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Petitioner: ABDUL LATIF, SUPERINTENDENT, CENTRAL EXCISE AND SALES TAX, MIRPUR CIRCLE, AJ&K VS Respondent: SECRETARY, AZAD JAMMU AND KASHMIR COUNCIL, F-5/2, ISLAMABAD
2000 P L C (C
2000 P L C (C.S.) 210
[Supreme Court (A J & K)]
Present: Basharat Ahmad Shaikh and Muhammad Yunus Surkhavi, JJ
Civil Anneal No. 135 of 1998
Ch. ABDUL LATIF, SUPERINTENDENT, CENTRAL EXCISE AND SALES TAX, MIRPUR CIRCLE, AJ&K and 2 others
Versus
SECRETARY, AZAD JAMMU AND KASHMIR COUNCIL, F‑5/2, ISLAMABAD and 2 others
(On appeal from the judgment of the Federal Service Tribunal, dated 27‑7‑1998, in Service Appeal No.878‑R of 1997).
Civil Appeal No. 191 of 1998
MUHAMMAD HAMEED KHAN, INCOME‑TAX OFFICER/SUPERINTENDENT, CENTRAL EXCISE/ASSISTANT EXCISE AND TAXATION OFFICER, MUZAFFARABAD
Versus
ABDUL LATIF, SUPERINTENDENT, CENTRAL EXCISE BHIMBER CIRCLE, MIRPUR and others
(On appeal from the judgment of the Federal Service Tribunal, dated 2,7‑7‑1998, in Service Appeal No.841‑R of 1997).
Civil Appeal No. 192 of 1998.
MUHAMMAD HAMEED KHAN, INCOME‑TAX OFFICER/SUPERINTENDENT, CENTRAL EXCISE/ ASSISTANT, EXCISE AND TAXATION OFFICER, MUZAFFARABAD
Versus
MUHAMMAD KHAN, SUPERINTENDENT, CENTRAL EXCISE, BHIMBER CIRCLE, MIRPUR, AZAD KASHMIR and 2 others
(On appeal from the, judgment of the Federal Service Tribunal, dated 27‑7‑1998, in Service Appeal No. 842‑R of 1997).
Civil Appeal No. 193 of 1998.
MUHAMMAD HAMEED KHAN, INCOME‑TAX OFFICER/ SUPERINTENDENT, CENTRAL EXCISE/ASSISTANT EXCISE AND TAXATION OFFICER, MUZAFFARABAD
Versus
MUHAMMAD NAZIR ABBASI, PRESENTLY POSTED AS INCOME TAX OFFICER/SUPERINTENDENT, CENTRAL EXCISE/ASSISTANT EXCISE AND TAXATION OFFRICER, MUZAFFARABAD and 2 others
(On appeal from the judgment of the Federal Service Tribunal, dated 27‑7‑1998, in Service Appeal No.875‑R of 1997).
Civil Appeals Nos. 135 and 191 to 193 of 1998, decided on 16th April, 1999.
(a) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)‑‑‑
‑‑‑‑S. 4‑‑‑Service Tribunal (Procedure) Rules, 1974, R. 7‑‑‑Azad Jammu and Kashmir Service Tribunal (Procedure) Rules, 1976, R.8‑‑‑Civil service‑‑?Appeal before Service Tribunal‑‑‑Competency‑‑‑Appeal before Service Tribunal was filed without impleading Secretary of Azad Jammu and Kashmir Council who was Competent Authority in the case ‑‑‑Impleading Competent Authority as respondent in appeal was mandatory requirement of law which having not been fulfilled by appellant, appeal was not competent and liable to be dismissed on that ground.
Muhammad Ashraf Khan Kayani v. Azad Government and 4 others 1998 PLC (C.S) 110; Muhammad Resham Khan v., Chairman, Inspection Team and 3 others 1990 CLC 1355 and Mirza Lal Hussain v. Custodian of Evacuee Property 1992 SCR 214 ref.
