' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave of the Court, is directed against an order passed by the High Court on 22-9-1999, whereby the writ petition filed by respondent No,1 was accepted.
2. The necessary facts, giving rise to the present appeal, briefly stated, are that respondent No,1 is serving as Deputy Superintendent, Central Excise Mirpur. He was promoted to grade B-14 on the recommendations of relevant Selection Committee on 1-8-1991. He appeared in 23rd departmental examination held in 1996 and passed the examination but did not secure the aggregate marks.
Consequently respondents Nos.2 to 5 were promoted vide Notification E-11-1/96 AJKC, dated 15-7- 1997. The respondent being aggrieved by promotion of respondents Nos.2 to 5 in the first instance moved an application before the departmental authority but his application was dismissed.
Thereafter, the respondent filed a writ petition in the High Court, which, as said earlier, was accepted.
3. The High Court vide its impugned order observed that the respondent obtained 349-1/2 marks out of 750. Thus, according to the High Court, he secured 40% marks in aggregate and 33% in each paper. The High Court further observed that the respondent had qualified the examination.
4. In support of appeal it was vehemently contended by Ch. Muhammad Afzal, the learned counsel for the appellant, that in accordance with the relevant Rules of 1962 which were amended in 1977, the respondent was to qualify both in the excise paper as well as in the income tax paper. The respondent, according to the learned counsel for the appellants, qualified in the excise paper but in the paper of income tax he was lacking 8-1/2 marks, as under the Rules he was required to obtain 40% marks for the purpose of passing income tax paper and 50% marks as aggregate to qualify the departmental examination. The learned counsel submitted that the Rules of 1962 were amended in 1977 and ultimately rules of 1994 were brought into field. The learned counsel contended that the Civil Servants Act was amended and adapted by Azad Jammu and Kashmir Council on 20th July, 1979. Subsection (2) of section 23 of the Civil Servants Act reads as follows:-- "Any rules, regulations orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act shall, in so far as such rules, regulations orders or instructions are not inconsistent with the provisions of this Act, and be deemed to be made under this Act."
' The learned counsel for the appellants submitted that the syllabus provided for was 40% marks in each, income tax paper and 50% aggregate marks to pass departmental examination. The learned counsel also contended that before the departmental authority the respondent in his application had requested the departmental authority that he was lacking 8-1/2 marks, therefore, these marks may be given to him as grace marks. It was pressed into service that respondent cannot now turn round and take the plea that he had passed the examination in question.
5. On the other hand Mr. M. Riaz Tabassum, the learned counsel for respondent No,1, vehemently urged that the High Court accepted the writ petition filed by respondent on the ground that he wanted the mere declaration that he had passed the examination and does not contest the question of promotion of respondents Nos.2 to 5. The learned counsel also relied upon an unreported case of this Court titled Zulfiqar Ali Mirza and another v. Azad Jammu and Kashmir Council and 2 others (Civil Appeal No,82 of 1996, decided on 25-3-1997), where it was observed as follows:-- "the notification of 2nd May, 1994 lays down all these matters with great detail. It clearly lays down that an Inspector in B-14 will be eligible for promotion if he has five years' service to his credit and has passed the departmental examination. It does not lay down obtaining of 50% marks as a condition for promotion. The notification under reference is a self-contained provision and supersedes any other order or rule which was previously in operation. There is no principle of law under which the previous provision can be considered to be in force."
' The learned counsel for respondent relied on another case of this Court titled Abdul Latif v.
Secretary Azad Jammu and Kashmir Council and others (Civil Appeal No,86 of 1996 decided on 25- 3-1997), wherein the above stated principle was reiterated. On the strength of the aforesaid authorities the learned counsel for respondent submitted with vehemence that in the Rules of 1994, since there is no provision of obtaining 50% aggregate marks, therefore, any civil servant who had passed the departmental examination shall be competent to qualify for the promotion.
6. After hearing the respective contentions of learned counsel for the parties and perusing the record, it may be stated that initially the Income Tax Department was a part of the Azad Government of the State of Jammu and Kashmir, but, with the promulgation of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the subject of Income Tax was given within tie purview of the legislative and executive authority of Azad Jammu and Kashmir Council. In the year 1962 the Azad Government of the State of Jammu and Kashmir laid down in Government Order No,193 of 1962, dated 5th of April, 1962 the syllabus for departmental examination of Inspectors. It was also provided in the aforementioned Government Order that, although pass percentage in the said examination shall be 33% in each paper and 40% in aggregate. Inspectors who pass the examination by higher standard, namely, they get not less than 50% of the marks will be eligible for promotion to higher cadre. In 1994, Azad Jammu and Kashmir Council vide notification dated 2nd of May, 1994, laid down the method of appointment, qualifications and other conditions for appointment to posts in the Taxation Group carrying B-16 and above.. Inter alia the following conditions of eligibility from the post of Inspector Income Tax-cum-Deputy Superintendent (B-14) were laid down:-- "(i) 5 years' service in BPS-14; and
(ii) have passed the departmental examination."
7. The short question involved in the appeal can be resolved by deciding whether the notification of 2nd of May, 1994, is a self-contained provision or whether it has to be read in continuation of Government order of 5th of April, 1962. The notification of 2nd of May opens with these words:-- "In pursuance of sub-rule (2) of rule 3 of the Civil Servants (Appointment, Promotion and Transfer)
Rules, 1973, as adopted, the following method of appointment, qualifications, experience, age limit and other conditions are laid down for appointment to the under mentioned posts"
' It is clear from sub-rule (2) that the Azad Jammu and Kashmir Council is empowered to lay down qualifications and other conditions for appointment The notification of 2nd of May, 1994, lays down all these matters with great detail. It clearly lays down that an Inspector in B-14 will be eligible for promotion if he has five years' service to his credit and if he has passed the departmental examination. It does not lay down obtaining of 50% marks as a condition for promotion. The notification under reference is a self-contained provision and supersedes any other order or rule which was previously in operation. There is no principle of law under which the previous provision can be considered to be in force as Rules of 1994 are silent about it. The respondent in the High Court simply sought a declaration to the effect that he has passed the departmental examination and the High Court accordingly granted him the relief by accepting his writ petition.
8. Another aspect of the matter is that according to the Azad Jammu and Kashmir Council Adaptation of Laws Act, 1979, the previous laws were declared to cease to have effect on coming into being of the amended Act of 12th July, 1979. Section 4 of the above referred amended Act reads as follows:-- "(4) Previous laws to cease to have effect.---If immediately before the coming into fcrce of this Act there is in force in Azad Jammu and Kashmir any law corresponding to any law adapted by this Act, it shall, subject to the other provisions of this Act, cease to have effect on and from the date of the commencement of this Act, provided that the provisions of this Act shall not render invalid anything duly done before the coming into force of this Act under the provisions of any previous law."
' The above stated provision also makes abundantly clear the position that the law as provided in Rules of 1962 ceased to have any effect after 12th of July, 1979, when the amended law was adapted in Azad Jammu and Kashmir.
9: For the aforestated reasons, finding no force in this appeal, the same stands dismissed.