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Petitioner: Dr. ABDUL GHAFFAR SULEHRIA VS Respondent: AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief SecretaryHonorable Justice Muhammad Reaz Akhtar Chaudhry, C.J., Khawaja Shahad AhmedMujahid Hussain Naqvi and Ashfaq Hussain Kiani,Syed Arshad Hussain Gilani
2010 P L C (C
2010 P L C (C.S.) 165
[Supreme Court (AJ&K)]
Before Muhammad Reaz Akhtar Chaudhry, C.J., Khawaja Shahad Ahmed, J
Civil Appeal- No.147 of 2001
Dr. ABDUL GHAFFAR SULEHRIA
Versus
AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary, and 4 others
(On appeal from the judgment of AJ&K Service Tribunal, dated 16-7-2001, in Service Appeal No.72 of 1997).
Civil Appeal No.148 of 2001
Lady Dr. ROBINA QAMAR QURESHI
Versus
AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 4 others
(On appeal from the judgment of AJ&K Service Tribunal, dated 16-7-2001, in Service Appeal No.71 of 1997).
Civil Appeals Nos.147 and 148 of 2001, decided on 16th January, 2008.
(a) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)---
----S. 4---Azad Jammu and Kashmir Service Tribunal (Procedure) Rules, 1976, R.8---Appeal before Service Tribunal---Impleading of necessary parties---Term `authority', meaning of---Term `authority' would mean a person or authority which was competent to appoint a civil servant; or one designated as such to proceed against civil servants under the Azad Jammu and Kashmir (Efficiency and Discipline) Rules, 1977; it also included functionaries of the State who could finally determine any right, term or condition of service of a civil servant---Appeal before the Service Tribunal could be filed by a civil servant who was aggrieved by any final order whether original or appellate made by a departmental authority and his memorandum of appeal, appellant had to implead the competent authority as the first respondent; and thereafter the parties to the dispute to be arrayed as other respondents---In the present case, order whereby respondents had been promoted had been passed by the Government, which being the only competent authority, had been arrayed as the first respondent---Phraseology and the 'way with words of R. 8 of Azad Jammu and Kashmir Service Tribunal (Procedure) Rules, 1976, had mentioned only two respondents to be impleaded in the appeal---Competent authority which passed the final order in respect of terms and conditions of service, had to be impleaded as the first respondent and other parties to the dispute to be the second set of respondents---Parties to the dispute would mean those against whom a civil servant had some grievance in respect of inter se seniority and promotion---Selection Board or the Selection Committee, was not in fact a substitute of Public Service Commission, which all were basically recommendatory bodies, whose recommendations could or could not be accepted by the competent authority---Appellants being aggrieved after the issuance of *the notification by the Government, Selection Board was not a necessary party to be impleaded as respondent in appeal before Service Tribunal---Only the Government was a necessary party to be impleaded as respondent in appeal before Service Tribunal and Selection Board having not passed the final order adversely affecting the service right of the appellants, was not necessary party to be impleaded as respondent before the Service Tribunal.?
Dr. Abdul Ghaffar Sulehria v. Azad Government and others 2005 PLC (C.S.) 1233 ref.
(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---
----S, 44---Writ petition---Scope---Necessary party---Writ petition could be filed by an aggrieved party or person against a person performing functions in connection with the affairs of Azad Jammu and Kashmir or Local Authority, which would mean the person who, while performing his functions passed an order which affected the right of a citizen, was a necessary party.?
(c) Azad Jammu and Service Tribunal Act (XXII of 1975)---
----S. 4---Appeal to Service Tribunal---Scope---Appeal to the Service Tribunal would not lie against an order or decision of a Departmental Authority determining the fitness or otherwise of a person to be appointed or to hold a particular post or to be promoted to a higher post---Jurisdiction of the Service Tribunal was barred where the question of fitness of a civil servant for promotion was involved---Determination of eligibility of a civil servant was a question on which jurisdiction of the Service Tribunal had not been barred---Question of eligibility related primarily to the term and conditions of service and their applicability to the civil servant concerned.?
Secretary Government of Sindh Education Department and others v. Syed Riyazul Hussain Zaidi 1986 SCMR 64; Sarwar Hussain Shah v. Azad Government and 3 others 1997 PLC (C.S.) 302; Mrs. Aqeela Asghar Ali and others v. Miss Khalida Khaton Malik and others PLD 1991 SC 1118 and Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others 1991 SCMR 1129 ref.
