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Petitioner: MUHAMMAD ASHRAF KAYANI VS Respondent: REGISTRAR, AZAD JAMMU AND KASHMIR HIGH COURT
1986 P L C (C.S.) 525
[Service Tribunal Azad J & K]
Present: Muhammad Siddique Farooqi, Chairman and Kh. Abdus Sammad, Member
MUHAMMAD ASHRAF KAYANI Appellant
Versus
REGISTRAR, AZAD JAMMU AND KASHMIR HIGH COURT and 4 others Respondents
Appeal No. 167 of 1981, decided on 16th October, 1985.
(a) Azad Jammu and Kashmir Service Tribunal Act, 1975‑‑
‑‑‑S. 4‑‑Azad Jammu and Kashmir Service Regulations, Appendix 11, Vol. II, Art 24‑‑Azad Jammu and Kashmir Courts and Law Code, 1949, S. 30(2)‑‑Appeal before Tribunal‑‑Limitation would not run against order passed without jurisdiction‑‑Seniority of Civil Judges‑‑High Court authorised to determine seniority with approval of Government‑‑‑ Order determining seniority passed by High Court without approval of Government was beyond jurisdiction‑‑Such invalid original order could not even be confirmed in appeal by Government hence appellate order of Government also invalid‑‑Appeal, in circumstances, held, not hit by limitation.
Shamsheer Ali Khan v. Commandant B.M.P. 1984 P L C 759 and 1983 P L C 277 rel.
1985 P L C (C.S.) 480 and 1978 P L C (C.S.T.) 77 held not applicable.
(b) Azad Jammu and Kashmir Service Tribunal Act, 1975‑‑
‑‑‑S. 4‑‑Appeal before Tribunal‑‑Original impugned order lawful and subject to departmental appeal‑‑Appellate order not challenged Omission to challenge final order, held, not immaterial and relief could not be granted by Tribunal in absence of challenge against final order Original order without jurisdiction‑‑Objection as to absence of challenge against appellate order, in circumstances, repelled.
P L D 1978 Kar. 279; P L D 1962 Dacca 453; P L D 1962 Pesh. 124; P L D 1980 Lah. 62; 1983 P L C 345 distinguished.
(c) Azad Jammu and Kashmir Service Tribunal Act, 1975‑‑
‑‑‑S. 4‑‑Documents attached not certified copies‑‑Minor defect curable at any stage would not render appeal as incompetent‑‑Such minor things, held, cannot deprive appellant of his substantive right of appeal.
17 L D 1980 Lah. 626 rel.
(d) Azad Jammu and Kashmir Service Tribunal Act, 1975‑‑
‑‑‑S. 4‑‑Seniority dispute‑‑Seniority list yet tentative‑‑Order forming basis of position reflected in such list becoming final‑‑Appeal before Tribunal, in circumstances, held, competent.
(e) Azad Jammu and Kashmir Service Tribunal Act, 1975
‑‑‑S. 4(1)(a) & (b)‑‑Seniority dispute‑‑Promotion of respondent ordered by competent authority on merits and not merely on seniority basis‑ Promotion order, in circumstances, held, could not be challenged in appeal before Tribunal.
(f) Civil service‑‑
‑‑‑ Ad hoc appointment‑‑Confirmation subsequently with retrospective effect with approval of selection Authority‑‑Suffers from no legal defect‑‑Azad Jammu and Kashmir Regulations, Appendix 11, Vol. V, Arts. 14 and 15.
P L J 1974 T. C. 239; 1974 P L D 19; 1972 P L C 170; 1984 PLC 276; P L D 1982 S C 104; 1980 P L C (C.S.) 86; P L J 1978 T. C. 60,
294; 1983 P L C 673; P L D 1978 S C 37 and 1985 P L C 618 ref.
