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Petitioner: GULZAMAN AWAN VS Respondent: MUHAMMAD HAYYAT KHANHonorable Justice KHAWAJA MUHAMMAD SAEEDAbdul Rashid Abbasi,M. Tabassum Aftab Alvi
2005 P L C (C
2005 P L C (C.S.) 1138
[Supreme Court (AJ&K)]
Before: Khawaja Muhammad Saeed and Chaudhry Muhammad Taj, JJ
Civil Appeal No.22 of 2002
GULZAMAN AWAN
versus
MUHAMMAD HAYYAT KHAN and 5 others
(On appeal from the judgment of the Service Tribunal dated 14-12-2001 in Service Appeals No.217 and 343 of 1999, and 364 of 2000).
Civil Appeal No.50 of 2002
GHULAM HUSSAIN GANNAI
versus
MUHAMMAD HAYYAT KHAN and 5 others
(On appeal from the judgment of the Service Tribunal dated 14-12-2001 in Service Appeals Nos.217 and 343 of 1999 and 364 of 2000).
Civil Appeals Nos.22 and 50 of 2002, decided on 18th June, 2004.
(a) Azad Jammu and Kashmir Civil Servants Act (VI of 1976)---
----Ss.8, 8-A---Promotion---Selection for further promotion in case of a Selection post, was to be made on merits and not on the basis of seniority, whereas in case of non-Selection post; promotion was to be made on basis of seniority-cum-fitness---Promotion to the next higher grade could not be claimed as of right---Whether promotion should be given to a particular civil servant or same should be refused to him appeared to be within exclusive discretionary domain of concerned competent Authority---Person possessing such minimum qualification as was prescribed for a particular post, having unblemished service record and fulfilling other requirements as laid down for next higher post, could claim right for consideration for his promotion which definitely was not equal to right of promotion---Words "Selection on merit or on the basis of seniority-cum-fitness" used in S.8(2)(a)(b) of Azad Jammu and Kashmir Civil Servants Act, 1976, had shown that competent Authority had to consider while assessing merits, experience gained, rectitude and antecedent service record of civil servants---If those were equal in the wisdom of competent Authority, then person having better qualification could claim edge over contesting candidates.
Nazar Ahmed Khan v. Syed Sabir Hussain Naqvi and 3 others 2001 PLC (C.S.) 303; Muhammad Ilyas Khan and 6 others v. Sardar Muhammad Hafeez Khan and 3 others 2001 PLC (C. S.) 445; Muhammad Ilyas Khan and 5 others v. Sardar Muhammad Hafiz Khan and 4 others 2002 PLC (C.S.) 1282; Ch. Ajaib Hussain and another v. Mst. Zareen Akhtar and 11 others 1999 YLR 1426; Qurban Hussain v. Mst. Bashir Begum and 6 others PLD 1986 SC (AJ&K) 109; Muhammad Lal v. Mohko and 2 others PLD 1979 SC (AJ&K) 15; Qazi Faizal Haq v. Govt. of N.-W.F.P. through Chief Secretary Peshawar 1987 SCMR 110; Tasneem Yaseen v. Azad Govt. and 11 others 2004 PLC (C.S) 850; Sardar Muhammad v. The Chief Administrator, Auqaf 1989 PLC (C.S.) 262; Raja Muhammad Sohrab v. AJ&K Government and 6 others 2002 PLC (C.S.) 1138; Inhabitants of Singola through Muhammad Hanif and another v. Azad Government and 22 others 2001 YLR 3190; Mst. Farooq Bibi v. Abdul Khalid and 26 others 1999 CLC 1358 and Sh. Ghulam Ahmed v. Government of Azad Jammu and Kashmir PLD 1968 AJK 64 ref.
(b) Azad Jammu and Kashmir Civil Servants Act (VI of 1976)---
----Ss.8, 8-A---Promotion---Sole Judge to determine suitability for promotion to a particular post was the Competent Authority of department and such principle could be interfered with only in a case of proved mala fide i.e. that antecedent service record of parties was ignored and any law on the subject was infringed---Mere academic qualification had not been recognized as sole criteria for determining comparative merits---Competent Authority was required to look into experience, seniority, competence, past service record in addition to rectitude of parties.
