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Appeal No. 167 of 1981, decided on 16th October, 1985.
‑‑‑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.
‑‑‑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.
‑‑‑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.
‑‑‑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.
‑‑‑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.
‑‑‑ 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.
‑‑‑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.
‑‑‑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,
‑‑‑ 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.
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 substantive right of appeal because) the defects, which are curable, at any stage do not make the appeal incompetent. Raja Muhammad Hanif referred to P L D 1980 Lah. 626 in this respect. We agree with the principle laid in the aforesaid authority and hold that appeal does not become incompetent due to these minor defects. Similarly, the appeal does not become incompetent, if the documents attached are not certified and we may add here that said documents mostly relate to the dates of appointment, transfer, joining and confirmation of the officers involved in the case. The existence of documents is nowhere disputed, only the effects of the documents and the legal validity is in dispute.
15. The third ground of attack in this respect was that the seniority list we‑ tentative and unless, finalized, no appeal could be preferred. T e appeal before us is against a specific order and not the seniority list. The position of the appellant in the seniority list is based on the, disputed view of the High Court, expressed in the impugned order, therefore, unless this order is vacated or confirmed any new position in the seniority list cannot be given to the appellant, thus to the extent of his position, the order has become final, although it is without jurisdiction, therefore, we hold that appeal is competent against such an order, before this Tribunal.
16. The fourth attack of the counsel for the respondents about the competence of appeal is that appellant has not challenged the order, dated 17‑2‑1979, whereby the respondent, Iftikhar Hussain Butt was placed in N.P.S. 18. The appeal before us is on two points. On one hand it relates to the seniority of the appellant, vis‑a‑vis the respondents Nos. 3 to 5 and on the other hand, it is in respect of the grant of pay scale 18 i.e., promotion of Mr. Iftikhar Hussain Butt from N.P.S. 17 to N.P.S. 18. So for as the question of seniority is concerned, the order, dated 12‑4‑1979, relating to the seniority has been challenged. The appeal is competent to this extent.
17. AS regards matter of grant of pay scale 18, to Mr. Iftikhar Hussain Butt, the appeal is not competent for the reasons, hereinafter, appearing:‑
(a) Vide order, dated 17‑2‑1979, Iftikhar Hussain Butt was granted N.P.S. 18. Grant of this grade is a promotion to the Selection category. The promotion can be given to the Selection category or grade on the basis of merit and ability, even without seniority as is clear from the provision of Article 25(a)(i) K.S.R. Appendix II, Volume II, which is reproduced below:‑
"Article 25. (a) All promotions shall be made by the appointing authority.
(i) Promotions to a service or class or to a selection category or grade in such service or class shall be made on grounds at merit and ability and shall be subject to the passing of any tests that Government may prescribe in this behalf, seniority being considered only where the merit and ability are approximately equal."
The perusal of the above provision, shows that length of service can be counted where the merit and ability are approximately equal. Thus, the order, dated 17‑2‑1979 cannot be treated to have been passed only on the basis of seniority. So, it cannot be challenged in appeal, M in view of the provisions of section 4 of the Service Tribunal Act.
(b) Even if the order, dated 17‑2‑1979 is passed on the basis of seniority, it has been passed by the High Court, which had the power to pass such an order and the competence of High Court is not challenged by the appellant. This order should have been challenged by the appellant before the Government as appellate authority because no representation to the High Court, in respect of this order was maintainable under any service rule. Default of appellant in this respect has barred the remedy available to the appellant and this question cannot be gone into by any authority, including this Tribunal at this stage, as the order, dated 17‑2‑1979 not having been challenged before the appropriate authority, through an appropriate proceeding has become final.
18. Next point raised by the counsel for the appellant, was that the respondents could not be confirmed to service, by the Government, w.e.f. 9‑9‑1973. He has submitted that such an order of the Government is without jurisdiction, as the ad hoc service cannot be counted towards the seniority. He has contended that the recommendations of the Public Service Commission, were prospective and not retrospective, therefore, order for confirmation of the respondents Nos. 3 to 5, was illegal. He cited P L D 1974 T. C. 239, 1974 P L C 19, 1972 P L D 170, 1984 PLC 276, P L D 1982 S C 104, 1980 P L C (C.S.) 86, P L J 1978 TC 60,294, 1983 P L C 673, P L D 1978 S C 37 and 1985 P L C 618. The counsel, for the respondent, Khawaja Muhammad Saeed, cited the following authorities:‑
1971 P L C (C.S.) 140,47,220, 1970 P L C 72 and P L D 1978 S C 37. He has argued that these authorities show that Government can confirm an officer retrospectively.