1971 P L C (C.S.) 140,47,220; 1970 P L C 72; P L D 1978 (S.C.) 37; 1971 P L C 47, 1971 P L C 220 and 1971 P L C 72 rel.
(g) Civil service‑‑
‑‑‑Cadre‑‑Transfer‑‑Factum of transfer from one post to another‑‑Does not serve as a guide for determination as to whether two posts borne on common cadre for purpose of seniority‑‑Seniority dispute in cadre of civil Judges‑‑Service as Registrar, High Court sought to be countable‑‑Requisitions and selections by Public Service Commission for post of Registrar distinct and separate‑‑Both posts, in circumstances, held, not borne on common 'cadre and mere fact that Registrar was transferred as Civil Judge will not entitle him to count period of service as Registrar towards seniority as Civil Judge‑‑Azad Jammu and Kashmir Service Regulations, Appendix II, Vol. II, Art. 1(1), Azad Jammu and Kashmir Civil Servants Act, 1976, S. 9.
(h) Azad Jammu and Kashmir Public Service Commission Ordinance, 1978‑‑
‑‑‑R. 7(2)‑‑Azad Jammu and Kashmir Public Service Commission (Functions) Rules, rr. 3 & 6‑‑Transfer of regular appointee to equivalent post‑‑Approval of Commission not needed‑‑Law Drafting Officer holding regularly post in B.S. 17 transferred as Civil Judge in same scale‑‑Plea that he could not be treated as regular Civil Judge in absence of approval of Commission‑‑Repelled,
(i) Civil service‑‑
‑‑‑ Seniority‑‑Whether counts from date of appointment i.e. date of order of appointment or from date of assumption of duty‑‑Term "first appointment" used in Art. 24, Kashmir Service Regulations interpreted to mean when appointment made not when appointment acted upon‑‑Law Drafting Officer transferred and appointed as Civil Judge but not relieved immediately to join as Civil Judge‑‑Delay in joining not attributable to him‑‑Held: could not be deprived of his right of seniority from date of appointment order‑‑Azad Jammu and Kashmir Service Regulations, Appendix II, Vol. II and Art. 24.
P L J 1978 T D 275 held not applicable.
1977 S C M R 365 and 1975 P L C 81 distinguished.
Raja Muhammad Hanif for Appellant.
Sardar Rafique Mahmood, A.‑G. assisted by Khawaja Saeed Ahmad for Respondent No. 3.
JUDGMENT
MUHAMMAD SIDDIQUE FAROOQI (CHAIRMAN).‑‑This appeal arises out of an order of High Court, dated 10‑4‑1979, which was conveyed, vide letter of Registrar High Court No. 2681 / H. C. / 79, dated 12‑4‑1981, whereby the appellant was informed that his seniority in the cadre of Sub‑Judge would be determined under the provision of Kashmir Service Regulations from the date of his joining the service as Sub‑Judge on 11‑12‑1973 and that his plea for fixation of seniority as Sub‑Judge from the date of joining service of Azad Kashmir Government on 8‑3‑1972 being devoid of force was rejected by the learned Judges of the High Court in their meeting, dated 10‑4‑1979. Aggrieved by this order, the appellant preferred an appeal to the Government, which was rejected on 2‑6‑1981 and thereafter the present appeal was brought in this Court on 25‑6‑1981.