(c) Azad Jammu and Kashmir Civil Servants Act (VI of 1976)---
----Ss.8, 8-A---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.47--Promotion---Appeal before Supreme Court---Appellants were promoted as Accountants B-11 ahead of respondent and order of promotion of appellants was never challenged by respondent---Later on a selection grade post was upgraded to B-15 and both appellants were automatically upgraded to B-15---Appellants subsequently were promoted as Superintendent B-16 with retrospective effect and as selection grade Superintendents B-17---Series of said beneficial orders in favour of appellants were never questioned by respondent either before Departmental Authority or before any other forum or Court established by law to resolve disputes between civil servants---Respondent, no doubt was senior to appellants up to B-10, but onwards, appellants were promoted in better grades earlier than the respondent---If a person senior in grade was superseded through promotion by a junior and later on he was also promoted to that grade, junior who was promoted first, would rank senior to that person who even though was senior in lower grade, but was promoted subsequently---Appellants on account of their promotion in B-11 earlier than respondent, which order was. never challenged by him, had become senior to respondent thereafter and were rightly promoted by Departmental Authorities ahead of respondent---Appeals filed by respondent before Service Tribunal were without merits.
Muhammad Ilyas Khan and 5 others v. Sardar Muhammad Hafiz Khan and 4 others 2002 PLC (C.S.) 1282 and Ejaz Ahmed Awan and 5 others v. Syed Manzoor Ali Shah and another 1999 PLC (C.S.) 1439 ref.
(d) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)---
----S.4---Appeal before Service Tribunal---Maintainability---Availing departmental remedy before invoking appellate jurisdiction of Service Tribunal was a pre-requite---Appeals filed without availing Departmental remedy, were not maintainable.
Abdul Rashid Abbasi, Advocate for Appellant (in Civil Appeal No.22 of 2002).
M. Tabassum Aftab Alvi, Advocate for Respondent No.1. (in Civil Appeal No.22 of 2002).
Riaz Naveed Butt, Addl. A.-G. for Respondents Nos. 2 to 5 (in Civil Appeal No.22 of 2002).
Sardar Muhammad Habib Zia, Advocate for Appellant (in Civil Appeal No.50 of 2002).
M. Tabassum Aftab Alvi, Advocate for Respondent No. 1 (in Civil Appeal No.50 of 2002).
Raja Ibrar Hussain, Advocate-General for Respondent Nos.2 to 5 (in Civil Appeal No.50 of 2002).
Dates of hearing 6th and 7th April, 2004.
JUDMGENT
KHAWAJA MUHAMMAD SAEED, J---Supra titled appeals, with leave of the Court, are directed against the judgment of the Service Tribunal dated 14-12-2001. As the identical questions of law and facts are involved in both, of them, therefore, these are disposed of through this common judgment.
2. The facts giving rise to the present appeals, briefly stated, are that both the appellants were inducted as Junior Clerks in B-5 in the Education Department of Azad Jammu and Kashmir after the induction of private respondent as Junior Clerk B-5 in the same department. They were promoted as Senior. Clerks in B-6 and Head Clerks in B-10 after the promotion of private respondent in B-6 and B-10. In the year 1983, two separate Directorates of Schools and Colleges were established in the Education Department by the Government. The private respondent was posted in the Directorate of Colleges, whereas the appellants were adjusted through posting orders in the Directorate of Schools. A tentative seniority list was prepared of low grade employees of the Education Department serving in college cadre in which the private respondent was shown at serial No.14, posted in Girls College Bagh. In the same way a tentative seniority list for ministerial staff of Education Department serving in school cadre was also drawn in which both the appellant were entered. Gul Zaman Awan, appellant, was entered at serial No.6, whereas Ghulam Hussain Gannai, the other appellant, at serial No.7. All the concerned employees were directed to file their objections, if any, about the correctness of any entry upto 25-7-1985. No person filed any objection about these seniority lists which shows that the parties were satisfied about the entries of both the tentative seniority lists circulated by the Education Department. Therefore, the private respondent was senior to the appellants up to Head Clerk, B-10. On 25-1-1986 the appellants were promoted as Accountant, B-11. Their promotion order was never challenged by the private respondent, therefore, on account of this reason the private respondent was declared junior to the appellants by the departmental authority. The appellants were given Selection Grade B-14 on 25-5-1986. Subsequently the same post was upgraded to B-15 w.e.f. 1-7-1987. Resultantly both the appellants, as holders of the posts, were automatically. upgraded to B-15 w.e.f. 1-7-1987. Thereafter the appellants were promoted as Superintendents B-16 with retrospective effect from 8-4-1992 and as selection grade Superintendents B-17 w.e.f. 1-10-1995. The series of these beneficiary orders in favour of appellants were neither challenged by the private respondent before the departmental authority nor before any forum established by law. Gul Zaman Awan, Appellant, herein, in Civil Appeal 22 of 2002, was lastly promoted as Assistant Director B-17 w.e.f. 25-7-1999 vide notification dated 21-6-2000.