(b) Azad Jammu and Kashmir Civil Servants Act, 1976‑‑‑
‑‑‑‑S.9‑‑Civil service‑‑‑Promotion against selection and non‑selection posts‑‑‑ Criteria‑‑‑ Promotion, against non‑selection posts had to be made on basis of seniority‑cum‑fitness, whereas in case of selection posts it had to be made on basis of selection on merits‑‑‑In case of non‑selection post if on a given date a civil servant had passed departmental examination, he had a right to be considered for promotion on basis of seniority irrespective of date of passing of departmental examination or the marks obtained by him‑‑‑If civil servant was found fit by Selection Authority, civil servant had to be promoted.
(c) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973‑‑‑
‑‑‑‑R.8(b)‑‑‑Civil service‑‑‑Appointment on acting charge basis such an application could be made when a post was vacant‑‑‑Only senior most civil servant could be promoted under R. 8(b) of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973‑‑ When most senior civil servant was fit for promotion and he also possessed specified length of service there was no room for appointment on acting charge basis‑‑‑When post fell vacant, matter should be referred to Departmental Promotion Committee as early as possible and promotion should be made on basis of recommendations of Selection Committee.
Fazal Ellahi Siddiqui, Advocate for Appellants (in Civil Appeal No. 135 of 1998).
Abdul Rashid Abbasi and Kh. Muhammad Aslam Habib, Advocate for Respondent No.3 (in Civil Appeal No. 135 of 1998).
M. Tabassum Aftab Alvi, Advocate for Appellant (in Civil Appeal No. 191 of 1998).
Fazal Ellahi Siddiqui, Advocate for Respondent (in Civil Appeal No. 191 of 1998).
M. Tabassum Aftab Alvi, Advocate for Appellant (in Civil Appeal No. 192 of 1998).
Fazal Ellahi Siddiqui, Advocate for Respondents (in Civil Appeal No. 192 of 1998).
M. Tabassum Aftab Alvi, Advocate for Appellant (in Civil Appeal No. 193 of 1998).
Abdul Rashid Abbasi and Kh. Muhammad Aslam Habib, Advocates for Respondent No.1? (in Civil Appeal No. 193 of 1998).
Date of hearing: 18th February, 1999.
JUDGMENT
BASHARAT AHMAD SHAIKH, J.‑‑‑These four appeals, which have been filed with leave of the Court, arise out of a single judgment of the Federal Service Tribunal Islamabad, which also acts as the Service Tribunal for Azad Jammu and Kashmir Council. The dispute in these appeals relates to seniority and promotion of five contesting civil servants which are inter connected. Common questions of law are also involved. Therefore, these appeals are being disposed of by this single judgment.
2. The service rights of five civil servants, namely, Muhammad Nazir Abbasi, Abdul Latif, Muhammad Khan, Zulfiqar Ali Mirza and Muhammad Hameed are involved in these appeals. They belong to the Taxation Group under the Azad Jammu and Kashmir Council. They held the posts of Inspector Income Tax‑cum‑Superintendent Excise and Taxation (B‑14) for a long time. Zulfiqar Ali Mirza and Muhammad Hameed were promoted on acting charge basis on 26th September, 1995, as Income Tax Officer‑cum-Superintendent Central Excise and Taxation in B.16. This order gave rise to a long drawn litigation consisting of two rounds. The present appeals are culmination of the second round. In the previous round a controversy about qualifying marks in the departmental examination was resolved by this Court. Before adverting to the merits of the present appeals, it is necessary to first note the facts and the ratio of the previous judgment.
3. It may first be stated that inter se seniority of the five civil servants as Inspectors (BPS.14) was not in dispute even in the previous round. The abovementioned inter se seniority is as follows:‑‑---
(i) Muhammad Nazir Abbasi
(ii) Abdul Latif,
(iii) Muhammad Khan
(iv) Zulfiqar Ali Mirza.