2. The appellant has stated in the memo of appeal that he joined the services of Azad Kashmir as Law Drafting Officer on 8‑3‑1972 and was subsequently transferred as Sub‑Judge in the Judicial Department on 19‑8‑1973, but he was not relieved from the duties of Law Drafting Officer, ultimately having been relieved from such duties on 10‑12‑1973, he joined the Judicial Department on 11‑12‑1973. It was stated that the respondents Nos. 3 and 4 were appointed as Sub‑Judge on ad hoc basis on 9‑9‑1973. These respondents, namely; Khawaja Iftikhar Hussain Butt and Raja Niaz Ahmad assumed the duty as Sub‑Judge on 10‑9‑1973, whereas respondent No. 5, who was appointed as Registrar on 9‑9‑1973, resumed the duty as such on 15‑9‑1973 and subsequently Mirza Zaidullah respondent was also posted as Sub‑Judge‑on 3‑8‑1974. Vide order of High Court, dated 17‑2‑1979, the respondent No. 3 was placed in N.P.S. 18 w.e.f. 30‑10‑1979. (The date given in memo. of appeals, is incorrect. It is actually 30‑10‑1978.) The appellant stated that he submitted two representations, one on 5‑11‑1978 and another on 15‑3‑1979 to the Registrar, High Court, requesting that the appellant may be placed at the top of the seniority list and may be placed in N.P.S. 18, in place of respondent No. 3, but his representations were turned down as conveyed by Deputy Registrar, vide his letter No. 2681/HC/79, dated 12‑4‑1979 and his appeal was also rejected, by the Government on 2‑6‑1983, therefore, he has now moved this Tribunal.
3. The grounds of appeal are as under:‑
(i) That the appellant could not be deprived of his service, rendered as Law Drafting Officer.
(ii) Respondents Nos. 3 and 4 were appointed as ad hoc Judges, therefore, their service up to the date of confirmation could not be counted, towards seniority. They were not entitled to compete the appellant, in matter of seniority, as he was a permanent Sub‑Judge, during the period they held the office of Sub‑Judge on ad hoc basis.
(iii) That respondent No. 5, Mirza Zaidullah was initially appointed as Registrar, High Court and not as Sub‑Judge, therefore, his service prior to 3‑8‑1974 could not be treated the service as Sub‑Judge.
(iv) That period from the date of his appointment as Sub‑Judge in the judiciary i.e., 19‑8‑1973 to date of his relied i. e., 10‑12‑1973 was in fact joining time and this period could be counted towards the seniority.
(v) The learned judges have fell in error in determination of the matter in controversy, therefore, setting aside the order, dated 12‑4‑1979, his seniority may be determined and NPS may be granted to him retrospectively from 30‑10‑1978.
4. The respondents in their written statement took more or less identical pleas in their defence, which are as under:‑
(i) The appeal is time‑barred.
(ii) The appellant has not challenged the Government Order No. Admin. 10746‑54/81, dated 2‑6‑1981, whereby his appeal was dismissed, therefore, the appeal is not competent.
(iii) The appellant was not senior to the respondents Nos. 3 to 5 as the seniority was to be determined from the date of joining the judicial service in light of section 30(2) of the Courts and Laws Code, 1949 and Art. 247/K. S. R., Vol. II. Appendix II.
(iv) The appointment of Mirza Zaidullah as Registrar was to be taken as Sub‑3ydge because the post of Registrar and the Sub‑Judge were inter-transferable.
(v) The Public Service Commission approved the appointments of respondents Nos. 3 to 5, therefore, they were confirmed from the date of their first appointment.
(vi) The period of joining the post could not be considered as period of service as Sub‑Judge, for the purpose of seniority.
(vii) That the appellant was not approved by the Public Service Commission for the post of Sub‑Judge and his appointment as Sub‑Judge being probationary was not confirmed, through any order of the Government, while the respondents were confirmed w.e.f. 9‑9‑1973.
5. Arguments were also addressed by the counsel for the parties and the following points have been pressed by the counsel for the appellant:‑
(i) The appellant is entitled to seniority from the date of his first appointment i.e., 22‑8‑1973, which was incorrectly recorded as 19‑8‑1973 in the memo of appeal.
(ii) The order of the High Court, dated 12‑4‑1979 was without jurisdiction.
(iii) The appointment of the respondents Nos. 3 to 5 was made on ad hoc basis, which was later on confirmed on 8‑6‑1974, therefore, their service for the purpose of seniority shall be reckoned from 8‑6‑1974 as the recommendations of Public Service Commission were prospective and could not have been retrospective and in view of Art. 17, K.S.R., Vol. II and Appendix II. The retrospective confirmation of service was illegal.