19. Amongst the authorities, quoted by Mr. Muhammad Hanif, in 1984 P L C 276, it has been held that ad hoc appointment cannot be confirmed, if the person appointed, as such fails in the examination presented for the post. The officer concerned in that case was thus, superseded by the Departmental Promotion Committee. In P L J 1974 TC 239 it was stated that retrospective confirmation of the Labour Officer appointed on ad hoc basis is not possible, because, the approval by the selection authority in his case was not retrospective and some other officers duly approved earlier have been inducted into service before the approval of the said labour officer. The other authorities are either wholly irrelevant to the issue or inapplicable in circumstances, of this case, and none of these support the plea of the counsel for the appellant that even after approval, the retrospective confirmation is not legal. Out of the authorities, referred by Khawaja Muhammad Saeed, Advocate, 1971 P L C 140 is not relevant, while 1971 P L C 47,220,72 and P L D 1968 S C 37 more or less lay down the same principle, that a probationer can be confirmed into service retrospectively, rather in 1971 P L C 47 it was contended that confirmation can take place for the purpose of seniority even from a date prior to the actual date of appointment to a particular post and actual functioning on a post is not necessary. In our view, even either these authorities does not render much help in the resolution of the issue in hand unless the state of law on the subject, in Azad Kashmir is same which prevails in Pakistan. None of these authorities explains the position of law in Azad Kashmir, therefore, we are left with the only choice to fall back to the provisions of K.S.R. dealing with the subject at the time the orders in question were passed by the Government.
20. Raja Muhammad Hanif has quoted Article 17 of Rules of Business 1971 to show that ad hoc appointment could be made temporarily but no benefit could be given to the respondent for the service, rendered by them, prior to the date of their confirmation by the Public Service Commission. We have examined the rule 17 and found that it does not throw any light on the subject. Thus, it does not deprive the respondents from the benefit of the ad hoc service, if it can be given to them otherwise. However, we have gone through the rule 15, of K.S.R., Appendix II, Volume II. For the correct appreciation of the matter, rule 14 is also relevant. Therefore, rules 14 and 15 are reproduced below: ‑
"Rule 14. (i) Where it is necessary in the public interest owing to an emergency which has arisen and could not have been foreseen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and the making of an appointment to such vacancy in accordance with these rules would involve undue delay, excessive expenditure or administrative inconvenience, the appointing authority may appoint a person, otherwise than in accordance with the said rules temporarily, until a person is appointed in accordance with the said rules but such temporary appointment shall in no case exceed 3 months on each occasion.
(ii) Every appointment made under clause (i) together with all the particulars relating to the persons so appointed, namely the date of appointment, the duration of the vacancy and the period, or periods, if any for which the same person had previously held a post borne on the cadre of the same service, class or category, the nature of the emergency or inconvenience and the reasons for the appointment shall be reported without delay to the Minister‑in‑Charge if the order is passed by a lower authority.
(iii) A person appointed under clause (i) shall be replaced as soon as possible by a member of the service or a candidate qualified and considered fit to hold the post under the said rules.
(iv) A person appointed under clause (i) shall not be regarded as a probationer in such service, class or category or be entitled by reason only of such appointment to any preferential claim to future appointment to such service, class or category.
Rule 15.
If such person is subsequently appointed to such service, class or category, in accordance with these rules, he shall commence his probation therein from the date of such subsequent appointment or from such earlier date as may be determined by the Minister‑in‑Charge."
21. The perusal of the above rules shows that temporary appointment to a post could be made for a period of 3 months, under K.S.R. while under the provisions of Rules of Business, 1971 as embodied in proviso to sub‑rule (iii) of rule 1t, such temporary appointment could be made for a period of six months. In view of this provision, the appointment of respondents Nos. 3 to 5 made on 9‑9‑1973 on the ad hoc basis was lawful, although it was subject to the approval of the Public Service Commission in due course of law on the subject. Further, study of the aforesaid rules shows that Rule 15 of K.S:R., Appendix II, Volume V, empowers a Minister‑in‑Charge to confirm the service of a probationer from the date of appointment on probation or from such earlier date as may be determined by the Government. It was lawful for the Government, in view of the provision of rule 15 to confirm in service any person temporarily appointed from any date prior to the date of his probationary appointment, which can be even the date of ad hoc appointment. So, it is held that the confirmation of the respondents, in service, from 9‑9-1973 suffers no legal defect.