3. Another seniority list of ministerial staff of the Education Department serving in schools and colleges both was circulated in which appellant, Gul Zaman Awan, was shown at serial No.4 and the other appellant at serial No.5, whereas the private respondent was entered at serial No.7. On the basis of promotion of the appellants in B-11 they were placed ahead of private respondent in the seniority. However while circulating this seniority list all the employees were directed to submit their objections, if any, within a period of one month. It was made clear that beyond this period no objection shall be entertained. It was further entered in the closing note of the seniority list that the entries made in this seniority list have been taken from past seniority lists.
4. It is not the case of the private respondent that he challenged the legalities of these entries either before any departmental authority or before any Court established by law. However there is a notification at' page 101 of the paper book which shows that both the appellants filed appeals before the Secretary Education challenging the seniority of Shah Zaman Abbasi, Ghulam Hussain Shah and Nazir Ahmed Mir, who at the relevant time were posted as Head Clerks in various officers of the Education Department. Their appeals were allowed on the ground that they were promoted in B-11 earlier than those persons and also on the ground that they had refused to serve outside the municipal limits of Muzaffarabad city against the post of Accountant B-11. On the basis of result of their appeals, the appellants were entered in the seniority list of ministerial staff of the Education Department ahead of these persons. However no final seniority list was ever prepared by the Education Department.
5. The contesting respondent who was promoted as Head Clerk in B-10 on 21-5-1978 on account of revision of pay scales of the post of Head Clerks got up-gradation of his post from B-10 to B-11 vide notification dated 25-7-1987. He was subsequently awarded Selection Grade B-15 on 14-1-1987 w.e.f. 1-7-1987 and promoted as Superintendent B-16 w.e.f. 25-10-1995, as compared to the appellants who were promoted as Superintendents B-16 w.e.f. 8-4-1992. On 6-7-1999 the private respondent filed first appeal before the Service Tribunal challenging the order dated 12-2-1995, regarding the promotion of the appellants as Superintendents B-16 w.e.f. 8-4-1992. His appeal was entered at serial No.217. He filed second appeal No.343 of 1999 on 30-9-1999, before the Service Tribunal whereby he challenged the notification dated 1-7-1999, regarding the promotion of the appellant, Gul Zaman Awan, as Assistant Director Schools in B-17 on current charge basis. On 18-8-2000 he filed third appeal No.364 of 2000, challenging the notification dated 21-6-2000 regarding the regular promotion of Gul Zaman Awan, as Assistant Director Schools in B-17 w.e.f. 27-7-1999. As the parties to the litigation were the same and dispute listed in the appeals was in respect of promotion and seniority, therefore, the Service Tribunal felt it appropriate to consolidate all the three appeals for joint proceedings. After necessary proceedings as required by law through common judgment dated 14-12-2001, the Service Tribunal accepted all the three appeals of private respondent. The order of promotion of the appellants as Superintendents B-16 dated 12-2-1995 was amended, instead of the appellants the private respondent was promoted from the aforesaid date as Superintendent B-16. The date of promotion of the appellants thus as Superintendent B-16, was changed from 8-10-1992 to 25-10-1995. The order dated 1-7-1999, regarding the promotion of Gul Zaman Awan as Assistant Director Schools B-17 on current charge basis and his permanent promotion as such in B-17 on regular basis, was set aside by holding the private respondent as senior to him. The order of promotion of other appellant as Superintendent B-16 was also amended. He was held entitled to promotion as Superintendent B-16 from 25-10-1995 instead of 8-4-1992 and the private respondent was held entitled to promotion as Superintendent B-16 from 8-4-1992 instead of 25-10-1995. The official respondents Nos.2 to 5 were directed to include the name of private respondent in the panel meant for the consideration of Departmental Selection Board for further promotion. This judgment of the Service Tribunal has been assailed before this Court by the appellants through the present appeals on various grounds.