(iv) Mirza Zaidullah, respondent was appointed as Registrar, High Court, therefore his service prior to 3‑8‑1974, the date of his appointment as Sub‑Judge could not be treated the service as Sub‑Judge, thus this service could not be counted for determination of seniority.
(v) Raja Niaz Ahmad had left the Judicial Department permanently, when he was transferred as A.D.C. He had no lien in judiciary after this appointment, in the Revenue Department, therefore, on his re‑joining this department, his service in the department will start for the purpose of seniority from the date of his re‑appointment in the department.
6. The respondents have pressed the following points in defence:‑
(i) The period of service of the appellant prior to the date of joining i.e., 11‑12‑1973 could not be considered towards the seniority.
(ii) The appellant has never been approved for the appointment for the post of Sub‑Judge, therefore, he has no right for service/ seniority in the cadre of Sub‑Judge.
(iii) The appeal is time‑barred.
(iv) The appeal is not competent for the following reasons:
(a) There is no appeal against the orders, dated 1y‑10‑1978 and 17‑2‑1979.
(b) The final order, dated 2‑6‑1981 is not challenged.
(c) The documents attached, are not certified copies.
(d) The appeal is not verified.
(e) The appeal is not maintainable because no seniority list was finalized. The tentative seniority list is not appealable.
7. First of all, we proceed to determine the question of jurisdiction in respect of order, dated 10‑4‑1979, conveyed by the Deputy Registrar, High Court, vide his No. 2681/ H. C. /79, dated 12‑4‑1979. In matter of seniority of Civil Servants, the relevant Article in K.S.R. is 24, Appendix II, Vol. II, which reads as follows:‑
"24. (a)
Seniority‑‑The seniority of a person who is subject to these rules has reference to the service, class, category or
Seniority.
grade with reference to which the question has arisen. Such seniority shall be determined by the date of his first appointment to such service, clause, category or grade, as the case may be.
Note 1.‑
The rule in this clause will not affect the seniority on the date on which these rules come into force of a member of any service, class, category or grade as fixed in accordance with the rules and orders in force before the date on which these rules come into force.
Note 2.‑
Unless otherwise provided in any particular case, the seniority in a Department of the establishment classed in the Kashmir Ministerial Service will be regulated as follows:‑
(i) 20‑I‑35 grade‑‑One seniority list will be maintained for, this class of establishment for each province or circle as the case may be, promotions to the grade of 25‑2‑55 being made from this list within such province or circle only.
(ii) 25‑2‑55 grade and above‑‑The list of these classes of establishment will be combined for the department and will be maintained by the authority competent to make appointment to the posts carrying a pay above Rs.55 p.m.
Explanation.‑‑In the Forest Department the seniority of the Direction Office will, however, remain separate from the establishment of circle offices.
(b) Whereas the date by which seniority is determined under sub‑rule (a) is the same in the case of two or more members of a service, class, category or grade, their seniority inter se shall be determined by the order of preference laid down by the appointing authority in their case. If no such order of preference is laid down, or in case of doubt, seniority shall be determined by the appointing authority.
(c) A member of a service, class, category or grade unless he is reduced in seniority as a punishment shall retain seniority in such service or grade as determined by sub‑rules (a) and (b) notwithstanding any delay in the completion of his probation or his appointment as a member of such service, class, category or grade.
(d) Where a member of any service, class, category or grade is reduced to a lower service, class, category of grade, he shall be placed at the top of the latter, unless the authority ordering such reduction directs that he shall rank in such lower service, class, category or grade, next below any specified member thereof."