(v) Muhammad Hameed
4. On 26th September, 1995, Zulfiqar Ali Mirza and Muhammad Hameed Khan, placed at fourth and fifth places in seniority, were promoted as Income Tax Officers (B.16) on acting 'charge basis by ignoring the other three civil servants. The reason given by the competent Authority in the Azad Jammu and Kashmir Council was that an Inspector Income Tax could not be promoted as Income Tax Officer without passing the departmental examination by obtaining a minimum fifty per cent. marks. The matter was taken to the Service Tribunal by Abdul Latif and Muhammad Khan by filing separate appeals. These appeals were decided by different benches of the Service Tribunal which returned contradictory verdicts. The matter was then brought to this Court and was decided in C.A. No.86 of 1996 titled Abdul Latif v: Secretary, Azad Jammu and Kashmir Council and C.A. No.82 of 1996 titled Zulfiqar Ali Mirza and another v. Azad Jammu and Kashmir Council and others, both decided on 25th March, 1997, by holding that it was not a condition for promotion that fifty per cent. marks should be obtained while passing the departmental examination. This Court directed the Azad Jammu and Kashmir Council to review the matter of promotion of Abdul Latif for acting charge or regular promotion, as the case may be, in light of the above dictum.
5. Consequently, Azad Jammu and Kashmir Council Secretariat issued two notifications on 15th July, 1997. By one of them the acting charge promotions of Muhammad Hameed and Zulfiqar Ali Mirza were cancelled. By the other notification Zulfiqar Ali Mirza, Muhammad Hameed, Muhammad Khan and Abdul Latif were promoted on acting charge basis with immediate effect as Income Tax Officers (B.16). In this notification the names of the four civil servants were entered in the following order:‑‑
(i) Muhammad Hameed Khan.
(ii) Zulfiqar Ali Mirza.
(iii) Muhammad Khan.
(iv) Abdul Latif.
6. This order gave rise to a fresh dispute. Muhammad Nazir Abbasi was senior most amongst the five contesting civil servants but he was not given promotion although he had, passed the departmental examination and he claimed that he was entitled to be promoted in light of the dictum of this Court in the previous round. He, therefore, filed appeal before the Service Tribunal after exhausting the departmental remedy. Abdul Latif, Muhammad Khan and Zulfiqar Ali Mirza also filed appeals.
7. In his appeal the precise point raised by Muhammad Nazir Abbasi was that he was senior to Muhammad Hameed, Zulfiqar Ali Mirza, Muhammad Khan and Abdul Latif, and was entitled to be promoted in light of the dictum of this Court in the previous round. The reply given by the official respondents was that while it was true that Muhammad Nazir Abbasi had passed the departmental examination but Muhammad Hameed, Zulfiqar Ali Mirza and Muhammad Khan had passed the said examination earlier than Muhammad Nazir Abbasi. They took the position that a panel of Inspectors eligible for promotion to B.16 was drawn up in which the names of Inspectors were entered from the date of passing the departmental examination because it is only upon passing the examination that an Inspector became qualified for promotion. In the panel Muhammad Hameed was placed at No.1 because he qualified the examination in the 20th Examination. Zulfiqar Ali Mirza and Muhammad Khan were placed at Nos.2 and 3. It was stated that they passed the examination together in the 21st session but Muhammad Khan secured less marks and, for that reason he was placed below although he was senior. It was similarly stated that Abdul Latif and Muhammad Nazir Abbasi passed the departmental examination together in the 22nd session but Muhammad Nazir Abbasi, although senior, obtained less marks and for that reason his name was entered below the name of Abdul Latif in the promotion panel.
8. In his appeal before the Service Tribunal, Abdul Latif raised the grievance that although he had been promoted but he was unlawfully assigned a junior position in the notification by which four promotions were ordered. He asserted that his name should have been shown in the promotion notification at No.1 because he was senior most Inspector Income Tax in BPS‑14. He stated that Muhammad Hameed, Zulfiqar Ali Mirza and Mead Khan were junior to him but they had been assigned higher position in the promotion notification.
9. The reply of the official respondents was the same as in the case of Muhammad Nazir. Abbasi, namely, that those who had passed the examination earlier had prior right and, amongst those who had passed examination together, one who secured more marks was placed higher. In the appeal filed by him, Muhammad Khan adopted the position that he was entitled to be shown at No.2 in the promotion notification but had been placed at No‑3. He also contended that he was senior to respondents.Nos.3 and 4. The reply of the official respondents was the same as mentioned above.
10. Zulfiqar Ali Mirza stated in his appeal that he was duly promoted vide notification issued on 26th September, 1995, and he continued as such till 15th July, 1997, and his promotion had been cancelled due to wrong interpretation of the judgment of the Supreme Court in the previous round.