6. Mr. Abdul Rashid Abbasi, the learned counsel for the appellant, Gul Zaman Awan, argued that his client in his written statement had never admitted the seniority of the private respondent beyond B-10, therefore, the judgment of the Service Tribunal is based on misreading and non-reading of record, as such, is not maintainable. According to him in the written statements of his clients, copies of which have been placed at pages 49 to 59 of the paper book, the relevant contents contained in paras. 1 and 4 of the appeal have been denied. If the private respondent in the tentative seniority list was wrongly placed below the appellants, he should have challenged the correctness of the same firstly before the departmental authority and then before the Service Tribunal which at the relevant time was the requirement of section 4 of the Service Tribunals Act, 1975. The reliance was placed upon cases titled Nazar Ahmed Khan v. Syed Sabir Hussain Naqvi and 3 others 2001 PLC (C.S.) 303 and Muhammad Ilyas Khan and 6 others v. Sardar Muhammad Hafeez Khan and 3 others 2001 PLC (C.S.) 445, wherein it is laid down that the seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to a post in that grade. He also relied upon a case titled Muhammad Ilyas Khan and 5 others v. Sardar Muhammad Hafiz Khan and 4 others 2002 PLC (C.S.) 1282, wherein the retrospective promotion was not challenged by the appellant within the period of limitation and it was laid down that even a void order adversely affecting the interest of a person should be challenged. within a reasonable time. In this case the relevant petition was dismissed on account of indolent and negligent attitude of the petitioner who had not challenged the retrospective promotion of the respondent within time.
7. It was further argued by the learned counsel for the appellant that private respondent in the seniority list was placed at serial No.7 ahead of his client and one Ghulam Hussain Shah was entitled in the same seniority list at serial No.6. The seniority of Ghulam Hussain Shah was challenged by the appellants and their appeals were allowed and appellants were ordered to be entered ahead of Ghulam Hussain Shah in the seniority list, Ghulam Hussain Shah moved an application before the Service Tribunal in appeal No.217 of 1999 filed by the private respondent for being impleaded as a party. The private respondent before the Service Tribunal admitted Ghulam Hussain Shah senior to him. On account of this reason Ghulam Hussain Shah did not press his application before the Service Tribunal for impleading him in the line of respondents to defend his case of seniority against the private respondent. He further argued that the private respondent after admitting Ghulam Hussain Shah senior to him is not justified in law to claim seniority against the appellants who are already entered ahead of Ghulam Hussain Shah in the same seniority list. According to him, even if the seniority list was void then too there was no justification for the private respondent to sleep over the matter for an indefinite time. According to the learned counsel when this tentative seniority list was circulated among the members of the ministerial staff of Education Department the private respondent should have filed his objections within the period fixed in the foot note of the same list or challenged the result of the appeals decided by the Secretary Education in favour of appellants, against Ghulam Hussain Shah and others who were declared ahead of private respondent in the seniority list but no departmental remedy or appeal before the Service Tribunal was filed by him within the prescribed period of limitation, therefore, the entry of the appellants ahead of the private respondent had attained 'finality which was wrongly ignored by the Service Tribunal while drafting judgment under challenge in the present cases. The indolent attitude of the private respondent was altogether ignored while allowing remedy in his appeal by violating the service laws applicable in the Azad Jammu and Kashmir. In this regard he strenuously argued that despite this fact that question of limitation was specifically raised in the written statements and was pressed in the written arguments but the same was not resolved by the Service Tribunal. The lethargic attitude of the Service Tribunal in this regard cannot be appreciated. According to him in para. 6 of the written statement it was specifically pleaded by the appellants that the private respondent was in know of the promotion of the appellants but he never challenged the same. In support of this assertion an' affidavit was also filed by the appellants but neither any counter-affidavit was filed, by the private respondent nor the assertions of the appellants in the aforementioned para. of written statement was specifically denied by him in his replication.
