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Petitioner: INAYATULLAH CHAUDHRY VS Respondent: AZAD JAMMU AND KASHMIR GOVERNMENT
1990 P L C (C
1990 P L C (C.S.) 598
[Supreme Court Azad J&K]
Present: Raja Muhammad 10turshid Khan, CJ. And Sardar Said Muhanunad Khan, J
INAYATULLAH CHAUDHRY and others
Versus
AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary and others
Civil Appeals Nos. 37 to 40 of 1988, decided on 12th March, 1990.
(On appeal from the judgment of the Service Tribunal dated 5‑4‑1988 in Appeals Nos. 356 and 358 of 1987).
(a) Evidence Act (I of 1872)‑‑
‑‑‑S.138‑‑Cross‑examination‑‑Omission‑‑‑Effect‑‑‑Failure to cross‑examine a witness on a controversial point could tantamount to admitting such point irrespective of intrinsic value of the statement of witness.
(b) Evidence Act (I of 1872)‑‑
‑‑‑S.102‑‑‑Onus of proof is material only if the evidence is found evenly balanced‑‑‑When both sides adduce evidence in support of their respective contentions and a Tribunal or a Court comes to a definite conclusion, question of onus of proof loses its importance, unless, the evidence is so balanced that decision on controversial points in one way or the other is not possible.
Mst. Zar Jan v. Mst. Najmun Nisa and others P L D 1969 Pesh. 118; Mst. Kubra Begum v. Muhammad Yasin P L D 1983 SC (AJ&K) 56 and Saleh Muhammad Khan v. Hassan Muhammad Khan 1981 C L C 353 ref.
(c) Evidence Act (1 of 1872)‑‑
‑‑‑S. 61‑‑‑Unattested photostat copy of a document is inadmissible in evidence and no reliance can be placed on it.
(d) Azad Jammu and Kashmir Service Tribunal (Procedure) Rules, 1976‑‑
‑‑‑S. 14(2)‑‑‑Where a party had tiled affidavit in support of averments made in the memo of appeal and the opposite party did not require him to put himself in witness‑box for cross‑examination, non‑appearance of such party in witness‑box would not prove case of his opponent.
(e) Civil service‑‑
‑‑‑Seniority‑‑‑Only the appointing authority would be competent to determine seniority of contending parties‑‑Nothing on record to show that such powers had been delegated to any functionary‑‑‑Directions issued by appointing authority to functionary merely directed him to determine the seniority of civil servants and submit the same to appointing authority for perusal.
(f) Azad Jammu and Kashmir Civil Servants (Appeal) Rules, 1982‑‑
‑‑‑S. 7‑‑‑Review‑‑‑Competency‑‑‑Review against the order passed in appeal was competent.
(g) Azad Jammu and Kashmir Government Act, 1970‑‑
‑‑‑S. 19‑‑‑Government of Azad Jammu and Kashmir Rules of Business, 1971‑‑?Rules of Business 1971, having been framed under S. 19, Azad Jammu and Kashmir Act, 1970, arc statutory Rules, which have force of law.
P L D 1978 SC (AJK) 37 rel.
(h) Azad Jammu and Kashmir Civil Service Rules, 1977‑‑
‑‑‑R. 1‑‑‑Government of Azad Jammu and Kashmir Rules of Business, 1971, R.17‑‑‑Provisions of R. 17 of the Rules of Business, 1971, which governed the appointment, promotion and other conditions of civil servants would prevail against any Rule of Azad Jammu and Kashmir Civil Service Rules, 1977.
(i) Government of Azad Jammu and Kashmir Rules of Business, 1971‑‑
‑‑‑R. 17‑‑‑Promotion/transfer from one service to another service could be ordered only after consultation with Public Service Commission‑‑‑Acceptance/ non‑acceptance of advice of Public Service Commission‑‑‑Essentials‑‑‑Provisions of R.17, Rules of Business, 1971 are mandatory and not directory in nature.
Under rule 17(3), the advice of Public Service Commission was ordinarily to be accepted by the Department concerned. However, in case the department concerned was not inclined to accept the same, the matter had to be submitted to the President through the Department of Service and General Administration who was to refer the matter again to the Public Service order of merit assigned by the Selection Authority i.e. Public Service Commission.
(t) Civil service‑‑
‑‑‑Seniority‑‑‑Supreme Court, keeping in view initial recruitment of civil servants and assignment of seniority to them by Public Service Commission, worked out seniority of contesting civil servants.
S.M. Jalal‑ud‑Din Akbar Zaidi v. Secretary, Establishment Division 1984 P L C (C.S.) 219 and Raja Muhammad Ashraf Kayani v. Azad Government 1989 P L C (C.S.) 561 ref.