Since the officers contesting their seniority in this case are judicial officers, therefore, other provision relevant for the determination of their seniority as embodied in section 30(2) of Azad Kashmir Courts and Laws Code, 1949 is also reproduced below:‑
"30(2) The High Court shall with the approval of the Government determine the seniority of the judicial officers keeping in view their qualifications, efficiency, past experience, honesty and duration of service under the Government. In doing so the High Court shall fix the salary of each officer within the grade of the class he is placed in."
Ordinarily the seniority of the Government Servants is determined by the appointing authority under the provision of K.S.R. which was applicable at the time of appointment of the officers, involved in this case but some powers have been also delegated to the High Court under section 30(2) reproduced in the earlier part of this judgment. These powers are to be exercised with the approval of the Government, which nevertheless means that the final authority in the matter of these judicial officers, was the Government, therefore, any final order in the case of dispute between the parties could be passed by the Government and not by the High Court. The High Court could prepare the list and had to obtain the approval of the Government. In the case of any dispute or representation, by any person, whose name appeared in the seniority list or who ought to have been brought in the list, the High Court could submit the case to the Government, with its views and only the decision of such authority could be followed as was competent to determine the seniority, but High Court followed its own decision, dated 10‑4‑1979 and consequently promotions were also made. In this view of the matter, the order, dated 10‑4‑1979, conveyed, vide No. 2681/H.C., dated 12‑4‑1984 was without jurisdiction.
8. The question of jurisdiction in this case, will determine the other two questions raised by the counsel for the defence, namely, limitation and the maintainability of the appeal in absence of specific challenge to the order, dated 2‑6‑1981.
9. The counsel for the appellant has submitted that against order, dated 12‑4‑1979, the appeal was preferred in a bona fide belief before the Government, for setting aside the same. This could be treated as a representation to the competent authority. This appeal was decided in the form of appeal on 2‑6‑1981, therefore, period upto 2‑6‑1981 remains suspended. The appellant had a right of filing appeal against the original order in the case of its confirmation by the Appellate Authority upto 30 days of passing of an order in the appeal, thus according to him appeal could be filed upto 2‑7‑1981. Hence the appeal having been filed on 25‑6‑1981 is within time. Alternatively, it was argued that order, dated 12‑4‑1981 which had become final after rejection of appeal was without jurisdiction and that no limitation runs in matter of such an order. For that he had cited 1984 P L C 759.
10. The Advocate‑General, counsel for the respondents maintained that when a period of appeal is provided in any statute, the appeal must be brought within that period. The question of jurisdiction can be determined, only when the appeal is preferred before the appellate Authority, within the prescribed period. But he has not been able to support his contention by any case‑law, therefore, we uphold that the plea of the counsel for the appellant that the appeal is not time‑barred for the reason that the order, dated 12‑4‑1979 was not within the jurisdiction of the authority, passing the order. We are supported in our view by 1983 P L C 277 in which it has been held at page 284 as under:‑
"I agree with the judgment so relied upon by the learned counsel of the appellant and keeping in view this decision, I hold that the appeal is maintainable. Moreover I have mentioned above that the impugned orders passed by the respondents are unlawful and void, hence no limitation runs against such orders,"
In the case Shamsheer Ali Khan v. Commandant, B.M.P. 1984 PLC 759 the same view has been expressed. It has been held at page 761 as under:‑
"10. In view of the above procedural flaw which is against fundamental principle of natural justice, we are of the considered opinion that all the proceedings after the said report of Malik Muhammad Afzal, Political Naib‑Tehsildar, who was appointed as Enquiry Officer, in this case, stand vitiated.
11. With regard to the point of limitation we are of the confirmed view that once an order is void being against the principle of natural justice, the point of limitation would not be relevant in such case, as no limitation runs against void order".
The cases cited by Khawaja Muhammad Saeed learned Advocate for the respondent viz. 1985 P L C (C.S.) 480, 1978 P L C (C.S.T.) 77 and 1979 P L C (C.S. T.) 6, are inapplicable. The case cited as PLD 1978 S C 348 could not be found out as there were 322 pages of that Book only. Thus the appeal is not time‑barred.