22. Another point raised by the counsel for the appellant was about the service of Mirza Zaidullah, who was appointed as Registrar, vide order, dated 9‑9‑1973. He joined the service as Registrar on 1973 and was transferred as Sub‑Judge on 3‑8‑1974. We have gone through the record and found that the vacancy of Registrar was advertised, distinctly, from the two vacancies of Sub‑Judge, by the Public Service Commission. During the selection for these posts, the candidates were separately considered. Four persons were approved by the Public Service Commission, for the post of Sub‑Judge, while there was only one application for the post of Registrar, High Court, which was submitted by Mirza Zaidullah and he was also approved for this post. The fact that selection for both the posts was distinct, Makes the position clear that the post of Registrar was not included in the cadre of the Sub- Judges, otherwise in requisition the department or the Public Service Commission could have invited the applications only for the post of Sub‑Judge or all the applications, received could have been considered jointly and selection could have been made for the post of Sub‑Judges/ Registrar, which has not been the case. There is no order of the Government nor there exists a rule in this respect to show that the posts of Sub‑Judges and the Registrar were borne on the common cadre. Therefore, the only fact of the transfer from one post to another does not lead to the conclusion that there was a common seniority in these posts. We know that at present the post of Registrar of Service Tribunal has been practically made transferable with Sub‑Judges. The Member of Service Tribunal, transferable with District and Sessions Judges and even the Sessions Judges are functioning in executive on different posts. The fact of transfer alone does not bring such posts in common cadre. For this purpose, the definition of the cadre given in the Article I(i) Appendix II, Volume II, is reproduced below:‑
"Cadre means the sanctioned strength of service, clause, category or grade (permanent or temporary)."
23. From this definition only, such posts will be treated to be in one cadre, whose number of strength is given under a single item in any functional unit of any department. The position of Registrar is mentioned separately than the Sub‑Judges and in absence of a clear rule or order of the Government, showing them to be on the common cadre, it cannot be held to be, at par with the Sub‑Judges for the purpose of seniority. The transfer of an officer could be made under the provisions of K.S.R. in the past, and under the provisions of section 9, of Civil Servants Act, 1976, now to any post in Azad Kashmir or even in Pakistan. The factum of transfer, thus does not serve as a guide for determination of this matter. The rules were also framed for the ministerial establishment of the High Court, wherein the post of Registrar has been also mentioned. It is not shown in the rules that this post would only be filled in by the transfer of any judicial officer, nor it has been shown that incumbent of this post has common seniority with the judicial officers. It can be so only if a person is appointed as judicial officer and then posted as Registrar. In view of our above observations, it is held that service of Mirza Zaidullah, prior to 3‑8‑19731 does not count towards the seniority, for the post of Sub‑‑Judge, although, he is entitled to all other benefits, admissible under the rules.
24. Next point relates to the seniority of Raja Niaz Ahmad. It was contended by the counsel for the appellant that Raja Niaz Ahmad was appointed as A. D. C. in the Revenue Department and in the appointment order, further amendment was made through an order, passed on 1‑6‑1975, which indicated that services of Raja Niaz Ahmad were permanently transferred to the Revenue Department. Having served in that department, he was again transferred to judicial department, and posted as Sub‑Judge, in N.P.S.17. The counsel for the appellant argued that the service rendered by Raja Niaz Ahmad, outside the department disentitled him for the seniority, for the period upto the date of his re‑joining the judiciary. This point is very important and in our view it is linked with the main issue on which, rests fate of the whole case. Therefore, it will be dealt with alongwith the first point, raised by the counsel, for the appellant, whereby he has pleaded‑that the appellant was entitled to the seniority for the post of Sub‑Judge from the date of issuance of his order, of appointment i.e., 22nd August, 1973.
