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(On appeal from the judgment of the Service Tribunal dated lb-ltl-1985 in Appeal No. 167 of 1981)
---S.4--Appeal--Maintainability--Memo of appeal filed by the appellant although not properly drafted yet indirectly it could safely be interpreted to mean that appellant not only intended to assail the order passed on his review petition but he did assail the said order by necessary implications--Clumsy drafting of 1hc pleadings or a memo. of appeal should not stand in the way of the Court to administer justice or to deny relief to an aggrieved person to which he was otherwise entitled.
Kh. Bashir Ahmed v. Azad Government, F.A. Tahir v. Azad Government and others decided on 8-11-1988 and Azad Government v. Mujahid Hussair. Naqvi decided on 27-3-1983 ref.
-----S. 30(2)--Kashmir Civil Service Rules, R. 24--Civil servant"s seniority-----Factors determining seniority in the two laws are totally at variance with each other and mutually destructives" thus cannot stand together.
---R. 24--Scope and application of R. 24.
---S. 30(2)--Judicial Officer--Determination of seniority--Powers of High Court and Government--Preparation of seniority list of Judicial Officers cannot be termed as without jurisdiction.
Section 30(2) of the Azad Jammu and Kashmir Courts and Laws Code Act, 1949 in clear terms means that determination of seniority by the High Court would assume legal character only if it carries on it the seal of the Government but it is wrong to say that the Government is the final authority in the matter. It is a wrong impression that High Court is a recommendatory body. The power of determining seniority is vested in the High Court and the Government together and their joint efforts culminate in the final determination. In fact the scale seems to tilt in favour of the High Court when the law provides that the "High Court shall with the approval of the Government determine the seniority of Judicial Officer. There is a weighty reason for this inference in the fact that it is the High Court which can better judge the efficiency, honesty etc. of Judicial Officers
Preparation of a seniority list by the High Court cannot be termed as an act without jurisdiction. Preparation of seniority list is an act which is in exercise of the power vested in it by law and to term it as void would not be possible in law.
------- Presumption that the High Court had acted in accordance with law will stand as presumption of truth unless challenged and duly rebutted.
---S. 4--Azad Jammu and Kashmir Courts and Laws Code Act, 1949, S. 30(2) Judicial 011-iccrs--Dctcrmination of Seniority--Appeal--Seniority list would not assume legal shape unless approved by the Government--Seniority list prepared by high Court becomes final when the Government grants its approval and on1. (lien it becomes appealable.
----S.30---(2)--judicial Officer--Seniority--Jurisdiction of High CourtJudicial Officer demanded that he may be placed at a particular position in the seniority list prepared by the High Court which representation was duly considered by Judges of the High Court and rejected by giving reasons--Held, there was no defect of jurisdiction of High Court in the matter.
---
R. 24--Rule 24 does not apply to Judicial Officers.
-----Legality of an order depends on the substance and not the form.
---S. 30(2)--Judicial Officers--Determination of seniority.-Provisions of S. 30(2) is the law applicable for determining the seniority of Judicial Officers and therefore it has to be proved that a person had become a Judicial Officer so that S. 30(2) may become applicable.
---S. 30(2)--Judicial Officer--Determination of seniority--Held service term "first" appointment" did not occur in S. 30(2) and thus date of first appointment was not relevant for determination of seniority.
---S. 30(2)--Judicial Officer--Determination of seniority--Words "duration of service" in S. 30(2)--Import--Length of service is not the only but one of the factors which have to be brought under consideration for determining seniority.
---S. 30(2)--Judicial Officer--Determination of seniority--Judicial Officer before joining as judicial officer had been in Government service--While determining seniority of such an officer, High Court would bring past experience" under consideration and give it due weight--What weight had to be given to past experience" had been left to the discretion of the High Court.
---S.30 (2)--Azad Jammu and Kashmir Service Tribunals Act, 1975, R. 4--Judicial Officer--Seniority--Appeal to Service Tribunal--Prayer of appellant Judicial Officer against the order of High Court wherein his seniority was determined running counter to S30(2), order of High Court was unexceptionable
---S. 30(2)--Judicial Officer--Determination of seniority--Seniority of Judicial Officer would be considered from the date on which he becomes a Judicial Officer.
----Civil service--Doctrine of lis pendens has no application to service matters.
-----S 5----Service Tribunal--Exercise of ---ScopeConditions for exercise of--Non-fulfilment of conditions--Effect--No power in Service Tribunal to exercise jurisdiction suo motu where conditions for exercise of such jurisdiction were absent.