11. All the four appeals mentioned above have been disposed of by the Service Tribunal by a single Judgment. Muhammad Nazir Abbasi has accepted the judgment of the Service Tribunal while all the other civil servants have filed these four appeals with leave of the Court. Muhammad Hameed has filed three appeals while Abdul Latif, Muhammad Khan and Zulfiqar Ali Mirza have filed a joint appeal in which the private respondent is Muhammad Nazir Abbasi.
12. The Service Tribunal has rejected the view point of the official respondents and the appeal of Muhammad Nazir Abbasi has been accepted. The Tribunal has directed that he shall be promoted from 25th May, 1990, on regular basis with all back benefits.
13. We may first take up Civil Appeal No.193 of 1998. Muhammad Hameed Kh1n has impleaded, apart from official functionaries, Muhammad Nazir Abbasi as the private respondent. This appeal turns on a point, which is not common with other appeals. Mr. M. Tabassum Aftab Alvi, the learned counsel for the appellant, raised the objection that in the appeal filed by him before the Service Tribunal, Muhammad Nazir Abbasi did not implead Secretary of the Azad Jammit and Kashmir Council as a respondent which is a mandatory requirement of law and, therefore, the appeal not being properly constituted, should have been dismissed on that short ground. In support of his contention the learned counsel relied on rule 7 of the (Pakistan) Service Tribunal (Procedure) Rules, 1974, and also a judgment of this Court reported as Muhammad Ashraf Khan Kayani v. Azad Government and 4 others (1998 PLC (C. S) 110). The said rules were framed by the Federal Government in exercise of powers conferred by section 8 of the Service Tribunals Act, `1973. Rule 7 lays down as follows:‑‑
"(7) In every memorandum of appeal, the competent Authority against whose orders the appeal is preferred and any other party to the dispute shall be shown as respondents."
14. In Muhammad Ashraf Khan Kayani's case this Court held in para. 15 of the report that under rule 8 of the Azad Jammu and Kashmir Tribunal (Procedure) Rules, 1976, which has the same phraseology as rule 7 under reference, it is a mandatory requirement of law that the competent Authority be impleaded as a respondent and if the competent Authority is not arrayed as a respondent, neither the appeal is competent nor an effective order can be passed. It was held in para. 13 of the report that:‑‑
"The requirement that the competent Authority be impleaded as a party is analogous to a similar requirement in writ petition. The basic requirement of law in exercise of writ jurisdiction of High Court is that if an order of a public functionary has to be challenged in the High Court through a writ petition that functionary must be impleaded as a party. Similarly if a direction or prohibition is sought against a public functionary that functionary is a necessary party without which neither a writ petition is maintainable nor an effective order can be passed. Requirement of the law in dealing with service platter is that if an order adversely affecting the interest of a particular party has been passed by a competent Authority, that Authority must be impleaded as real respondent in an appeal before the Service Tribunal. Service Tribunal Act, and the rules framed thereunder are special statutes and a specific provision being provided in the rules i.e. rule 8, any party being found guilty of violation of the rules is not entitled to any relief and the appeal filed by that party without impleading the competent Authority as respondent, the same becomes incompetent. "
15. Briefly stated facts of the case were that the learned Judges of the Azad Jammu and Kashmir High Court determined the seniority of District and Sessions Judges with the approval of the Government. Muhammad Ashraf Kayani challenged the seniority list by filing appeal before the Service Tribunal which was dismissed. He was subsequently granted leave to appeal in this Court. A new point was taken on behalf of the other side that the appeal filed by Muhammad Ashraf Kayani entitled dismissal because he had not impleaded the High Court as one of the respondents. It was contended that the Registrar of the High Court was impleaded as a respondent but he could not be a substitute for the High Court. This plea, raised for the first time, with permission of the Court, during arguments in this Court, was upheld and, following the earlier judgments in Muhammad Resham Khan v, Chairman, Inspection Team and 3 others 1990 CLC 1355, Mirza Lal Hussain v. Custodian of Evacuee Property (1992 SCR 214) and some unreported cases, the appeal filed by Muhammad Ashraf Kayani before the Service Tribunal was dismissed on that score.