11. The third point is the maintainability of the appeal. The counsel for the respondent had raised the preliminary objection that the appeal was not competent for the reason that order, dated 2‑6‑1981 which was in fact the final order in this case has not been challenged. As against this argument, the counsel for the appellant maintained that there was no new determination of any fact by the Government on 2‑6‑1981. By this order, Government only dismissed the appeal of the appellant, whereby the order, dated 12‑4‑1979 had become final. The remedy of appeal had to be availed of under the provision of section 4, and even if this order had not been passed, the appeal is provided against the original order under the provision of section 4, of the Service Tribunal Act, when both the orders namely; the original as well as the appellate order can be challenged before the Tribunal, the absence of specific challenge of the appellate order will not make an appeal incompetent. The counsel for the appellant also submitted that it has been clearly mentioned in the memo of appeal that appeal was dismissed on 2‑6‑1981 and copy of the order was also placed on record. Therefore, it should be presumed that order, dated 2‑6‑1981 was challenged because no more grounds other than those already incorporated in the memo of appeal in respect of order, dated 12‑4‑1979 were required to be added to impeach the order, dated 2‑6‑1981 and the omission in the prayer clause or elsewhere for setting aside the order, dated 2‑6‑1981 in circumstances of this case is immaterial and is attributable to the bad drafting and not the intention of the appellant because relief in respect of this order would be the same which can be granted in respect of order, dated 12‑4‑1979.
12. It has been also argued that when the original order is without jurisdiction, the appellate order does not stand on a better footing than original order, therefore, such an order also has the position of an order without jurisdiction and it can be set aside even without a specific challenge when the contention of the appellant is very clear. The plea of the counsel for the appellant is that the appellant has clearly mentioned the date of order and also placed the copy of the order in question, which shows that he had no intention to give up his attack towards order, dated 2‑6‑1981. Ordinarily, we do not agree that omission to challenge a final order was immaterial as in our view in case of a lawful order, without challenging the final order, relief could not be granted. The authorities quoted by the counsel for the appellant, namely; P L D 1978 Kar. 279, P L D 1962 Dacca 453, P L D 1962 Pesh. 124 and P L D 1980 Lah. 62, are not applicable. Another case 1983 PLC 345, quoted by the counsel for the appellant to show that cause of action accrued to the appellant at two stages is also not such helpful in the case of a time‑barred appeal, or in the case where the final order is not challenged, but the circumstances of this case are quite different, because the order initially passed was without jurisdiction.
13. In case the original order is without jurisdiction, the appellate authority cannot confirm the same unless such authority itself assumes the jurisdiction on its original for determining the issue in question. The order, dated 2‑6‑1981 is couched in the following words:‑
The order in question shows that it has been passed on the appellate side, by the Government. Had it been passed on the original side for determination of the seniority, it would have been a valid order and a Review would have been also competent but the way in which it has been passed on the appellate side, the proceeding before the Government are also vitiated and it has also deprived the appellant of a remedy of Review, before the Government. The order on appellate side, confirming the order of a subordinate authority could only be passed if the subordinate authority had acted with jurisdiction. An invalid order can be set aside in appeal but the appellate authority has no power to confirm an invalid proceeding or order. Such order cannot be lawful. For instance in a case which ought to have been tried by a District Judge on original side, is tried by the Sub‑Judge and the decision of Sub‑Judge, is confirmed in appeal by the District Judge without trying it on original side, such decision will not be lawful and it will be treated as without jurisdiction, as it will carry with it the disqualification of lack of jurisdiction. On being challenged before the High Court, the decision of Sub‑Judge as well as that of the District Judge in appeal, will be liable to be quashed.
14. The second ground of attack with regard to the competence of appeal was that the appeal is not verified as required under C . P. C . and further that the documents attached with the file were not the) certified copies. These were the technical things and such minor things cannot deprive the appellant of his…
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