If a Tribunal of limited jurisdiction is created for a specified purpose it has to conform to the requirements of the charter which creates it If the I which creates a Tribunal attaches conditions for the exercise of jurisdiction the Tribunal has to abide by them and if it goes beyond it or exercises powers without fulfilment of the conditions attached to it the action of the Tribunal cannot be sustained. According to the scheme of the Service Tribunals Act, the Tribunal has been given the jurisdiction to act if three conditions are fulfilled: firstly, there should be a final order regarding the terms and conditions of a civil servant; secondly, a departmental representation or appeal against the aforesaid final order should have been made to the specified authority not less than 90 days prior to the filing of the appeal and thirdly, an appeal should be brought before it. If these conditions are not fulfilled the Tribunal does not acquire jurisdiction in the matter. Section 5 of the Service Tribunals Act also unmistakably shows the intention of law that the Tribunal"s jurisdiction is limited to orders against which appeals are brought before it.
Where all the three conditions which were necessary for the exercise of jurisdiction by the Service Tribunal were absent, the Service Tribunal would not have the power to act suo motu because the jurisdiction of the Tribunal was dependent on filing of an appeal.
Shahnaz Begum v. Hon"ble Judges of Sind and Baluchistan High Court P L D 1971 S C 677 ref.
---S. 96--Appeal--Point not included in the concise statement filed by appellant cannot be raised for the first time during arguments.
--- Consequences--Such order cannot be set aside by a Court or a Tribunal without regard to other considerations--Void order is only a type of illegal order-Such order is void because it is so illegal that it does not exist in the eye of law-Void order when proved can, however, create consequences--Every void order thus cannot be ignored and set aside.
Shahnaz Begum v. Hon"ble Judges of Sind and Baluchistan High Court P L D 1971 S C 677; Noor Muhammad v. Member, Election Commission, Punjab, Lahore and 2 others 1985 S C M R 1178; Syed Mahmud Alam v. Syed Mehdi Hussain and 2 others P L D 1970 Lah. 6; Muhammad Swalch and another v. Messrs United Grain & Fodder Agencies P L D 1964 S C 97; Muhammad Rati v. Government of the Punjab, Lahore and others 1986 P L C (C.S.) 734; Shamsher Ali Khan v. Commandant Border Military Police, D.G. Khan and another 1984 P L C 759; Province of Punjab through Finance Secretary v. Ramzan Ali and others P L D 1982 S C 349 -and Sharif Ahmad Hashmi v. Chairman Screening Committee 1978 S C M R 367 ref.
---S. 4--Appeal--Mere fact that certain order of Department was mentioned in the narration part of appeal filed with Service Tribunal would not amount to riling of an appeal against that order specially when there was no averment relating to the order in grounds of appeal.
Ikramuddin Syed v. Chief Secretary, Government of Sind 1979 S C M R 469 ref.
---Order issued by Officer of the Department stating in the order that it had been issued "by order"--Held, being an official act there was a presumption that it had been regularly performed.
---S.4--Appeal--Service Tribunal can set aside or modify an order if an appeal is filed against it.
---S.12Word "including"--Meaning--Expression "judicial service including Registrar"--Connotation--Post of Registrar, High Court belongs to the Judicial Service.
The word including" is used to enlarge the scope of a word or term. The category which precedes this word brings within its mischief the category which follows it even if it is not so otherwise. Therefore, the words " judicial service including Registrar " clearly connote that post of Registrar would be considered to be one belonging to the judicial service.
---S. 30(2)--Scope, object and application of S.30 (2) Section 30(2) of the Laws Code appears to be a legislation of somewhat unusual nature. Normally the seniority of a person in Government service is fixed on the basis of length of service while qualifications, past experience and some other factors are taken into consideration at the time of recruitment. Other factors mentioned in this provision of law, for instance, honesty and efficiency are considered at the time of promotion. But section 30(2) has made all these factors to be the basis of seniority. However, the will of the law-maker has to prevail and the Courts, being the creation of law, cannot arrogate to themselves the functions which are entrusted to the law-maker or to question the wisdom of law. As it is the law as enacted by the law-maker, which in the present context is section 30(2) of the Laws Code, it has to be administered for the determination of the seniority of Judicial Officers.
---S. 4--Appeal-Limitation. Section 4 of the Act made a specific provision that civil servants could prefer appeals to the Service Tribunal within 6 months of its establishment under the Act. The only embargo was that an appeal could not be filed against an order or decision of a departmental authority made before the 1st of July, 1969.
---S. 4--Appeal--Grievance touching adversely terms and conditions of a person in Service has to be represented at, proper time while filing appeal before Service Tribunal in the prescribed manner.