16. Mr. Abdul Rashid Abbasi, learned counsel for respondent Muhammad Nazir Abbasi, argued that the order against which appeal was filed was issued by the Member Board of Revenue of the Azad Jammu and Kashmir Council who was duly impleaded as a respondent. This explanation is not acceptable in view of the mandatory requirement of rule 7 (supra) because the order was passed by Member Board of Revenue of the. Azad Jammu and Kashmir Council but it was specifically mentioned in‑it that the order was being issued with approval of the competent Authority which clearly indicated that Member Board of Revenue was not the competent Authority but he had only issued the order. The order may be usefully reproduced:‑‑
"AZAD JAMMU AND KASHMIR COUNCIL SECRETARIAT
AJ&K COUNCIL BOARD OF REVENUE
Sector F‑5/2 Islamabad, the 15th July, 1997
NOTIFCATION'
No.E‑II‑2/4/96‑AJKC‑‑‑Consequent upon the Supreme Court of Azad Jammu and Kashmir's Judgments, dated 25th March, 1997, in Civil Appeals Nos.82 of 1996 and 86 of 1996 and after re-declaration of the Results of Departmental Examinations in the light of High Court of Azad Jammu and Kashmir's Judgment, dated 31st May, 1997, and due consideration afresh by the Standing Departmental Promotion Committee and thereafter, on approval of the Competent Authority, the Acting Charge appointments' of M/s Zulfiqar Ali Mirza and Muhammad Hameed Khan, Inspectors Income Tax‑cum‑Excise and Taxation (BS. 14 S/Scale)/ Deputy Superintendent Central Excise (BS. 14) made vide Notification No.E‑II‑2 /5/93‑AJKC, dated 26‑9‑1995, to higher posts of Income Tax Officer‑cum‑Superintendents Central Excise/Assistant Excise and Taxation Officers (BS. 16) are hereby cancelled with immediate effect.
(Sd.) (JALEES AHMAD SIDDIQI), SENIOR JOINT SECRETARY/MEMBER. "
17. It was. pointed out by Mr. M. Tabassum Aftab Alvi, the learned counsel for the appellant, that it is laid down in title 6 of the Civil Servants (Appointment, Promotion, and Transfer) Rules, 1973, that Secretary of the Ministry/Division or head of the department, if in B‑20, shall be the appointing authority for posts in B‑3 to 16. Mr. M. TAbassum Aftab Alvi also pointed out that when Muhammad Nazir Abbasi filed departmental appeal against the order of the 15th July, 1997, subsequently challenged before the Service Tribunal, he addressed the appeal to "Honourable Prime Minister Islamic Republic of Pakistan and Chairman Azad Jammu and Kashmir Council" which was only maintainable if the original order has been passed by the Secretary of the Azad Jammu and Kashmir Council. He contended that if the original order had been passed by Member Board‑ of Revenue then Muhammad Nazir Abbasi would have filed appeal before the Secretary of the Azad Jammu and Kashmir Council and not the Chairman.
18. We find force in this objection. It is clear from the phraseology of the notification reproduced above as well as the two submissions of Mr. M. Tabassum Aftab Alvi, mentioned above, that Member Board of Revenue, who was impleaded as a respondent. was not the authority who had passed the order challenged by Muhammad Nazir Abbasi. Thus, it is clear that the competent, Authority was not impleaded as respondent. The aforesaid conclusion is fortified by the fact that against the same order three other appeals were filed, before the Service Tribunal and in each of them Secretary' Azad Jammu and Kashmir Council was duly impleaded as a respondent. The appeals are;---
(1) Appeal No. 841 (R) of 1997 titled Abdul Latif v. Secretary Azad Jammu and Kashmir Council and 4 others.
(2) Appeal No. 878 (R) of 1997 titled Mirza Zulfiqar Ali v. Secretary Azad Jammu and Kashmir Council and 4 others; and
(3) Appeal No. 842 (R) of 1997 titled Muhammad Khan v. Secretary Azad Jammu and Kashmir Council and 4 others.
