from the impugned judgment as to whether those posts became available under the rules which were enforced in the year 1980 or came into existence in the year 1991 when the new rules were promulgated whereby the ratio of the quota was changed from 50;50 to 30:70. There is also no explanation that if the posts for departmental promotion were available, why 17 Tehsildars were promoted on officiating basis vide, Notification No,SM/1620-1655, dated 25-3-1992, wherein it has also been written that on the return of the Tehsildars appointed by direct recruitment from training, the junior most would be demoted. Obviously, according to the said order, if not all, at least some of the posts were filled in which belonged to the quota reserved for direct recruitment. Therefore, the observation of the Service Tribunal that 15 posts were available for departmental promotion out of 25, is not tenable in absence of any material on the record., Even otherwise, as has been already stated, an acting charge promotion can be ordered only if the concerned candidate does not possess the requisite length of service for such promotion.
11. The next question pertains to conditions of officiating appointments.It is evident from sub-rule (1) of rule 13 of Rules that officiating appointment can only be made if the post falls vacant as a result of deputation, leave or appointment on acting charge basis of a regular incumbent or is reserved under the rules to be filled by transfer. In the present case it is nobody's case that the posts against which 17 persons were promoted on officiating basis fell vacant due to any of the aforesaid eventualities. Rather the said posts appear to have been reserved for direct recruitment. If the posts fell vacant due to retirement of previous incumbents or the same were newly created the same could not be filled in on officiating basis under rule 13(1); similarly, under sub-rule (3) of rule 13, the officiating promotion would not confer any right of the promotion on regular basis and same is liable to be terminated as soon as a person becomes available for promotion on regular basis.
Therefore, it cannot be said that officiating promotion of some of the respondents was envisaged under rules or same could be made basis for giving ante-date promotion to the said 'incumbents.
12. The next question arises as to whether the ante-dated, seniority to respondents Nos,3 to 7 in Appeal No,2 of 1999, entitled above, could be given to the said respondents. It is important to point out that the promotion of as many as 20 Tehsildars was regularised on permanent basis but out of 20, ante-dated seniority has been given to the five aforesaid respondents vide said notification.
Obviously, the notification, dated 16-11-1994 is not a seniority list. It is recorded in the notification that promotion of respondents, Abdul Hamid Khan, Arshad Mahboob Khan, Kh. Abdus Samad, Said- us-Zaman Khan and Raja Farooq Ahmad Khan, would commence from 22-4-1986. It is also mentioned in the said notification that as the direct recruits-Tehsildars have been appointed as Extra Assistant Commissioners, their seniority would not be adversely affected but the said order did not take notice of the fact that the appellants, herein, who were regularly appointed in the year 1991, their seniority would be definitely adversely affected if the said respondents are given seniority from 22-4-1986. The ordinary rule of preparing a seniority list is that first a provisional list is issued by the competent Authority and objections are called and thereafter, a final list is prepared. But in the instant case the short-cut method has been resorted to and the aforesaid five respondents have been chosen to give them seniority from 22-4-1986 without having any objections from the appellants, herein.
13. It has also been argued at the bar that the Government can pass an order under section 22 of the Civil Servants Act, if a case is just and equitable. It may be observed here that in the instant case none of the impugned orders including the notifications, dated 25-3-1992 and 16-11-1994 has been passed in exercise of powers under section 22 of the Civil Servants Act. The powers under section 22 being residuary in nature are to be exercised by the Government. In the instant case, the Government was also appointing authority of the respondents at the relevant time. However, it is not borne out from the record that the Government exercised powers which vested in it under section 22 of the Civil Servants Act. Therefore, the argument with regard to the justification of invoking section 22 in the instant case does not arise because the said powers have not been exercised in the present case.
' In the light of the what has been stated above, we accept the appeals, set aside the impugned orders, in both the appeals and declare that the letter/order, dated 8-12-1994 written by the Secretary Board of Revenue and the Government notifications, dated 25-3-1992 and 16-11-1994, which give retrospective effect to the officiating/acting charge appointments of the respondents, would not adversely affect the seniority of the appellants, herein, in any manner. In the circumstances of the case, we make no order as to the costs.