--- Void orders can be struck down provided there is no statute or principle of law which would make it unjust or inequitable to strike down such order to 5811 EE.
---Art. 199--Void order--Exercise of writ jurisdiction against--Writ may be refused against a void order if such writ would enable the petitioner to circumvent the provisions of a statute of limitation.--(Void order].
Raja Muhammad Hanif, Advocate for Appellant (in Civil Appeal No. 22 of 1986)
Nemo for Respondents Nos. 1 and 2 (in Civil Appeal No. 22 of 1986).
Rafrque Mahmood, Advocate for Respondent No. 3 (in Civil Appeal No. 22 to 24 of 1986).
Abdul Rashid Abbasi, Advocate for Respondents Nos. 4 and 5 (in Civil Appeal No. 22 to 24 of 1986).
Abdul Rashid Abbasi, Advocate for Appellants (in Civil Appeal No. 22 and 23 of 1986).
Raja Muhammad Hanif, Advocate for Respondent No. 1 (in Civil Appeal No. 22 to 24).
Sardar Rafique Mahmood, Advocate for Respondent No. 4 (in Civil Appeal No. 24 of 1986).
The Registrar of Azad Jammu and Kashmir High Court on 9th of September, 1973, issued an order which runs as follows:--
"The following appointments are hereby made as a purely ad hoc arrangement for six months as it would take sometime to complete the formalities of going through Public Service Commission, adversely affecting in consequence the disposal of work. The Public Service Commission should be requested to call for applications in accordance with law to fill up these posts within next six months:--
(1) Mr. Niaz Ahmad, at present Public Prosecutor, Rawalakot is posted as Additional Sub-Judge Bagh.
(2) Ch. Karam Dad, at present Assistant Director, Local Government People"s Works Programme, posted as Additional Sub-Judge, Kotli.
(3) Mr. Iftikhar Hussain Butt, Pleader Kotli, posted as Additional Sub Judge, Rawalakot.
(4) Mr. Zaidullah, Pleader, Mandi Bahaud-din posted as Registrar, High Court of Judicature, Muraffarabad."
2. About nine months later on 8th of June, 1974, the High Court issued the following order:--
"Azad Government of the State of Jammu and Kashmir having accepted the recommendation of the Public Service Commission with regard to the appointments of the following officers on the posts shown against their names has confirmed their appointments vide No. Admin/Gazctted/1363/74, dated 6-6-1974 w.e.f. 9th of September 1973. The order of confirmation of their appointments I hereby formally issue---"
(1) Ch. Karam Dad, Additional Sub-Judge, Kotli.
(2) Mr. Iftikhar Hussain Butt, Sub-Judge, Rawalakot.
(3) Mr. Niaz Ahmad Khan, Additional Sub-Judge, Bagh.
(4) Mr. Zaid Ullah, Registrar, High Court."
3. Mr. Muhammad Ashraf Kayani was appointed by the Government as Law Drafting Officer in the Law Department on 8th of March, 1972. This appointment was made on regular basis and was in pursuance of a recommendation of the Public Service Commission which had duly advertised that post. While Mr. Kayani was working as Law Drafting Officer the Registrar of the High Court issued an order on 19th of August, 1973, by which among others, Mr. Ashraf Kayani, Law Drafting Officer, was appointed as Sub-Judge. The order also said that after the services of Mr. Muhammad Ashraf Kayani were placed at the disposal of the High Court, he shall take over as Sub-Judge/Forest Magistrate at Bagh. The Government did not relieve Mr. Kayani for quite sometime and it is ultimately on 11th of December that he was able to join as Sub-Judge in pursuance of the appointment made by the High Court. During the period commencing from 28-1-1971 and ending on 24-8-1974 when Rules of Business framed under the Azad Jammu and Kashmir Government Act, 1970, were in force the Chief Justice of the High Court was vested with the authority of passing final orders of inter alia, recruitment, appointments etc. in respect of posts in the judicial department below the rank of Sessions Judge.