(u) Azad Jammu and Kashmir Civil Servants Act, 1976‑‑
‑‑‑S.22‑‑Government has power to make any just and equitable order in case of civil servant under provision of S. 22, Azad Jammu and Kashmir Civil Servants Act, 1976.
Abdul Rashid Abbasi, Advocate for Appellant (in Civil Appeal No. 37 of 1988)
Respondent No. 1: Ex parte:
Sh. Abdul Aziz for Respondent No. 2 (in Civil Appeal No. 37 of 1988).
Muhammad Saeed and Muhammad Hanif, Advocates for Respondents Nos. 3 and 6 (in Civil Appeal No. 37 of 1988).
Respondents Nos. 4 and 5: Ex parte (in Civil Appeal No. 37 of 1988).
Sardar Rafique Mahmood Khan for Appellant (in Civil Appeal No. 38 of 1988),
Respondents Nos. 1 to 3: Ex parte (in Civil Appeal No. 38 of 1988).
Sh. Abdul Aziz for Respondent No. 4 (in Civil Appeal No. 38 of 1988).
Muhammad Saeed and Muhammad Hanif, Advocates for Appellant (in Civil Appeal No. 39 of 1988).
Abdul Rashid Abbasi for Respondent No. 1 (in Appeal No. 356 of 1987).
Respondents Nos. 2 to 4: Ex parte (in Appeal No. 356 of 1987).
Sh. Abdul Aziz for Respondent No. 5 (in Appeal No. 356 of 1987).
Respondent No. 6 in person.
Sardar Rafique Mahmood Khan for Respondent No. 7 (in Appeal No. 356 of 1987).
Muhammad Saeed and Muhammad Hanif for Appellant (in Appeal No. 358 of 1987).
Sardar Rafique Mahmood Khan, Advocate for Respondent No. 1.
Respondents Nos. 2 to 4: Ex parte (in Civil Appeal No. 40 of 1988).
Sh. Abdul Aziz, Advocate for Respondent No. 5 (in Civil Appeal No. 40 of 1988)
Respondent No. 6 in person.
Abdul Rashid Abbasi, Advocate for Respondent No. 7 (in Civil Appeal No. 40 of 1988).
JUDGMENT
SARDAR SAID MUHAMMAD KHAN, J.‑The above entitled four appeals have arisen out of a single consolidated judgment of the Service Tribunal dated 5‑4‑1988? whereby the three appeals filed by Inayatullah Chaudhry? Muhammad Ilyas and Iqbal Ratial were disposed of.
The matter in controversy pertains to the seniority of the appellants and the contesting respondents who were appointed as Assistant Engineers in Electricity Department. As the common questions of law and facts are involved in these appeals, we propose to dispose of these appeals by this single judgment.
Inayatullah Chaudhry and others challenged the validity of the order of the Government dated 22‑1‑1983 before the Service Tribunal.
Inayatullah Chaudhry has assailed the order of Service Tribunal to the extent of respondents, Muhammad Ashraf and Iqbal Mohi‑ud‑Din, who were declared senior to him; Muhammad Ilyas has questioned the order of Service Tribunal contending that the Service Tribunal has erred in confirming the impugned order of the Government whereby Muhammad Ashraf, respondent, was declared senior to him; and Mushtaq Ahmad Gorsi has filed two appeals against the order of Service Tribunal whereby respondents, Inayatullah Chaudhry and Sardar Muhammad Ilyas were declared senior to him.
Briefly the case of the appellant, Inayatullah Chaudhry, is that he alongwith lqba1 Mohi‑ud‑Din and Mushtaq Ahmad Gorsi, respondents, was approved by the Public Service Commission in the year 1978. Consequently all of them were appointed as Assistant Engineers in Electricity Department on 28‑9‑1978; in the merit list he was shown senior to respondents Iqbal Mohi‑ud?Din and Mushtaq Ahmed Gorsi; Sardar Muhammad Ashraf was approved by the Public Service Commission as Assistant Engineer in the Electricity Department and was confirmed as such on 20‑1‑1982. Previous to that he was appointed as Assistant Engineer on ad hoc basis and, thus, he was junior to the appellant. The appointing authority directed the Secretary Electricity/P.W.D., Azad Jammu and Kashmir, to prepare the seniority list on the basis of merits and submit the same to the Government for perusal. The Secretary Works submitted the report dated 18‑8‑1981 wherein Sardar Muhammad Ashraf, respondent, was shown senior to the appellant while Iqbal Mohi‑ud‑Din, Sardar Muhammad Ilyas and Mushtaq Ahmed Gorsi, respondents, were shown junior to him. The Government, respondent, vide its order dated 22‑1‑1983 disturbed the seniority proposed by the Secretary Works and declared respondents, Muhammad Ashraf, Iqbal Mohi‑ud‑Din and Mushtaq Ahmed Gorsi, senior to the appellant. A review petition was filed by the appellant against the said order but the same was also dismissed on 31‑7‑1983 but the result was communicated to the appellant on 3‑3‑1987. The appellant filed an appeal against the orders of the Government dated 22‑1‑1983 and 31‑7‑1983 before the Service Tribunal. The Sevice Tribunal after hearing the appeal only partly accepted it to the extent of Mushtaq Ahmed Gorsi, respondent, and dismissed it so far as Sardar Muhammad Ashraf Khan and Iqbal Mohi‑ud‑Din were concerned.
