' KHAWAJA MUHAMMAD SAEED, This appeal with the leave of the Court, is directed against the judgment of the Service Tribunal passed on 16-10-2000, whereby the appeal filed by respondent against the promotion orders of the appellants Nos.1 and 2 was allowed.
2. The facts relevant for the decision of this appeal briefly stated are that appellant No,1 who was serving as Translation Officer B-17 in the Assembly Secretariat was given Selection Grade B-18 retrospectively from 15-1-1992 and promoted as Estate Officer vide notification dated 3-5-1993. On account of the promotion of appellant No,1, the post of Translation Officer B-17 became vacant against which appellant No,2 was accommodated by granting him also Selection Grade B-18. His order was also given effect from 28-4-1992. The respondent who was serving as Assistant Secretary in the Assembly Secretariat since 1-7-1991, feeling aggrieved, moved an application for review before the Speaker Legislative Assembly on 26-6-1993. In the said review petition he challenged the promotion of the appellants Nos.1 and 2 on various grounds. His main grievance was that he and appellants Nos.1 and 2 even though were in the service of Legislative Assembly but they belonged to two different cadres which were governed by separate rules. According to him the service of the appellants Nos.1 and 2 was regulated by the Azad Jammu and Kashmir Legislative Assembly Secretariat Ministerial Service Rules, 1986, whereas his service was governed by the Azad Jammu and Kashmir Legislative Assembly Secretariat (Secretary, Deputy Secretaries and Assistant Secretaries) Recruitment Rules, 1981. Under these rules separate provisions relating to the mode of initial recruitment and promption including inter se seniority stood provided. He requested that as 33 per cent. Selection Grade B-18 was provided for the Assistant Secretaries Assembly Secretariat, therefore, the appellants Nos.1 and 2 being governed by the Azad Jammu and Kashmir Legislative Assembly Secretariat Ministerial Service Rules, 1986 were not entitled to get this grade through promotion. His review petition remained pending for a long period. In the meantime, the post of Translation Officer B-17 was redesignated as Assistant Secretary Legislation on 19-8-1993 with retrospective effect from 23-10-1986. In the light of this order issued in the name of the President, an amended notification was issued by the Speaker Legislative Assembly through which amendments were accordingly made in the notification of promotion of the appellants dated 3-5-1993. The respondent again feeling aggrieved from the abovementioned order of the President dated 19-8-1993 and notification issued in consequence thereof by the Assembly Secretariat, on the direction of the Speaker Legislative Assembly on 7-9-1993, filed another review petition before Speaker Legislative Assembly, the appellant No,3, on 22-9-1993. He after waiting for 90 days, as required by section 4 of the Azad Jammu and Kashmir Service Tribunal Act, 1975, as was applicable at the relevant time, filed an appeal before the Service Tribunal on 23-10-1993. In this appeal he also challenged the Government order whereby the post of Translation Officer B-17 was redesignated as Assistant Secretary Legislation retrospectively and a notification issued on 3- 5-1993 thereof on the direction of the Speaker by the Assembly Secretariat.
3. All the appellants who were arrayed as respondents contested this appeal. They filed separate written statements before the Service Tribunal in which they sought the dismissal of the appeal on the following preliminary objections:-- "Preliminary Objections on behalf of official respondents.
(1) Appellant is not an aggrieved civil servant in the eye of law, as such, has no locus standi to file an appeal.
(2) Appellant has challenged in appeal, more than one and different notifications arising out of different and independent orders. Appeal, therefore, suffers from misjoinder of causes of action, and liable to be dismissed.
(3) Appeal arises out of proceedings determining fitness for promotion, and appeal is not competent according to the provisions of section 4 of the Service Tribunal Act.
(4) Appeal is barred by limitation, hence merits dismissal.
(5) Honourable Tribunal has no jurisdiction to entertain the appeal in view of the averments made in the appeal and the relief prayed for by the appellant."
Preliminary Objections on behalf of private respondents
(a) That against impugned Notification bearing No,8047-52 Assembly/93, dated August 19, 1993 bearing No,8751-57/A/93, dated September 7, 1993 the appellant availed departmental remedy by way of review petition before the respondent. No,1 on September 22, 1993 while the appeal has been filed on October 23, 1993, within a month from the date of filing of review petition hence this premature appeal is hit by section 4(a) of the Service Tribunal Act needing dismissal of appeal on this solitary ground.
(b) That against these various and separate Notifications the appellant filed a single appeal which is bad in law and hit by the doctrine of misjoinder which is not maintainable even from this angle.