4. On 5th of November, 1978, Mr. Kayani submitted an application to the High Court in which he stated that he had earlier sent an application which remained unanswered but on 19th of October, 1978 an order had been issued by the High Court in which it has been stated that in view of the seniority list Mr. Iftikhar Hussain Butt and Mirza Zaid Ullah had been appointed to the posts of Sub-Judges-cum-A.D.Ms. The applicant further said that prior to this he had been told that no seniority list had been issued but it appeared that a seniority list had since been prepared as had been mentioned in the order mentioned above. In his application Mr. Muhammad Ashraf Kayani stated that he had been practicing for sometime and had later on been selected by the Public Service Commission as Law Drafting Officer in Grade-17 and he had been working against that post when he was transferred as a Sub-Judge by the High Court. It was added that the appointment of Raja Niaz Ahmad Khan, Ch. Karam Dad Khan and Mr. Iftikhar Hussain Butt as Additional Sub-Judges and that of Mirza Zaid Ullah as Registrar were purely on ad hoc basis for a period of six months and all four of them had been approved by the Public Service Commission on a date which was subsequent to the date on he which Mr. Ashraf Kayani had taken over as Sub-Judge. The applicant went on to say that the Azad Jammu and Kashmir Civil Servants (Appointments and Conditions of Service) Rules, 1977, laid down that seniority shall be counted from the date on which a civil servant started functioning in a particular grade. It was also claimed that period spent on ad hoc appointment could not be counted for seniority and reference was made to rule 8 of the aforesaid rules. The applicant further said that in law seniority does not count from the date on which a Judicial Officer joins a particular post but it has to be fixed in terms of subsection (2) of section 30 of the Azad Jammu and Kashmir Courts and Laws Code Act, 1949. The prayer in the application was that Mr. Kayani may be declared senior at least as compared to Mr. Iftikhar Hussain Butt, Mr. Zaid Ullah and Raja Niaz Ahmad Khan and also that he may be placed it selection grade N.P.S. 18.
5. While this representation was pending, Registrar of the High Court issued the following order on 17-2-1979:--
"Consequent upon the temporary promotion and appointment of Sardar Mushtaq Ahmed Khan, as Additional District and Sessions Judge, Mirpur. N.P.S. No. 18, sanctioned vide Government Order No. FD/1594-1644/76, dated 11-2-1976 for 15% of the regular strength of Sub-Judges is hereby sanctioned in favour of Kh. Iftikhar Hussain Butt w.e.f. 30th October, 1978 the date on which he had taken over as SubJudge/A.D.M. at Rawalakot.
This order will remain in force till Sardar Mushtaq Ahmad Khan, holds the post of Additional District and Sessions Judge."
6. Mr. Ashraf Kayani submitted another application to the Registrar of the High Court on 15th of March, 1979, in which he stated in continuation of his earlier application dated 5th November, 1978 that even according to K.S.R. he was senior to Mr. Iftikhar Hussain Butt, Raja Niaz Ahmad Khan and Mirza Zaid Ullah Sub-Judges because he (Mr. Ashraf Kayani) had been appointed Sub-Judge on 22nd of August, 1973, by the High Court whereas the other three Sub-Judges were appointed on 9th of September, 1973. However, the three gentlemen were able to immediately report to their places of posting while the appellant Mr. Ashraf Kayani only succeeded in doing so on the 11th of December, 1973, because he had not been relieved from the Law Department where he was posted at that time. Mr. Ashraf Kayani pleaded that although the three gentlemen had reported for duty on dates which were earlier to the date on he which joined as Sub-Judge but this did not affect the seniority of Mr. Ashraf Kayani because not only that he was in continuous Government service from 8th of March 1972, when he took over as Law Drafting Officer, but also that the appointment order so far as he was concerned had already been issued when the other gentlemen were appointed and joined duty as Sub-Judges. It was pleaded that the term first appointment" was important and in this aspect rule 9 of the K.S.R. was, according to the application, very clear. In the application it was requested that it may be brought under consideration that Mr. Kayani"s first appointment as Sub-.fudge was prior to the first appointment of the other three gentlemen as Sub-Judges and also that the appellant was already in Government service. The applicant again prayed that he may be declared senior to Mr. Iftikhar Hussain Butt, Raja Nraz Ahmad Khan and Mirza Zaid Ullah and also that he may be given NPS-18.
7. On 12th of April 1979, the Deputy Registrar of the High Court addressed a communication to Mr. Ashraf Kayani which formed the impugned order in the appeal in the Service Tribunal. It reads as follows:--
"While inviting your attention towards your representations dated 5-11-1978 and 15-3-1979 pertaining to the subject noted above, I am directed to say that these representations were placed before the Judges who in their meeting held on 10th of April, 1979, have been pleased to decide as under:--
Decided that since under the provisions of K.S.R. seniority is to be determined from the date of his first appointment to such service or class or category about which the question has arisen and Mr. Kayani having Domed as Sub-Judge on 11-12-1973, his plea for on of seniority as Sub-Judge from the date of joining the Azad Kashmir Government as Law Drafting Officer on 8-3-1972 is devoid of force and is therefore rejected.