(d) Azad Jammu and Kashmir Civil Servants Act (VI of 1976)---
----S. 8---Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975), S.4---Promotion, considerations for---Three things were to be seen while considering a case of promotion; the first rule was that; was it a part of selection or of seniority-cum-fitness or of seniority alone; second was, where the promotion was to take place by seniority-cum?fitness, the question would necessarily be assignment of the correct seniority and proceedings to determine the entitlement of promotion on its basis and third question necessarily would be a fitness for promotion---Principles of promotion and the assignment of proper seniority for consideration for promotion were matters which did not stand excluded from the jurisdiction of the Service Tribunal, because those did not involve the question of fitness which had been expressly reserved for departmental Authority and were outside the jurisdiction of the Tribunal---Distinction was drawn between the question of fitness of a civil servant for promotion and question of eligibility to promotion---Jurisdiction of Service Tribunal was barred where the question of fitness of a civil servant for promotion was involved---Determination of eligibility, was a question on which jurisdiction of the Service Tribunal had not been barred---Question of eligibility related primarily to the terms and conditions of service and their applicability to the civil servant concerned---In the present case, case of appellant for promotion having not been turned down on the ground of fitness, the matter could be reconsidered by Service Tribunal---Findings recorded by the Selection Board were not sacrosanct and immune from judicial review---Where the findings of facts were recorded by the Authority without recording any sound and cogent reason, Service Tribunal or the court could look into the correctness or otherwise of the findings so recorded.?
Umar Din Kiani v. Azad Government and others 1995 SCR 166 and Raja Muhammad Sohrab v. Azad Government and 6 others 2002 PLC (C.S.) 1138 ref.
(e) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---
----S. 47(3)---Azad Jammu and Kashmir Civil Servants Act (VI of 1976), S.8---Azad Jammu and Kashmir Health Department Service Rules, 1984, Column 7---Promotion---Appeal to Supreme Court---Appellants, in view of entries in Column 7, Serial 19 of Azad Jammu and Kashmir Health Department Service Rules 1984 and S.8 of Azad Jammu and Kashmir Civil Servants Act, 1976, lacked the minimum qualifications prescribed for appointment/promotion to the post of Senior Dental Surgeon---Appeals filed by the appellants, in circumstances, had no substance as appellants lacked minimum qualification for promotion to the posts of Senior Dental Surgeon---Selection Board had rightly held that appellants had not fulfilled the requisite criteria/qualification.?
Dr. Abdul Ghaffar Sulehria and others v. Azad Government and others 2005 PLC (C.S.) 1233 and Umar Din Kiani v. Azad Government and others 1995 SCR 166 ref.
Mujahid Hussain Naqvi and Ashfaq Hussain Kiani, Advocates for Appellants.
Additional Advocate-General, Syed Arshad Hussain Gilani, Raja Muhammad Hanif Khan and M. Tabassum Aftab Alvi, Advocates for Respondents.
Dates of hearing: 23rd, 25th, 26th and 27th April, 2007.
JUDGMENT
The captioned appeals by leave of this Court have been filed to assail the judgment of the Service Tribunal dated 16-7-2001 whereby two appeals, one filed by Dr. Abdul Ghaffar Sulehria and the other by Dr. Robina Qamar Qureshi have been dismissed. Civil Appeal NO.147 of 2001 has been filed by Dr. Abdul Ghaffar Sulehria whereas Appeal No.148 of 2001 by Dr. Robina Qamar Qureshi. As common questions of facts and law are involved in both the appeals, therefore, these are disposed of through this single judgment.