(c) That at the time of granting Selection Grade B-18 and promoting answering respondents the appellant's name was included in the penal sent to the Selection Board concerned for consideration, therefore, the appeal of the appellant is liable to be dismissed keeping in view the provisions of section 4(b)(1) of Service Tribunal Act, 1976 and proviso of rule 4(d) of the Azad Jammu and Kashmir Civil Servants (Appeal) Rules, 1991 as this honourable Court has got no jurisdiction to determine the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade or post. Minutes of Selection Board are annexed herewith as Annexure "RA".
(d) That the appellant was an employee of Accounts Department whose lien from the above department was abolished by the Accountant-General vide Order bearing No,2210-12/A/Admin/ 80, dated March 24, 1980 who was absorbed in the Assembly Secretariat vide order of learned Secretary dated October 30, 1980 with the condition that seniority of any incumbent of Assembly would not be effected. Above orders are annexed herewith as Annexures "RB" and "RC" respectively.
(e) That answering respondent No,3 was promoted as Superintendent in B-13 on June 1st, 1976 in the Assembly Secretariat while the appellant joined/absorbed in such Secretariat as Superintendent on October 30, 1980 despite this fact he was shown senior to the answering respondent No,3 in the seniority list, dated April 19, 1982 against which the said respondent filed a review petition which was accepted by the learned Secretary vide Order bearing No,1472-73/A/82, dated November 25, 1982. The appellant filed an appeal against above order which too was rejected by the worthy President/Speaker vide Order bearing No,605-6/A/83, dated May 22, 1983.
Thus the answering respondent No,3 is senior to the appellant beyond he shadow of any doubt.
Above orders are annexed herewith as Annexures `RD' and `RE' respectively.
(f) That again respondent No,3 was promoted as Superintendent in BS-16 on February 3, 1983 and as Estate Officer in BS-17 vide order, dated July 1st, 1991 which post was substantively available since June 29, 1991 while the appellant was promoted as Assistant Secretary BS-17 vide order, dated October 6, 1991 in respect of the said post substantively available since May 23, 1991. The respondent No,3 considering himself aggrieved filed a review petition before the respondent- Speaker which was accepted and the answering respondent was declared senior to the appellant vide former's order, dated April 13, 1993, thus the contention of the appellant that he is senior to the answering respondent is actively incorrect. Order of the learned Speaker is annexed herewith as Annexure `RF'.
(g) That the answering respondent No,2 was appointed as Translation Officer in BS-16 vide order bearing No, Admin/22497/99/75, dated November 24, 1975 whose promotion was later on approved by the Selection Committee in the above upgraded post of BS-17 since October 23, 1986 vide Order bearing No,995/ 1095/87, dated February 19, 1987 while the appellant has been promoted as Assistant Secretary in BS.17 on October 6, 1991 who cannot compete to the answering respondent No,2 by any stretch of imagination from any angle, orders of his promotions are annexed herewith and marked as Annexures `RG' and `RH' respectively.
(h) That the appellant was promoted as Assistant Secretary on October 6, 1991 in BS-17 who desires to be promoted in BS-18 within about six months whereas according to Rules for such promotion minimum period of 5 years' service in BS-17 is mandatory, hence appeal is bad in law accordingly."
4. The respondent also filed his replication and put forth his point of view specifically about these objections. The Service Tribunal heard the arguments and directed the learned counsel for the parties to submit their written arguments on behalf of the parties. The direction of the Service Tribunal was complied with by the parties as they submitted written arguments before the Service Tribunal on 12-10-1999 and 20-10-1999 respectively. The Service Tribunal after taking almost one year finally allowed the appeal of the respondent vide judgment under challenge before us.
5. Mr. M. Tabassum Aftab Alavi, the learned counsel for the appellants, argued that the appeal of the respondent against notification dated 19-8-1993 and notification issued in the light of this notification by the Assembly Secretariat on 7-9-1993 under the direction of the Speaker, was premature as the same was filed without waiting for a period of 90 days as was required by section 4 of the Azad Jammu and Kashmir Service Tribunal Act, 1975 as applicable at the relevant time. In support of his contention he relied on Asif Majeed Khan v. Tahir Ayub Abbasi and 3 others 1994 PLC (C.S.) 1514, in which it is laid. Down that when a departmental remedy is availed of by a party it can invoke appellate jurisdiction of the Service Tribunal after waiting for a period of 90 days, if same remains undecided. According to the learned counsel the appeal against the promotion order of the respondent dated 3-5-1993 was barred by limitation as it was filed after consuming 7 months. According to him under the scheme of law the respondent was required to wait for the decision of his review petition by the Speaker Legislative Assembly for a period of 90 days only, thereafter, he should have filed his appeal before the Service Tribunal in next 30 days whereas he waited for a period of almost seven months, and filed his appeal when after seven months his review petition was dismissed by the Speaker Legislative Assembly. Therefore, as waiting beyond 90 days was contrary to the spirit of law and authority of this Court in case titled Shabir Ahmad v.