25. There is also one objection of the respondents that the appellant not having been approved by the Public Service Commission, is not a permanent Sub‑Judge, even now, therefore, he cannot be considered for seniority vis‑a‑vis the respondents Nos. 3 to 5. This point is clarified by section 7(2) of the Public Service Commission Ordinance and rules 3 and 6, made thereunder, which are reproduced below:‑
"Section 7.‑‑ Functions of the Commission.‑‑ The functions of the ‑Commission shall be
(a) to conduct test and examination for recruitment to the civil services of Azad Jammu and Kashmir and such posts in connection with the affairs of the Government as may be prescribed by rules made under section II;"
"Rule 3.‑‑ The Commission shall conduct tests and examinations for recruitment to:‑
(i) the civil services and civil posts connected with the affairs of the Government falling in grades 16 and above, except those specified in Schedule I;
(ii) such posts in or under a Corporation or other body or organization set up by Government under any law carrying a scale of pay the maximum of which is Rs.2,200 per mensem or above as may be referred to the Commission; and
(iii) any other posts which may be referred to the Commission for recruitment by the Government."
"Rule 6.
Notwithstanding anything contained in rule 3, the Commission shall not conduct test for recruitment to posts which are filled
(i) on contract for a specified period; or
(ii) for a period of six months or less pending selection of a candidate on the basis of test conducted by the Commission:
Provided that the above period may be extended:‑
(a) for a further period of six months with the approval of the Commission if a requisition for filling the post was sent to the Commission before filling of the post on ad hoc basis and the Commission had failed to nominate a candidate; or
(b) in any other case, by order of the Government; or
(iii) by transfer of an Officer of the Armed Forces or an officer already holding a post on regular basis in equivalent grade under the Government or Azad Jammu and Kashmir Council or under the Federal or a Provincial Government of Pakistan.
Explanation:‑‑
For the purpose of clause (iii) 'regular basis' means other than ad hoc, contract or temporary basis for a specified period."
26. The above statutory provisions show that no approval or Commission is necessary, in case of transfer of a person to the equivalent post, who holds a post on the basis of regular appointment. Mr. Ashraf Kayani joined service as L. D. O. in N. P. S. 17 after the approval of Public Service Commission. Therefore, no approval of Public Service Commission, for his appointment as Sub‑Judge, was required.
27. The last point, which was hotly contested by the counsel for the parties, relates to interpretation of words 'date of first appointment'.
28. The Advocate‑General and Khawaja Muhammad Saeed, Advocate for the respondent No. 3, argued that for the purpose of seniority, the service of appellant commenced from 11‑12‑1973, when he practically reported for duty in the Judicial Department. Raja Muhammad Hanif cited 1973 P L C 84, 1974 P L C 8, 20 and P L J 1978 TD 275 in order to substantiate his contention that the seniority could be determined with reference to the date of appointment, which according to him means the date of issuance of order. The Advocate‑General and Khawaja Muhammad Saeed, referred to 1971 P L C 316, 1979 P L C 3 and 1977 SCMR 365.
29. Amongst the reference given by Mr. Hanif, we could not find any authority on page 84 of P L C 1973 nor on pages 8 or 20 of P L C 1974. The only authorities from these thus remains P L J 1978 TC 275. This is a case of Stenographer. He was selected as Stenographer on 17‑7‑1964 out the staff of Director, Audit and Accounts for the staff of Auditor‑General. He joined the post the same day. The order was, however, issued on 2‑4‑1968." it was held that he was entitled to the seniority, w.e.f. 17‑7‑1964, the date of selection. This authority is not applicable to the case in hand.
30. For the reference made by Khawaja Muhammad Saeed, Advocate, we may say that we could not find any authority on page 3 of P L C 1974, nor there was any page 316 in the P L C 1971 quoted by him, thus only case available was 1977 S C M R 365. This case relates to the seniority of an E.A.C. who was absorbed against one of the vacancies, temporarily created in 1948. He was appointed on regular basis on 4‑8‑1951, w.e.f. 1‑7‑1951. He was refused seniority as E.A.C. on the basis of his periodical appointment against the ex‑cadre posts of E. A. C. The word 'date of joining' in any caption of an authority is not used in the sense the respondents presume. It generally means the appointment or entry and that the date of assuming the charge of office. This case in no way supports the plea of the learned counsel.
After discussing these authorities, we may point out that these authorities, quoted by the counsel on both the sides, have given us no help. So, we revert back to the provision of K.S.R. relating to the point of seniority. The relevant provision, which prevailed at the time of the appointment of officers, involved in the case, before us, are embodied in Article 24 of K.S.R. which has been reproduced in the earlier part of this judgment. The words significant in these provisions are 'the date of his first appointment to such service, clause, category or grade'. The first appointment is nowhere defined either in these rules or in any other set of rules. It is pertinent to note that the word 'first appointment' is not used in the corresponding rules enforced in Azad Kashmir in 1977. Extract from the rules of 1977 regulating the seniority is reproduced below:‑
Rule "8.