2. The controversy brought to this Court relates to a Government Notification dated 28-11-1996 whereby on the recommendations of the concerned Selection Board, private respondents Dr. Shaoor Ahmed Shaoor and Dr. Shaukat Tanveer have been promoted to the post of Senior Dental Surgeon. The admitted facts of the case are that the appellants and the private respondents were inducted in the service of the Health Department as Dental Surgeons in BPS-17. Dr. Robina Qamar Qureshi, after her appointment on 27-3-1978 as Dental Surgeon (B-17), was granted Selection Grade (B-18) w.e.f. 16-2-1987, whereas Dr. Abdul Ghaffar Sulehria, who joined as Dental Surgeon (B-17) on 15-10-1980 also succeeded in getting Selection Grade (B-18) w.e.f. 27-9-1987. According to the record both the appellants have been given moreover in B-19 on 1-12-1992. As against it the respondents, Dr. Shaoor Ahmed Shaoor and Dr. Shaukat Tanveer, were appointed as Dental Surgeons (B-17) on 13-4-1981 and 19-2-1983, respectively and were granted Selection Grade B-18 on the basis of 40% formula. Four posts of Senior Dental Surgeons of scale BPS-18 fell vacant and cases of 14 Dental Surgeons (B-17) were forwarded through working paper by the Secretary Azad Jammu and Kashmir Health Department to the concerned Selection Board and consequently the Selection Board recommended Dr. Rafique Ahmed Banday, Dr. Muhammad Tahir, Dr. Shaoor Ahmed Shaoor, respondent, and Dr. Shaukat Tanveer, for promotion to the posts of Senior Dental Surgeons (B-18). It reveals from record that a meeting of Selection Board was held in Kashmir House Islamabad. It was participated by Additional Chief Secretary Development, Principal Secretary---to the Prime Minister, Maj. General Sabir Aziz, Secretary Health, Secretary Services and Additional Secretary (Services). The meeting of Selection Board No.2 was held on 6-6-1996 by members of the Board referred to above with Chief Secretary as its Chairman. The recommendations of the Selection Board were followed by a Government Notification dated 28-11-1996, which was challenged by the appellants, herein, to the extent of Dr. Shaoor Ahmed Shaoor and Dr. Shaukat Tanveer as these two Doctors, according to the seniority list, were junior to Dr. Abdul Ghaffar Sulehtia and Dr. .Robina Qamar Qureshi, appellants herein. The appellants invoked the appellate jurisdiction of the Service Tribunal which through a consolidated judgment recorded on 16-7-2001 dismissed both the appeals mainly on the ground that the appellants did not pass the grading course as laid down under rules, therefore, they were not eligible for promotion against the post of Senior Detktal Surgeon (B-18). When the captioned appeals by leave of this Court were finally heard by this Court, after discussing the facts and law on the subject and while keeping the appeals pending, the Service Tribunal was directed to record its opinion on the following points:---
"Whether the courses mentioned in serial No.19, Column No.7 of the Schedule attached to the Health Department Service Rules, 1984, are in fact approved by the Pakistan Medical and Dental Council; if not, as stated by Dr. Shaoor Ahmed Shaoor, whether these courses have been approved and adopted by the Government of Azad Jammu and Kashmir as qualification. If reply is affirmative, then what is its effect particularly when under rules these courses have been incorporated subject to approval by Pakistan Medical and Dental Council."
3. This direction was recorded by the Supreme Court on 18-6-2004 and is reported as Dr. Abdul Ghaffar Sulehria and others v. Azad Government and others 2005 PLC (C.S.) 1233. The Service Tribunal after recording statements of Imam Bux son of Muhammad Ramzan, Assistant Admin Officer Pakistan Medical and Dental Council and Mr. Zain Akbar, Superintendent; Office of the Director-General Health Services Muzaffarabad, recorded the opinion on the points referred to it by the Supreme Court. The Service Tribunal recorded its opinion by holding .that under the Azad Jammu and Kashmir Health Department Service Rules, 1984 the entries in Serial No.19 of Schedule provided two modes for promotion to the post of Senior Dental Surgeon (B-18), one by promotion on the basis of seniority-cum-fitness from amongst the officers holding the post of Dental Surgeon with 5 years' service in B-17 and above in the Health Department whereas the second mode, according to the Service Tribunal, provided by rules is Post-graduation from A.F.M. College in Dental Surgery or M.B.DS. or DP. PH or other equivalent qualification of one year's duration each recognized by the Pakistan Medical and Dental Council. While declaring the second mode as self-contradictory the Service Tribunal held that it has failed to understand as to why the concerned Selection Board has not made its recommendations according to the first mode. Finally in para.6 of the report the Service Tribunal held that the appellants, herein, being senior to respondents Nos.3 and 4 were eligible for promotion against the post of Senior Dental Surgeon (B-18) prior to the respondents Nos.3 and 4. The .Service Tribunal, however, in its report reproduced the statements of some of the concerned Officers of the Health Department. The Service Tribunal recorded its opinion on 10-11-2004 and the above captioned appeals remained pending in this Court for one or the other reason.