Sardar Muhammad Ilyas has assailed the judgment of the Service Tribunal alleging that he was placed on merit list at serial No. 3 by the Public Service Commission. Muhammad Ashraf, respondent, who was an employee of Planning and Development Department was posted in the Electricity Department by transfer on July 15, 1974; he was sent back to his parent department on December 1, 1974, though he was ordered to continue working in the Electricity Department as before. Muhammad Ashraf, respondent was confirmed as Assistant Engineer in the Electricity Department on 20‑1‑1982 and thus was junior to him but he has been declared senior to him despite the fact that the appellant was confirmed as Assistant Engineer much earlier.
Mushtaq Ahmed Gorsi, as pointed out earlier, has questioned the legality of the impugned order of the Service Tribunal and claims that as he had joined service of Electricity Department earlier than respondents, Inayatullah Chaudhry, Muhammad Ilyas and Muhammad Ashraf, so he has been wrongly declared junior to them.
An objection was raised before the Service Tribunal that the appeals filed by Inayatullah Chaudhry and Muhammad Ilyas before the Service Tribunal were time‑barred but the contention did not find favour with the Tribunal. It has been contended in this Court by the learned counsel for the respondents that the appeals of the aforesaid appellants before the Service Tribunal were not only time‑barred but the same were also incompetent because the order, whereby the Secretary Works determined the seniority of the contending parties, was a final order which was challenged before the Government by way of appeals. Thus, the subsequent review petition against the order of the Government passed in exercise of the appellate jurisdiction was not competent in view of the relevant rules.
Before dealing with other points involved in these appeals, it is desirable first to deal with the point as to whether the appeals filed by Inayatullah Chaudhry and Muhammad Ilyas before the Service Tribunal were time‑barred and whether the review petitions before the Government were competent because there was no provision in law to file a review petition against an order passed in exercise of appellate jurisdiction. Dealing with the point as to whether the appeals filed by Inayatullah Chaudhry and Muhammad Ilyas, appellants herein, to the Service Tribunal were time‑barred, it has been contended by the learned counsel for the respondents that findings of the Service Tribunal that the order of the President/Chief Executive dated 31‑7‑1983 was not communicated to appellants and they came to know about the same on 3‑3‑1987 is incorrect in view of the evidence on the record. They have referred to the statement of Mushtaq Ahmed, appelllant, lqbal Mohi‑ud‑Din, respondent, and Ali Muhammad, Section Officer, Department of Services and General. Administration, and have contended that it is amply proved by the statements of the said witnesses that the orders passed on review petitions by the President/Chief Executive on 31‑7‑1983 were duly communicated to the appellants in time. It leas been contended that Inayatullah Chaudhry, at the relevant time, was posted iii` the office of the Chief Engineer at Muzaffarabad and, thus, he obtained the copy of the order from the office himself, whereas Muhammad Ilyas, appellant, was handed over the copy of the order by a peon, as is evident from the photostat copy of the peon‑book, Dy/3. It has been further argued that as the statements of Mushtaq Ahmed, Iqbal Mohi‑ud‑Din and Ali Muhammad, Section Officer, have not been challenged on the point by the appellants by way of cross‑examination, their testimony on the point would be deemed to have been admitted by the appellants. The learned counsel for the respondents have referred to the case reported as Mst. Zar Jan v. Mst. Najmun Nisa and others P L D 1969 Pesh. 118, in support of the contention that failure to cross‑examine a witness is tantamount to admit his statement. It was further argued that the onus of proof that the appeal was filed within the period of limitation was on the appellants and they have failed to discharge the same.
