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Petitioner: MUHAMMAD ARSHAD KHAN, TEHSILDAR VS Respondent: AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR
2000 P L C (C
2000 P L C (C.S.) 247
[Supreme Court (AJ&K)]
Present: Sardar Said Muhammad Khan, CJ., Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ
MUHAMMAD ARSHAD KHAN, TEHSILDAR and another
Versus
AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary, Muzaffarabad and others
Civil Appeals Nos. l and 2 of 1999, decided on 8th July, 1999.
(On appeal from the judgment of the Service Tribunal, dated 5‑10‑1998 in Service Appeals Nos.839, 840, 902 and 903 of 1995).
(a) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)‑‑‑
‑‑‑‑‑S. 4‑‑‑Promotion‑‑‑Appeal‑‑‑Competency‑‑‑Appellants after exhausting departmental remedy filed appeal against a letter by Secretary, Board of Revenue to Accounts Department wherein it was explained that respondents were purported to have been given retrospective promotion from dates of their appointments as acting/officiating charge basis‑‑‑Such appeals were dismissed by Service Tribunal on the ground that the letter did not amount to‑ an order, but was an explanation of rules and was not appealable‑‑ Validity‑‑‑Letter whereby respondents had been held entitled to ante‑dated promotion, had adversely affected seniority of appellants‑‑‑Appellants, in circumstances, were legally competent to assail said letter by filing appeal to Service Tribunal after exhausting departmental remedy‑‑‑Even otherwise letter could be appealed against despite fact that same had not been couched as an order.
Muhammad Arshad Saeed, D.I.‑G. Police v. Government of Pakistan through Secretary, Establishment Division, Islamabad (994 SCMR 1033 ref.
(b) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977‑‑‑
‑‑‑‑Rr. 10‑A & 13‑‑‑Promotion on acting/officiating basis‑‑‑Retrospective effect on promotion‑‑‑Conditions‑‑‑Two, conditions for 'giving ante‑dated operation to a promotion: firstly there must be an existing vacancy available for the promotion at the relevant time, and secondly, the promotee must have requisite qualifications for said promotion on relevant date.
(c) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977‑‑‑
‑‑‑‑Rr. 10‑A & 13‑‑‑Appointment/promotion on acting/officiating basis‑‑ Concept ‑‑‑Procedure‑‑‑Conditions‑‑‑Acting charge promotion could be given if a post was reserved for departmental promotion and the most senior civil servant belonging to the cadre or service concerned, who was otherwise eligible for promotion did not posses special length of service at the time of his promotion‑‑‑If a post was deserved to be filled in by initial recruitment, but a suitable person was not available to fill in the same, said post could be filled in on acting charge hasps by appointing the most senior officer eligible for promotion‑‑‑Appointment on acting charge basis in case of departments! promotion, could be made only when promotee did not possess requisite length of service‑‑‑Appointment on acting charge basis would not be deemed to be made on regular basis for any purpose nor it would confer any right for regular appointment.
Inayat Ali and another v. Manzoor Ullah and another 1987 SCMR 407; Muhammad Iqbal Khokhar v. The Government of the Punjab, Lahore PLD 1991 .SC 35; Dr. Sabir Zameer Siddiqui v. Mian Abdul Malik and 4 others PLD 1991 SC 226; Muhammad Nawaz Khan v. Muhammad Ijaz Rashid PLD 1993 SC 10; 1993 PLC (C.S.) 338; Asif Ali Khan v. Secretary to the Government of Punjab Communication and Work's Department, Lahore 1992 SCMR 198; Muhammad Rahim, Lecturer v. Muhammad Aurangzeb, Lecturer 1986 SCMR 8?3; Government of N.‑W.F.P. through. Chief Secretary v. Muhammad Ajmal 1986 SCMR 2007; Sh. Manzoor Ahmad v. Azad Government 1995 PLC (C.S.) 59; Sardar Sabir Hussain Khan Abbasi v. Azad Government Civil Appeal No. 16 of 1999; Khawaja Muhammad Ahsan v. Manzoor Ali Khokhar Civil Appeal No.19 of 1998; Prof. Dr. Raja Muhammad Ayub Khan v. Azad Jammu and Kashmir Government 1990 MLD 1283 and Syed Aftab Hussain Shah Garadizi. v. Azad Jammu and Kashmir Government through Chief Secretary 1993 PLC (C.S.) 1659 ref.
(d) Civil service‑‑‑
‑‑‑‑Seniority list‑‑‑Rule of preparation‑‑‑Ordinary rule of preparing 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.
(e) Azad Jammu and Kashmir Civil Servants Act, 1976‑‑
‑‑‑‑S. 22‑‑‑Powers under S. 22, Azad Jammu and Kashmir Civil Servants Act, 1976‑‑‑Scope‑‑‑Powers under S. 22 of the said Act, being residuary in nature, are to be exercised by the Government.
Raja Muhammad Hanif Khan, Advocate for Appellants.
Sardar Rafique Mahmood Khan, Advocate for Respondents.
Date of hearing: 8th June, 1999.
JUDGMENT
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. l 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 givers 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 promotees‑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 en 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 the 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‑I1‑1994, 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 Naib‑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 appeal able. 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 notional promotion 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, Islamabad (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 appeal able. 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 (i)(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 violative 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 tinder Orders. In absence of any express provisions in…
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