The seniority inter se of persons appointed to post in the same grade in a Functional Unit shall be determined:‑
(i)(a) In the case of persons appointed by initial recruitment, in accordance with the order of merit, assigned by the selection authority:
Provided that person, selected for appointment to the grade in an earlier selection shall rank senior to the persons selected in a later selection; and
(b) in the case of persons appointed otherwise, with reference to the dates of their continuous appointment in the grade; provided that if the date of continuous appointment in the case of two or more persons appointed to the grade is the same, the older if not junior to the younger in the next below grade, shall rank senior to the younger person."
31. It is also pointed out that provision relating to seniority differ in respect of some departments. For instance, in Police Department, the seniority is regulated with reference to the date of confirmation. In some of the rules, it is determined with reference to the date of continuous regular appointment, while in K.S.R. different phraseology has been used.
32. A comparative study of the provisions of different rules show that the word used namely "the first appointment" in the K.S.R. for regulating the seniority have somewhat different significance than the language employed, for such purpose in the other statutes. We fall back for the clarification of the words "the date of his first appointment" to the earlier provisions of these rules, wherein the words "first appointment" has been used. For this purpose, rules 8 and 9 (K.S.R.) are relevant, which are reproduced below:‑
"Rule 8.
All first appointments to any service or class shall be made by Government or by an authority empowered by Government in this behalf and where they are made by an authority subordinate to Government they shall, except with the sanction of Government, be made to the lowest category or the lowest grade of a category if it consists of more than one grade."
Note.
The provisions of this rule will not apply to the Civil Service Judicial.
Rule 9.
First appointments to a service or class may be made:‑
(i) by transfer or promotion from another service or class, or
(ii) by direct recruitment, or .
(iii) partly by (i) and partly (ii)."
33. Close study of these rules coupled with provision of rule 24, makes it amply clear that words "first appointment" is somewhat different than the mere word 'appointment' generally used in these rules of used elsewhere and by no stretch of imagination, it can be said that word 'the date of first appointment' used in rule 24 can be considered, as the date of joining, rather it would refer to the date, when the appointment is made and not the date when the appointment is acted upon by the appointee, by joining the service. The fact that Government confirmed the respondents in service, from 9‑9‑1973 also shows that for the purpose of seniority, they were treated in service from 9‑9‑1973, which is the date of the issuance of their appointment order and not the date of their joining. The respondents Nos. 3 and 4, practically joined the service on 10‑9‑1973, whereas the respondent No. 5, joined service on 15‑9‑1973, but their confirmation was pre‑dated to the date of issue of their appointment order. This fact also supports the plea of the appellant.
The third reason in this case, which supports the plea of the appellant, is that he was not having a choice to join the service as Sub‑Judge, immediately after the issue of appointment order, as he was already employed, in a department on equivalent post and had to be relieved by the Government, for enabling him to join the other post. The delay in joining the new post is not attributable to the conduct of the appellant, therefore, he cannot be deprived of his rights, in not joining the service, earlier than the appellants. He was required to serve in the law department, even after the issue of his appointment order and in the interest of the Government, he continued working in that department, for which, no fault can be attributed to him. This point can be viewed, otherwise, from the angle that any Government Servant, serving in one department, can be required to serve in the other department and the fact of his actual service in the other department, does not deprive him of the benefit of service in his own department. Thus, it becomes immaterial that an officer services in one department of the Government or the other after appointment and prior to his joining duty on any specific post, or subsequent to the joining of such post. The period of service thus rendered in compliance to the command or requirement of the Government, cannot be excluded from his service, to which he was appointed for the purpose of determination of seniority. The appointment date even though becomes fictional one without resuming the charge of the post assigned, yet can be considered for the seniority. One point, which has been pleaded in defence for the purpose that under rule 23 no one can have lien against two posts. It is clear that after the appointment of Mr. Ashraf Kayani, as Sub‑Judge, Bagh, he acquired lien against that post immediately after the issuance of the order of his appointment and no subsequent appointment, to that post was possible, unless the appointment order of Mr. Ashraf Kayani was vacated and his right of joining that post was revoked by the Government, while any appointment to the post of Law Drafting Officer could be made after the issuance of order of Mr. Ashraf Kayani and under the administrative arrangements, any one of them could be asked to get his pay and emoluments, from the other available vacant posts. Therefore, application of rule 23, as sought by the counsel for the respondents is not possible, and it does not bar the accounting of this period of service, rendered by Mr. Ashraf Kayani in the Law Department, after issue of his appointment order towards his service in judiciary.