8. Mr. Abdul Rashid Abbasi, the learned counsel for Gul Zaman Awan, further argued that appeals Nos.217/99 and, 343/99 filed by the private respondent before the Service Tribunal on 6-7-1999 and 30-9-1999 were liable to be dismissed on the ground that before invoking the appellate jurisdiction of the Service Tribunal the private respondent had not availed the departmental remedy as was required by law applicable at the relevant time. He referred his written statement in which this objection was specifically raised by the appellants but the same was not attended to by the Service Tribunal while drafting the judgment under challenge. He also brought to our notice the written arguments which were submitted on behalf of the appellants, by their learned counsel in which this objection was once again pressed. The failure on the part of Service Tribunal to resolve such important legal objection without assigning any reason renders two consolidated judgments as invalid and liable to be set aside. He admitted that private respondent was senior to the appellants upto B-10. However, according to him, the appellants were promoted in B-11 w. e. f. 25-1-1986 as compared to the private respondent who availed this pay scale on 25-5-1986, when post of Head Clerk was upgraded from B-10 to B-11 vide notification dated 25-7-1987. According to him, the private respondent either did not challenge the promotion of the appellants in B-11 before the departmental authority or before the Service Tribunal. Thus by his conduct he waived his seniority. The appellants were also granted selection grade B-14 which order he never challenged before the departmental authority or before the Service Tribunal, therefore, the appellants who were given better grade were rightly promoted as Superintendents B-16 ahead of private respondent. He further argued that the promotion of appellant Gul Zaman Awan on current charge basis against a post in B-17 and then his regular promotion in B-17 against the same post was in accordance with the service laws applicable in this part of the State. Lastly it was argued that the private respondent is not qualified to be promoted in B-16 as he lacks the prescribed length of service in B-11 but the Service Tribunal failed to apply the correct law while allowing relief to the private respondent.
9. Sardar Muhammad Habib Zia, the learned counsel for Ghulam Hussain Gannai, the appellant in Civil Appeal No.50 of 2002, owned the arguments addressed by the learned counsel for Gul Zaman Awan and submitted that appeals Nos.217 and 343 of 1999 were filed without availing the departmental remedy, therefore, these appeals were liable to be dismissed summarily on this ground; whereas the appeal No.364 of 2000 was filed after the prescribed period of limitation without furnishing any valid ground for the condonation of delay. According to him, the assertion of the private respondent that he was not aware of the promotion of appellants in B-11 was not sufficient to bring his appeal within limitation. He should have specifically mentioned in detail the facts and supported the same through an affidavit. On the basis of general pleadings the time fixed by law cannot be relaxed in favour of a negligent party. The reliance was placed upon a case titled Ch. Ajaib Hussain and another v. Mst. Zareen Akhtar and 11 others 1999 YLR 1426 and unreported judgments of this Court in cases titled Muhammad Mushtaq Khan v. Board of Revenue decided on 25-11-1998 and Azad Kashmir Cooperative Bank v. Sardar Muhammad Ashraf Khan, decided on 9-8-2001.
10. Raja Ibrar Hussain, the learned Advocate-General, supported the arguments of Mr. Abdul Rashid Abbasi, and Sardar Muhammad Habib Zia, the learned counsel for the appellants. According to him, the private respondent has waived his right by not availing the departmental remedy against the promotion orders of the appellants in B-11 and other orders passed thereafter, through which the appellants were given further better grades, therefore, the belated appeals filed by him in the Service Tribunal were liable to be dismissed, whereas without any justifiable reason through impugned judgment his appeals were allowed.
11. Conversely Mr. M. Tabassum Aftab Alivi, the learned counsel for the private respondent, argued that the promotion order of the appellants in B-11 was bad in law as in their promotion order the words `Hasab Safarish Selection Committee' were not mentioned. He said that only such official acts are respected by the Courts which stood performed in accordance with the scheme laid down by law. It was further submitted that his client had never given his choice for adjusting him in college cadre. at the time when Education Department was bifurcated in schools and colleges cadres. He strenuously opposed that any benefit can be extended to the appellants on the basis of tentative seniority' lists. He further argued that all the seniority lists contained a foot note that any person whose entries are incorrect may file objection within a period fixed therein. There was also a note that if no objections are filed then the same seniority list shall be made absolute but no final seniority list was ever published/issued by the Education Department, therefore, on the basis of the entries recorded in the tentative seniority list the appellants are' wrongly claiming the benefit of seniority over his client. According to him, the official respondents in their written statement admitted the seniority of his client. Even the official, respondents have not specifically denied paras `A' and `B' of the grounds of appeal. He referred the written statement filed by the official respondents and page 51 of the paper book, the written statement filed by the appellants, and submitted that as material question of fact was not denied in their written statement, therefore, it shall be assumed that the grounds `A' and `B' contained in the memorandum of appeal of the appellants in appeal No.217 of 1999 was admitted by the appellants as well as by the official respondents. The reliance was placed upon the following authorities:--
(1) Qurban Hussain v. Mst. Bashir Begum and 6 others (PLD 1986 SC (AJ&K) 109) and
(2) Muhammad Lal v. Mohko and 2 others (PLD 1979 SC (AJ&K) 15).
12. He also relied upon annexure (1), a seniority list in which the name of the private respondent was entered at serial No.23 as against the…
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