During the course of arguments it was felt necessary to send for the record of the Selection Board, which was accordingly placed before us and arguments were heard on 23rd, 25th, 26th and 27th of April, 2007. It also needs to be mentioned here that on 19-4-2007 Mr. Ashfaque Hussain Kiani, the learned counsel appearing for one of the appellants, moved an application on behalf of one Dr. Zubair Ahmed, Dental Surgeon, for impleading him as party and we felt persuaded to direct the parties before the Court to file objections on the application of Dr. Zubair Ahmed and the cases were fixed for 23-4-2007. After going through the contents of the application and the available record we dismiss this application as Dr. Zubair Ahmed, the applicant has failed to challenge the findings of the` Selection Board and the concerned Government order passed on 28-11-1996, although, as far the seniority list of the Dental Surgeons is concerned, he is senior to the appellants and the private respondents. It also needs to be mentioned here that the controversy in hand consumed more than 10 years' time and during this period many Dental Surgeons must have been appointed and promoted who are not before this Court and no finding can be recorded against them.
4. Now adverting to contentions pressed into service by the learned counsel for the parties during the course of arguments. Mr. Mujahid Hussain Naqvi, the learned counsel arguing on behalf of the appellants, submitted that the Service Tribunal was wrong to hold that the findings recorded by the Selection Board could not be assailed in appeal before the Service Tribunal and that the Selection Board was a necessary party which having not been impleaded as such, the appeal before the Service Tribunal was not properly constituted. He also submitted that the Service Tribunal fell in error in holding that only graded Doctors could be considered for the post of Senior Dental Surgeon (B-18). According to the learned counsel, the rules provide two modes for promotion to the post of Senior Dental Surgeon (B-18); one being through promotion on the basis of merit-cum-seniority and fitness from amongst the officers holding the posts of Dental Surgeons (B-18) with 5 years' experience, whereas the second mode is direct recruitment. As the appellants were admittedly senior to the private respondents with unblemished and immaculate service record, there was no justification for the Selection Board to supersede them and promote respondents Nos.3 and 4, who are admittedly junior to the appellants. In the estimation of the learned counsel only that grading course could be considered as a qualification which course has been recognized by the Pakistan Medical and Dental Council. It is proved from record that the said course is an internal arrangement of Armed Forces Medical College, therefore, the Selection Board could not deprive the appellants from their valid promotion right. He also submitted that although the private respondents have completed the grading course, the same has not been recognized by the Pakistan Medical and Dental Council. This additional and alternate qualification could not generate any right for the junior respondents to supersede the appellants, who were admittedly senior and the Selection Board erred in law to ignore the seniority of the appellants which always has an edge for promotion in the service structure, submitted the learned counsel. He further submitted that where the findings have been recorded by a recommendatory body in violation of law and the rules on the subject, the same are not sacrosanct and immune from judicial review. The learned counsel submitted that the appellants were qualified under law to be promoted from the post of Dental Surgeon to that of Senior Dental Surgeon, the impugned notification issued by the Government and the recommendations made by the Selection Board are not sustainable. While supporting his argument that the appellants possessed the basic qualification for promotion to the post of Senior Dental Surgeon (B-18), he referred to the cases of Dr. Iqbal Mir and Dr. Zaffar Elahi, who were recommended and promoted as Senior Dental Surgeons, although they did not possess the qualification mentioned in serial No.19, column 7(ii). Mr. Mujahid Hussain Naqvi, the learned counsel, also attempted to argue that the Service Tribunal has decided the case on points which were not part of the pleadings, thus rendering the judgment of the Service Tribunal as illegal. To substantiate his arguments the learned counsel has referred to different authorities recorded by this Court.
6. Conversely ' it has been contended on behalf of the learned counsel for the respondents that the Selection Board was a necessary party which was not impleaded as such, therefore, the appeal filed by the present appellants in the Service Tribunal was not maintainable. While elaborating this argument it was submitted that the Government order dated 28-11-1996 was issued on the recommendations of the Selection Board which should have been impleaded in the line of respondents for justifying its recommendations. The necessary party having not been arrayed as a respondent, the appeal 'before the Service Tribunal was not competent. The case of the appellants was considered by the Selection Board and after judging the fitness of the appellants, they were not found eligible for promotion, therefore, the suitability to hold a post having been determined, the appeal before the Service Tribunal was not competent under law. If promotion to a post is subject to some professional training, it has to be completed before a valid claim could be made for promotion to a higher grade or the post. The appellants having not acquired the qualification of grading course from Armed Forces Medical College, the Selection Board rightly recommended respondents Nos.3 and 4 for promotion to the post of Senior Dental Surgeons (B-18), submitted the learned counsel. While interpreting the departmental rules, it has been forcefully contended that qualification prescribed in Serial No.19 Column No.7(i) and (ii) is to be read together as minimum qualification. In support of their contentions they have mainly relied upon the cases reported as Umar Din Kiani v. Azad Government and others 1995 SCR 166 and several other authorities from Pakistan jurisdiction.