In reply it has been argued that so far as the communication of the order dated 31‑7‑1983 to Inayatullah Chaudhry is concerned, none of the witnesses has stated that the copy of the same was handed over to him in his presence. There is no other evidence, oral or documentary, in support of the fact that the copy of the order in question was communicated to him. It was further contended that failure to cross‑examine a witness does not amount to admit his statement as true. The learned counsel for the appellant has further contended that Ghulam Muhammad, Administrative Officer of the Office of the Chief Engineer, who appeared as witness before the Service Tribunal, stated that no spare copies of the order in question were received by the office of the Chief Engineer nor any such copies were delivered to Inayatullah Chaudhry or Muhammad Ilyas, appellants, but he was not cross‑examined by the respondents. Thus, it was contended on behalf of the appellants that if the contention of the learned counsel for the respondents that omission to cross‑examine a witness on a point is tantamount to admit the same, the plea of the respondents that spare copies of the order in question were sent to the Office of the Chief Engineer for delivering the same to the persons concerned, i.e., the appellants, would stand falsified because they did not cross‑examine Ghularn Muhammad. It has been further contended that the appellants had supported the factum of non‑communication of the order in question by filing affidavits in support of the contents of their memos. of appeals and thus the onus of proof of the fact that the orders passed on review petitions were communicated to the appellants shifted to the respondents; especially so when no counter‑affidavits, except Mushtaq Ahmed Gorsi, respondent, were filed by the other respondents. The learned counsel for the appellants have referred to a case reported as Mst. Kubra Begum v. Muhammad Yasin P L D 1983 SC (AJ&K) 56, in support of their contention that the question of onus, as a determining factor; in a case arises only where the evidence on the record is evenly balanced and not otherwise. It has been further maintained that if there is, prima facie, proof of a fact the burden of proof of the same shifts to other side. A reference was made to a case reported as Saleh Muhammad Khan v. Hassan Muhammad Khan 1981 C L C 353, in support of the contention that burden of proof continues changing during the trial and does not remain static.
We have given our due consideration to the arguments advanced by the learned counsel for the parties on the point as to whether the order passed on 31‑7‑1983 is proved to have been communicated to the appellants much earlier than 3‑3‑1987 as alleged by the respondents. We are unable to subscribe to the contention of the learned counsel for the respondents that failure to cross-?examine a witness on a controversial point would tantamount to admit such point,
irrespective of intrinsic value of the statement of witness. The perusal of the record shows that the respondents have also not cross‑examined Ghulam Muhammad, Administrative Officer of the Office of the Chief Engineer, who has stated that no spare copies were received by the Office of the Chief Engineer from the Department of the Services and General Administration. The case of the respondents is that spare copies were sent to the office of the Chief Engineer, for delivering the same to the appellants. If the theory propounded by the learned counsel for the respondents regarding the effect of non‑cross‑examination is accepted as correct, their contention regarding the delivery of copies to the appellants by the Office of the Chief Engineer stands falsified on the short ground of non‑cross‑examination of Ghulam Muhammad: there is no other direct evidence that the copy of the order was delivered to Inayatullah Chaudhry, appellant. The mere fact that Inayatullah Chaudhry, appellant was posted in the Office of the Chief Engineer at the relevant time does not prove the factum of the delivery of the copy of the order to him, specially so when according to the statement of Ghulam Muhammad, Administrative Officer, no spare copies were received by the office of the Chief Engineer.
So far as the question of onus of proof is concerned, that is material only if the evidence is found evenly balanced. When both sides adduce evidence in support of their respective contentions and a Tribunal or Court comes to a definite conclusion, the question of onus of proof loses its importance, unless, of course, the evidence is so balanced that the decision on the controversial points in one way or the other is not possible. The photostat copy, Dy/3 of the peon‑book pertains to delivery of the copy of the order to Muhammad Ilyas, appellant. This copy was brought on record subject to objection by the counsel for Muhammad Ilyas, appellant. It is an unattested photostat copy not shown to have been' compared with the original. It was brought on record by Mushtaq Ahmed, I respondent, when he appeared as witness. The Dy/3 being an unattested photostat copy is inadmissible in evidence and no reliance can be placed on it. If the copy of the order dated 31‑7‑1983 was delivered to Muhammad Ilyas; appellant, by peon, as is the case of the respondents, the concerned peon should have been produced as witness alongwith the original peon‑book. There is no other evidence to prove that in fact the order in question was communicated to Muhammad Ilyas, except that during the relevant period he was also posted at Muzaffarabad. So far as the argument that Inayatullah and Muhammad Ilyas appellants, have not put themselves in the witness‑box to rebut the statement of Mushtaq Ahmed, appellant, Iqbal Mohi‑ud‑Din, respondent, and Ali Muhammad, Section Officer, is concerned, it may be observed that if the statements of the said witnesses do not prove the alleged fact then mere fact that the appellants did not appear as witnesses would not prove the said fact especially so when the said appellants had filed affidavits in support of the averments made in the memos of appeals riled and the respondents did not require them to put themselves in the witness‑box for cross‑examination as envisaged under Rule 14(2) of the Rules known as the Azad Jammu and Kashmir Service Tribunal (Procedure) Rules, 1976. Even if it is assumed for the sake of argument that the spare copies were transmitted to the Office of the Chief Engineer for delivering the same to the concerned parties, i.e., the appellants, it cannot be presumed that the same were in. fact delivered to them. The relevant order of the Department of Services and General Administration does not record that spare copies were sent to the Office of the Chief Engineer for delivering the same to the parties concerned; rather the order indicates that the copies of the same were sent to the concerned by the Services and General Administration Department itself and not through the Office of the Chief Engineer. Thus, we are not persuaded to disturb the finding of the Service Tribunal on the point that the order dated 31‑7‑1983 is not proved to have been communicated to Inayatullah Chaudhry and Muhammad Ilyas, appellants, as alleged by the respondents. Therefore, the appeals filed by Inayatullah Chaudhry and Muhammad Ilyas before the, Service Tribunal were within time.
