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Petitioner: SAJID HUSSAIN VS Respondent: MUHAMMAD LATIF
1992 P L C (C
1992 P L C (C.S.) 421
[Supreme Court of Pakistan]
Present: Sardar Said Muhammad Khan, CJ., Sardar Muhammad Ashraf Khan
and Basharat Ahmed Sheikh, JJ
Civil Appeal Nos.35 of 1990
Syed SAJID HUSSAIN
Versus
Ch. MUHAMMAD LATIF and others
(On appeal from the order of the Service Tribunal, dated 8-4-1990 in Service Appeal No.398 of 1988).
Civil Appeal No.36 of 1990
AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through its Chief Secretary and another
Versus
CH. MUHAMMAD LATIF, ADDITIONAL SECRETARY, SERIVCES AND GENERAL ADMINISTRATION DEPARTMENT, AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR and another
(On Appeal from the order of the Service Tribunal dated 8-4-1990, in Service Appeal No.398 of 1988).
Civil Appeals Nos.35 and 36 of 1990, decided on 12th December, 1991.
(a) Civil Procedure Code (V of 1908)--
----S.2(9)---Judgment---Judgment can always be altered or added to at any time before its pronouncement in open Court.
(b) Judgment--
----Judgment can always be altered or added to at any time before its pronouncement in open Court.
(c) Azad Jammu and Kashmir Civil Servants Act, 1976--
----S.4---Mode of appointment---Appointment to a civil post would be made in the prescribed manner by the Government, or by a person authorised by it in this behalf.
(d) Civil service--
---- Appointment to a civil service would be made in the prescribed manner by the Government, or by a person authorised by it in this behalf.
(e) Azad Jammu and Kashmir Civil Servants Act 1976--
----S.2---Word "prescribed" would mean prescribed by Rules.
(f) Words and phrases---
---- Word "prescribed" would mean prescribed by Rules.
(g) Azad Jammu and Kashmir Civil Servants Act, 1976--
----Preamble---Scheme of Azad Jammu and Kashmir Civil Servants Act, 1976 showed that promotion of a person to a post would be termed as an appointment by promotion.
(h) Civil service--
---- Promotion of a person to a post would be termed as an appointment by promotion.
(i) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977--
--R.3---Mode of appointment---Appointment to a post would he made by promotion, transfer or initial recruitment---Word "shall" as used in R.3(2), Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, signified that procedure laid down in the Rules would have to be followed for appointment by promotion.
(V) Words and phrases--
---- Word "shall" used with reference to procedure for appointment or promotion, would signify that procedure prescribed in relevant rules had to be followed for appointment by promotion.
(k) Civil service--
---- Appointment by promotion---Word "shall" as used in procedure prescribed in rules for appointment by promotion would signify that such procedure had to be followed for appointment by promotion.
(l) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977--
----R.2---Word "post"---Meaning---Word "post" would mean a "post" in connection with the affairs of the Government.
(m) Words and phrases---
......????? Post"---Word "post"---Meaning---Word "post" would mean a "post" in connection with the affairs of the Government.
(n) Civil service--
---- Post in civil service would mean a post in connection with the affairs of the Government.
(o) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977--
----Rr.l, 10 & 12---Promotion _ of civil servant would be dependent upon possession of necessary qualifications and other conditions prescribed for the purpose---Temporary relaxation in such qualifications was, however, permissible.
No person would be promoted etc. unless he possessed the qualifications and met the conditions laid down for that purpose. Rule 10 in fact prohibited the Selection Authority from even considering the case of such a person.
Rule 12, Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, gives a temporary relaxation that till the framing of the rules laying down the qualifications and other conditions postulated by rule 10, promotion of a civil servant could be ordered but only as a result of a test which would be specified by the appointing authority. The Rules of 1977 are in the nature of fundamental rules which were applicable to all civil servants as is clear from sub-rule (3) of rule 1 and whenever a post was to be filled by appointment by promotion, transfer or deputation or an ad hoc appointment had to be made these rules had been made applicable. These rules eliminate to a great extent arbitrary exercise of powers by the concerned authority in the matter of appointment and promotion of civil servants. The wording in which the Rules have been couched shows, in unmistakable words, that these rules were mandatory. Relevant post could not be legally filled up whether by promotion or otherwise unless there were rules conforming to the requirement of rule 10, Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977.
Per Sardar Said Muhammad Khan, C.J. and Basharat Ahmed Sheikh, J.--
(p) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977---
----Rr.10 & 12---Appointment by promotion---Eligibility---Locus standi--?Minutes of Selection Board indicated that respondent's case was to be considered by the Selection Board alongwith the case of appellant but it was not done because of the fact that Chief Executive ordered that vacancy to be filled up through promotion should be from the cadre to which appellant. belonged---Fact that respondent was otherwise eligible for promotion but was not considered would make him aggrieved person having locus standi to challenge the promotion of appellant and he successfully challenged the same before Service Tribunal---Respondent was thus, competent to raise grievance against the promotion of appellant.
Sardar Muhammad Ashraf Khan, J. (Contra)---
A civil servant would only be aggrieved by an order of the departmental authority whereby any of the terms and conditions of his service guaranteed by law or rules had been adversely and prejudicially affected.
When the case of the respondent was examined in the light of the above state of law there remained no manner of doubt that the respondent was not a person aggrieved by the impugned order of promotion of the appellant inasmuch as none of the terms and conditions of the service guaranteed to him under the Civil Servants Act or any rules made thereunder had been infringed or violated.
Sardar Said Muhammad Khan, C.J. and Basharat Ahmed Sheikh, J.---
(q) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977--
----Rr.10 & 12---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Eligibility for promotion---Both the respondent's and appellant's names were to be considered for promotion by the Selection Board---Chief Executive's directive resulted in non-consideration of respondent's name for promotion---Respondent being the senior most civil servant, was entitled to promotion---Service Tribunal's decision that appointment by promotion of appellant was invalid was upheld by the Supreme Court.
Syed Manzoor Hussain Gillani Advocate on 13th February, 1991 and Kh. Shahad Ahmad Advocate on 3rd November, 1991 for Appellant (in Civil Appeal No.35 of 1990).
Raja Muhammad Hanif Khan Advocate for Respondent No.l (in Civil Appeal No.35 of 1990).
Nemo for Respondents Nos. 2 and 3 (in Civil Appeal No.35 of 1990).
Sardar Muhammad Sadiq Khan, Additional Advocate-General on 13th Fabruary, 1991 and Kh. Shahad Ahmad Advocate on 3rd November, 1991 for Appellants (in Civil Appeal No36 of 1990).
Raja Muhammad Hanif Khan, Advocate for Respondent No.l (in Civil Appeal No.36 of 1990).
Syed .Manzoor Hussain Gillani, Advocate for Respondent No. 2 on 13th Febraury, 1991.
Kh. Shahad Ahmad, Advocate on 3rd November, 1991 for Respondent No.2 (in Civil Appeal No. 36 of 1990).
Dates of hearing: 13th February and 3rd November, 1991.