These are the appeals which were disposed of by the Service Tribunal by the judgment under appeal. Following Muhammad Ashraf Kayani's case we hold that the appeal filed by Muhammad Nazir Abbasi was liable to be dismissed on the short ground that it had been filed in violation of mandatory requirement of rule 7 of the Service Tribunals (Procedure) Rules. Consequently C.A. No.193 of 1998 is accepted and the order passed by the Service Tribunal in Appeal No. 875(R) of 1997 titled Muhammad Nazir Abbasi v. Azad Jammu and Kashmir Council etc. is vacated and the appeal filed by Muhammad Nazir Abbasi before the Service Tribunal is dismissed without any order as to costs.
19. In the previous para. We have ordered the dismissal of the appeal filed by Muhammad Nazir Abbasi before the Federal Service Tribunal and has also vacated the judgment of the Federal Service Tribunal by which the said appeal was accepted. Appeal No. 135 (Mpr:) of 1998 titled Ch. Abdul Latif arid others. v. Secretary Azad Jammu and Kashmir Council and others, has been filed by Ch. Abdul Latif, Ch. Muhammad Khan and Zulfiqar Ali Mirza in order to challenge the order passed by the Federal Service Tribunal in the appeal filed by Muhammad Nazir Abbasi. Therefore, the purpose for which Ch. Abdul Latif and others have filed the appeal has been achieved. However, there is another aspect to which we would like to advert. Leaving aside the other matters which will be discussed later on, two things need to be stated here. First that the Service Tribunal has ordered the regular promotion of Muhammad Nazir Abbasi but he had not until that stage of time cleared by the Departmental Promotion Committee which is a mandatory requirement for promotion. Secondly, 25th May, 1990, is a date which has no foundation regarding promotion of Muhammad Nazir Abbasi. This date seems to have been taken from the memorandum of appeal filed by Muhammad Nazir Abbasi in the Service Tribunal in which he stated that he was entitled to be granted Selection Grade (B‑16) as Inspector Income Tax. He did not state that a post of Income‑tax Officer (B‑16) was vacant on that date or that he was due for promotion on the above date. It is even otherwise not on the record that there was a vacant post of Income Tax Officer in (B‑16) on 25th May, 1990, against which Muhammad Nazir Abbasi's promotion has been ordered. Fact of the matter is that from amongst the five civil servants who were involved in the present litigation the first promotions to the post of Income Tax Officer (B‑16) were ordered on 26th September, 1995, when Zulfiqar Ali Mirza and Muhammad Hameed were promoted on acting charge basis. These are the promotions which were challenged by Abdul Latif whose appeal, being Appeal No. 86 of 1990, already discussed in detail, was accepted. Therefore, according to the record if there was an available post it was on 26th September, 1995, at the earliest. Therefore, the order passed by the Federal Service Tribunal in favour of Muhammad Nazir Abbasi in the appeal under reference is clearly unsustainable. Therefore, Appeal No. 135 (Mpr.) of 1998 is accepted and the order passed by the Federal Service Tribunal in Appeal No. 875 of 1997 titled Muhammad Nazir Abbasi v. Azad Jammu and Kashmir Council is vacated.
20. We now turn to the other two appeals, also filed by Muhammad Hameed. In the other three appeals the Service Tribunal passed the following order:‑‑---
?Similarly official respondents are directed to appoint all the incumbents to B‑16 on regular basis from due dates keeping in view their inter se seniority as in the lower posts i.e. B‑14 which seniority will remain intact in case of their promotion to B‑16 unless someone has otherwise been adversely affected but no such adverse material is available on the record and as such their inter se seniority as in the lower grade i.e. B‑14 as Inspector, Income‑tax‑cum‑Excise and Taxation will remain intact as required under rule 3(b) of the Civil Servants (Seniority) Rules, 1993.
All the appeals are hereby disposed of in the above terms with no order as to costs. All concerned may be informed accordingly."
21. The promotions challenged before the Service Tribunal were based on the following formula:‑--
(a) An Inspector who passed the departmental examination earlier was given priority; and
(b) Where more than two or more Inspectors had passed the departmental examination together, one who had obtained more marks was placed higher.
No rule or law has been put forward in the Service Tribunal or in this Court to support this basis. Under section 9 of the Civil Servants Act a Civil Servant possessing prescribed qualifications is eligible for promotion to higher post reserved for departmental promotion. According to the…
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