Next, it has been argued by the learned counsel for the respondent Iqbal Mohi‑ud‑Din, that the review petitions before the President/Chief Executive were not competent because the appellants had preferred an appeal against the order of the Secretary Works whereby the seniority of the parties was determined. According to the learned counsel for the respondent there is no law giving right of review against an order passed on appeal. The learned counsel has maintained that the order of the Secretary Works dated 18‑8‑1981, was passed in pursuance of the order of the President/Chief Executive whereby the Secretary was directed to determine the seniority of the Assistant Engineers and submit the same to the President/Chief Executive. It was contended that the order of Secretary Works was assailed by the concerned appellants by filing appeals to the President/Chief Executive and thus the orders passed on their appeals were not open to review.
In reply it has been contended that the order of the Secretary Works was not an appealable order, because he was not competent to determine the seniority of the parties concerned; only the appointing authority, which in the instant case was the President/Chief Executive, was competent to determine the seniority of the contending parties. It was for this reason that the President/Chief Executive directed the Secretary Works to consider the question of seniority of the parties according to rules and submit the same for his perusal. All the parties concerned filed objections to the report submitted by the Secretary Works, though the objections were wrongly couched in form of appeals. It has been argued that mere fact that objections were incorrectly couched as appeals and were disposed of as appeals could not create a right of appeal against the order of the Secretary Works who otherwise had no jurisdiction either to determine the seniority of the parties or pass a final order. The order of the Secretary Works proposing the seniority of the parties concerned was merely a report for the guidance of the President/Chief Executive. The Secretary Works was not competent to determine the seniority of the parties nor any such power could be delegated to him: even if it is assumed for the sake of argument that any such power could be delegated by the President/Chief Executive to the Secretary, no such order was passed by the President/Chief Executive. In alternative, it was argued that the Azad Jammu and Kashmir Service Tribunal (Appeal) Rules, 1982, were enforced on 12‑10‑1982 and under rule 7 of the said rules, a review petition against an order passed in exercise of appellate jurisdiction is competent.
After considering the points raised by the learned counsel for the parties we are of the view that only the appointing Authority, which in the instant case was the President/Chief Executive, was competent to determine the seniority of the contending parties. No law was cited that the power to determine the seniority could be delegated to the Secretary Works. Even if it is assumed that such powers could be delegated to the Secretary by the President the perusal of the letter dated 6‑7‑1981 shows that no order was passed by the President/Chief Executive delegating the powers to the Secretary for determining the seniority of F the Assistant Engineers. The direction issued to the Secretary Works cannot be interpreted as order where by the powers to determine the seniority were delegated to the Secretary. The order merely directs the Secretary to determine the seniority of the employees and submit the same to him for perusal. Even if there would have been no objections by the parties concerned against the repor; of the Secretary Works dated 18‑8‑1981 the President/Chief Executive being the competent authority to determine the seniority could pass any order it deemed proper, irrespective of the opinion of the Secretary Works. Thus, we are not impressed by the argument that the order of the President/Chief Executive dated 22‑1‑1983 would be deemed an order passed on the appeals of the appellants; rather the same would be regarded as an order passed under the powers vested in him in exerise of original jurisdiction. Even otherwise, in view of the rule 7 of the Azad Jammu and Kashmir Civil Servants (Appeal) Rules 1982, a review against the order passed on appeal was competent. Thus, even if it is assumed that the P order dated 22‑1‑1983 would be deemed to have been passed in exercise of…
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