35. The date of assuming the charge of office will be the determining factor of seniority if the date of selection as well as the date of first appointment of two or more persons was same but the posts had the different nomenclature in the first instance and were later on amalgamated on account of some re‑organisational measure and brought in one class and category. In such situation, when the selection was made for different posts, though in the same grade the considerations for merit could not have been alike the existing rule could not apply. Thus, under the principles of equity, only the date of joining could be the deciding factor as is laid down in 1975 P L C 81. In the case in hand position is different and the above principle will not apply as it negates the provisions of Article 24, K.S.R. discussed earlier.
36. In some other rules, in such cases, the provisions of earlier selection determine the seniority, where the dates of appointment are different. Thus, determining seniority, with reference to date of appointment instead of date of joining under Article 24, K.S.R., conforms, to the spirit of rules bearing reference to the earlier selection.
37. In view of the discussion, made by us the foregoing paragraphs, it is held that Mr. Muhammad Ashraf Kayani was senior to the respondent, Nos. 3 to 5 as Sub‑Judge, in N.P.S. 17 and he is entitled to the seniority in service as Sub‑Judge N.P.S. 17, from the date of appointment and not from the date of joining.
38. On this analogy, Mr. Niaz Ahmad will also get seniority, in the judicial department, from the date of his first appointment and factum of his service outside the judiciary, will not effect the determination of his seniority, from the date of his first appointment because he never applied for the transfer to any other department, with an intention of surrendering of his right, to seniority. It is a prerogative of the Government to transfer any Government servant, to any other department and to re‑transfer him to his parent department and such transfer will not put to an officer, in any disadvantage in the matter of his terms and conditions of the appointment. Thus, it is held that Mr. Niaz Ahmad will be entitled to the seniority, in the judicial department from 9‑9‑1973.
39. The last question is the determination of relief, sought by the appellant, in matter of N.P.S. 18 from 30‑10‑1978. As already remarked in earlier part of this judgment, he had not appealed against the order of promotion of Mr. Iftikhar Hussain Butt, whereby he was granted N.P.S. 18, vide Order No. 1225‑29/H.C./79, dated 17‑2‑1979. This order was passed prior to the order, which has been challenged by the appellant, before us. Therefore, this promotion remains uneffected, by the order of this Tribunal. So far as the promotion of respondents Nos. 4,5 to N.P.S. 18 is concerned, it is based on the seniority as per statement of Ghulam Muhammad Loan, Deputy Registrar, whom we examined as Court witness. These promotions have been made during the pendency of the appeal of the appellant on 17‑11‑1984 and 21‑8‑1985, respectively and have not been made on the basis of merit and ability. The rights of the parties are to be determined according to the state of law and facts as these stood on the date, when the action in any Court of law commenced. The doctrine of 'lis pendence' applies, even in the case in hand. Therefore, it is held that Mr. Muhammad Ashraf Kayani, appellant, in view of determination of his seniority, will be deemed to have been promoted as Selection Grade Sub‑Judge, in N.P.S. 18, from the date of promotion of respondent No. 4, i.e., from 17‑11‑1984, which was made after the promotion of respondent No. 3, and the adjustment shall be accordingly made in the seniority as well as in the gradation of these officers, by the competent authority.
40. Upshot of the whole discussion is that we accept this appeal, and set aside the orders in question, directing as under:‑
(a) The appellant shall be placed in the seniority list of the Sub Judges, in N.P.S. 17 above the respondents Nos. 3, 4 and 5.
(b) He will be deemed to have been promoted in N.P.S. 18 as Sub Judge, selection grade, from the date of promotion of respondent No. 4, Which is 17‑11‑1984. He will rank below respondent No. 3, as Sub‑Judge in N.P.S. 18. Further, adjustment in seniority, as well as in gradation, shall be made by the competent authority, accordingly.
(c) We make no order as to the costs
A. E.
Orders accordingly.
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