Azad Jammu and Kashmir Government and another 1997 PLC (C.S.) 478, the appeal preferred by him was liable to be dismissed without entering into the merits of the case. He also opposed the application which stood moved by the respondent during the completion of the appeal in the Registry Office of this Court, whereby he has sought the condonation of delay in Appeal No,46 filed by his client on 19-2-1997 before the Service Tribunal. He further argued that the respondent was not entitled to be considered for promotion in B-18 as his service in B-17 was less than 5 years.
According to him the respondent had only the service of 9 months at his credit in B-17 when impugned orders of promotion of his client were passed. Because under rules he was still probationer, therefore, could not be given Selection Grade B-18 merely on the ground that at the relevant time he was posted as Assistant Secretary in B-17. In support of his contentions he relied on the cases titled Syed Shaukat Ali Gillani v. Abdul Rehman Abbasi and others 1992 SCMR 369 =1992 PLC (C.S.) 438, Umar Din Kiani v. Azad Government and others 1995 SCR 166. He further argued that respondent was not eligible for Selection Grade in B-18 but despite this fact his name was also included in the panel which was sent to the Selection Committee for consideration. The Selection Committee recommended the appellants for Selection Grade B-18, therefore, under proviso (b) of section 4 of the Service Tribunal Act, the suitability judged by the Selection Committee cannot be assailed in appeal before the Service Tribunal. In support of his contention he relied on following cases:--
(i) Secretary, Government of Sindh Education Department and another v. Syed Riyazul Hassan Zaidi and another 1986 SCMR 64,
(ii) Dr. Iftikhar Ali Rana v. Secretary, Ministry of Health and others 1988 PLC (C.S.) 445,
(iii) Aish Muhammad and 68 others v. Pakistan and 75 others 1985 SCMR 774,
(iv) Mrs. Ageela Ashar Ali and others v. Miss Khalida Khatoon Malik and others PLD 1991 SC 1118,
(v) Bashir Ahmed v. Khurshidul Hassan and others 1983 PLC (C.S.) 1265 and
(vi) Mujeebullah Aijaz v. Director-General, Telephone and Telegraph Department and 2 others PLD 1980 Quetta 58.
' He further argued that appellants Nos.1 and 2 were senior to the respondent. According to the learned counsel, the respondent was absorbed in the service of Assembly Secretariat on 30-10- 1980, whereas the appellant No,1 was promoted as Superintendent B-16 in Assembly Secretariat on 1-6-1976. On 1-6-.1976 the respondent was serving in the office of Accountant-General as Auditor in B-7. He further argued that appellant No,1 was declared senior to respondent in the seniority list issued on 19-4-1982. The correctness of the entries recorded in the seniority list were challenged by respondent before the Speaker through an appeal which was dismissed by him vide his order, dated 22-5-1983. The order of the Speaker was not assailed before any forum by him, therefore, this order alongwith seniority list have attained finality and now respondent under law is estopped to challenge the correctness of the entries of the seniority list at this belated stage. The learned counsel for the appellants further argued that appellant No,2 was appointed as Translation Officer B-16 on 24-11-1975. Later on the recommendations of the Selection Committee, he was given B-17 vide order, dated 19-2-1987 with effect from 23-10-1986. These facts are ample proof that appellants are senior to the respondent in the Assembly Secretariat. He further argued that all these points were raised during the course of arguments and later on were repeated in written arguments which were submitted before the Service Tribunal on its demand but remained unattended. The learned Service Tribunal has admitted in its order under challenge that these objections were raised by the appellants, herein,' about the maintainability of the appeal filed by the respondent.
6. On the other hand Mr. Ghulam Mustafa Mughal, the learned counsel for the respondent, argued that admittedly the parties are serving in Assembly Secretariat but they belonged to two different cadres which were governed by different rules. According to him, his client was absorbed in Assembly Secretariat as Assistant Secretary in B-17. Thirty-three per cent. Selection Grade B-18 was approved for Assistant Secretaries serving in the Assembly Secretariat by the Government vide Notification No, 1696-1701/Assembly/93, dated 28-2-1993. In view of this fact, the appellants who were never appointed or posted as Assistant Secretary Assembly Secretariat were not entitled to take benefit of this Government Notification. He further argued that in order to give undue benefit to the appellants the nomenclature of the post was changed by the Government vide Notification No,8047-52/Assembly/93, dated 19-8-1993 and thereafter benefit of this Government Notification was extended to appellant illegally by the Speaker Legislative Assembly. He further argued that this is a clear case of favouritism because the benefit was extended to appellants retrospectively in order to give them edge of seniority over his client. He further argued that his client without wastage of any time filed review before the Speaker Legislative Assembly who kept it pending unnecessarily for a period of seven months and then rejected it. After the rejection order passed by Speaker Legislative Assembly his client availed the right of appeal before the Service Tribunal within next thirty days. According to him as waiting period of 90 days was provided in section 4 of the Service Tribunal Act, therefore, due to misconception of legal position, the civil servants used to wait beyond 90 days. Such delay was later on condoned by this Court in Ch. Muhammad Hussain v.