7. After going through the record of the case in the light of the arguments advanced by the learned counsel for the parties, we find that following points need 'consideration to settle the controversy in hand:---
(a) Whether in the set of circumstances of the instant case the Selection Board was a necessary party to be impleaded as respondent in the appeal before the Service Tribunal,
(b) Whether the finding of the Selection Board determining the fitness of an incumbent to hold a post is sacrosanct and immune from judicial review,
(c) Whether the appellants were qualified or not for promotion to the post of Senior Dental Surgeon (B-18) under the Azad Jammu and Kashmir Health Department Service Rules, 1984; and
(d) Whether the courses mentioned in Serial. No.19 Column 7 of the schedule attached with the Health Department Service Rules, 1984 are in fact approved by the Pakistan Medical and Dental Council; if not, as stated by Dr. Shaoor Ahmed Shaoor, whether these courses have been approved and adopted by the Government of Azad Jammu and Kashmir as qualification.
8. Before dealing with these points it is felt necessary to mention it here that we summoned the record of the Selection Board which also includes the working paper forwarded by the Secretary of the Department. The admitted facts are that the appellants and respondents Nos.3 and 4 hold the Bachelor degree in Dental Surgery and at the time of selection they were qualified to be considered for promotion to the post of Senior Dental Surgeon (B-18) as provided by the entries of Column 8 of Serial No.19. The only qualification which the appellants lacked was that they did not possess any of the qualifications mentioned in Column 7(ii) whereas respondent No.3 Dr. Shaoor Ahmed Shaoor had additional qualification of grading in operative Dental Surgery from Armed Forces Medical College Rawalpindi and Dr. Shaukat Tanveer possessed the additional qualification of grading in dental surgery. Dr. Shaoor Ahmed Shaoor in his statement before the Service Tribunal has admitted that the grading course of one year which has been completed from the Armed Forces Medical College Rawalpindi, has not been approved by the Pakistan Medical and Dental Council.
9. The working paper forwarded by the Secretary of the Health Department was prepared on the basis of seniority. The appellants and respondents Nos.3 and 4, along with others, were considered eligible for promotion keeping in view their service record.
10. It may be mentioned here that when the cases of the appellants and the private respondents were placed before the concerned Selection Board, the appellants were not found eligible for promotion.
11. Now coming to the first point as to whether the Selection Board was a necessary party and had to be impleaded as respondent in appeal before the Service Tribunal, we feel advised to advert to the relevant provisions of the Azad Jammu and Kashmir Service Tribunal Act, 1975, the Azad Jammu and Kashmir Service Tribunal (Procedure) Rules, 1976 and the Azad Jammu and Kashmir Civil Servants (Appeal) Rules, 1991. Under section 4 of the Azad Jammu and Kashmir Service Tribunal Act, 1975, a civil servant can file an appeal before the appropriate tribunal. Subsection (1) of this section reads as under:---
"(1) Any civil servant aggrieved by any final order whether original or appellate, made by a departmental authority ??????????? ?prefer an appeal to the tribunal."
Under Rule 8 of the Azad Jammu and Kashmir Service Tribunal (Procedure) Rules, 1976, the parties to be impleaded as respondents have been mentioned. This rule 8 reads as under:--
"8??.In every memorandum of appeal, the competent authority shall be shown as the first respondent and thereafter all other parties to the dispute shall be shown as respondents." ? As far the term "authority" is concerned, it means a person or authority which is competent to appoint a civil servant or one designated as such to proceed against civil servants under the Azad Jammu and Kashmir (Efficiency and Discipline) Rules, 1977. It also includes functionaries of the State who can finally determine any right, term or condition of service of a civil servant.
12. A combined reading of the above-referred provisions reveals that the appeal before the Service Tribunal can be filed by a civil servant who is aggrieved by any final order whether original or appellate made by a departmental authority and in his memorandum of appeal he has to implead the competent authority as the first respondent and thereafter the parties to the dispute to be arrayed as other respondents.…
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