Azad Government of the State of Jammu and Kashmir 1997 PLC (C.S.) 1047.
7. He further argued that retrospective effect cannot be given even by enacting rules to deprive any person from his accrued rights as was done in this case by the appellants Nos.3 and 4. He in this connection relied on following case-law:--
(i) Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539,
(ii) Shaikh Safdar Rashid v. Director, Local Government and another 1999 PLC 963,
(iii) Government of Pakistan and others v. Zamir Ahmed 1996 SCMR 630, and
(iv) Muhammad Imtiaz Khan v. Azad Jammu and Kashmir Government and others 1999 PLC (C.S.)
1007.
' The learned counsel for the respondents admitted that the Service Tribunal has not decided the questions raised by the parties for and against their respective pleas, however, according to him as lot of time has been consumed in the litigation, therefore, we should ourselves decide these issues without remanding the case. In support of his submission he referred to two authorities of this Court, where points of issue were resolved by this Court without remanding the case to the Service Tribunal:--
(i) Abdul Rashid v. D.E.O. And another 1998 PLC (C.S.) 304 and
(ii) Raja Feroz Khan v. Ashar Khan and others 1992 SCR 363.
8. We have heard the learned counsel for the parties and gone through the record of the case.
9. Parties of the case are employees of the Assembly Secretariat. Prior to the issuance of Notification No,1696-1701/Assembly/93, dated 28-2-1993 which was given effect from 11-3-1995 there was no dispute between them. According to the respondent he and appellants Nos.1 and 2 belonged to two different cadres. Under this Notification Selection Grade B-18 was approved for Assistant Secretaries on the formula of 33%. The case of the respondent was that on account of this notification prior to him Mr. Nazir Khokhar and Mr. Muhammad Aslam Khan, Assistant. Secretaries were allowed Selection Grade B-18 vide notifications issued on 3-5-1993 and 23-5-1991 respectively. According to him as appellants Nos.1 and 2 belonged to different cadres of Assembly Secretariat as such they were not entitled to B-18 under this Government Notification because they were not posted as Assistant Secretaries in the Assembly Secretariat. During the pendency of the dispute between the parties before the Speaker of the Leg4lative Assembly of Azad Jammu and Kashmir in the review petitions filed by the respondent against the order granting appellants Nos.1 and 2 B-18, the post of Translation Officer was redesignated as Assistant Secretary on 19-8-1993 with effect from 23-10-1986 the date when appellants Nos.1 and 2 were given Selection Grade B-18.
This notification was issued in the name of President on 3-5-1993 and in furtherance to this notification a notification was issued by the Assembly Secretariat on the direction of the Speaker Legislative Assembly AJ&K on 7-9-1993. These were also made subject of review by the respondent before the appellant No,3.The Speaker Legislative Assembly decided his first review petition after seven months whereas second review petition was still pending with the Speaker when an appeal was filed by respondent before the Service Tribunal. Various objections for the dismissal of his appeal on technical grounds were raised in the written statements as well as in the written arguments by the appellants herein but unfortunately without deciding these points the appeal was allowed in favour of respondents.
It is settled proposition of law that judicial order must be speaking order manifesting by itself that the Court or Tribunal has applied its mind to the facts of the case and the issues involved and then resolved them in light of the evidence, available on record keeping in view the law on the subject.
The Court/Tribunal seized with the case is also expected to record its reason in support of the conclusion drawn by it. In the present case as said earlier the learned Tribunal has omitted to decide all the points which were raised by the appellants in their written statements and pressed in their written arguments before the Tribunal. This Court under subsection (1) of section 42-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974 read with rule 6 of Order 43 of Supreme Court Rules, 1978 has got wide powers to issue such direction or pass such orders or decrees as may be felt expedient for doing complete justice in any case or matter pending before it. In the present case it is felt proper by us to have first the wisdom of the learned Service Tribunal on these grounds. The litigation between the parties has consumed a lot of time. On account of undue delay the respondents have suffered unnecessary hardships and expenses. Therefore, while remanding this case it is directed that the learned Service Tribunal shall decide this case within a period of one month from the receipt of the record from this Court. As case has not been decided on merits, therefore, no order is passed as to the costs.