8. Dissatisfied with this decision of the High Court Mr. Ashraf Kayani filed an appeal before the Government on 8th of July. 1979, against the aforesaid order passed by the High Court. This appeal was rejected on 2nd of June, 1981 by a short order of which the operative part was that the appeal had not been found by the President of Azad Jammu and Kashmir to be sustainable. Mr. Muhammad Ashraf Kayani filed an appeal before the Service Tribunal on 24th of June, 1981. He impleaded the Registrar of the High Court, Azad Government of the State of Jammu and Kashmir and the three other Sub-Judges as respondents. The appeal was filed against order of the High Court dated 10th of April, 1979, and the. prayer made in it was that the impugned order of the High Court dated 10th of April, 1979 may be set aside so as to declare Mr. Ashraf Kayani as senior to the three other Sub-Judges and that N.P.S. No. 18 may be granted to the appellant w.e.f. 30th of October, 1978, at least. It may be noted that although the order from which the appeal was preferred was the one which was passed by the High Court but the order passed by the Government was also mentioned in the memorandum of appeal and a copy, though unattested, was also filed with it:
9. The main grounds urged in the memorandum of appeal were:--
(i) the appellant could not be deprived of the benefit of the period of service put in by him as Law Drafting Officer;
(ii) respondents Mr. Iftikhar Hussain Butt and Raja Niaz Ahmed Khan had been appointed as ad hoc Sub-Judges and were not entitled to compete with a permanent Sub-Judge from the date of their ad hoc appointment. In other words time spent as ad hoc appointees did not count for seniority;
(iii) respondent Mirza Zaid Ullah was initially appointed as Registrar High Court and not as Sub-Judge and it is tong after on 3rd of August, 1974.
that he was appointed as Sub-Judge for the first time. He could not, therefore, tag tile period of service as Registrar High Court which is period of service as Sub-Judge.
(iv) seniority starts from the date of appointment and not from the date of joining.
10. At the time of arguments before the Service Tribunal another point which, seen in light of the judgment of the Service Tribunal, turned out to be of vital importance was raised by Mr. Kayani"s counsel. He contended that the impugned order of the High Court passed on 12th April, 1979, was void because the. High Court had no authority to pass any order in respect of seniority of judicial Officers. The contention was that subsection (2) of section 30 of the Azad Jammu and Kashmir Courts and Laws Code Act is to the effect that seniority of judicial, Officers has to be determined by the High Court with the approval of the Government which had not been obtained while rejecting application filed b Mr. Ashraf Kayani.
11. Apart from resisting the appeal on merits, the other Sub-Judges raised some prelimmrrt ry objections suggesting that the appeal was not maintainable. One of the points was that appeal had been filed from the order passed by the High Court on 10-4-1979, while the order passed by the Government on 2-6-1981 by which Mr. Ashraf Kayani"s appeal had been dismissed had not been challenged. It was urged that order of the High Court had merged in the appellate order passed by the Government and it was the subsequent order, which was the final order. It was also pleaded that in any case the appeal was time barred as the order of the High Court was passed on 12-4-1979 while the appeal was filed on 25-6-1981. According to the objection appeal could be filed within 30 days to which could be added a period of 90 days which must according to section 4 of the Service Tribunal Act, elapse after filing of departmental appeal.
12. The appeal was decided by the Service Tribunal on 16-10-1985. Judgment of the Tribunal may be summarised as follows:--
(a) The objection regarding maintainability of the appeal was repelled by holding that the High Court did not possess the power to determine seniority of judicial Officers without approval of the Government, therefore, the High Court acted without jurisdiction when it on its own rejected Mr. Ashraf Kayani"s representations by the impugned order. The Tribunal held that there is no limitation in respect of a void order. It also found the appellate order passed by the Government to be equally void. The Tribunal also upheld the plea that although Government order had not been specifically challenged it would be deemed that it had been impliedly challenged. The Tribunal also observed that the order passed by the Government did not bring about any change in the order of the High Court, therefore, the order of the High Court become final when appeal filed against it was rejected;
(b) Mr. Ashraf Kayani was declared to be the senior most among the four contesting Sub-Judges on the ground that seniority begins from the date of first appointment and not from date of joining;
(c) order granting Grade-18 to Mirza Zaid Ullah and Raja Niaz Ahmed during the pendency of the appeal before the Service Tribunal was set aside and instead it was awarded to Mr. Ashraf Kayani w.e.f. 17th of November, 1984;
(d) It was held that period spent as ad hoc appointee counts towards seniority, if it is so ordered and this benefit was, therefore, validly given to the three Sub-Judges;
(e) it was held that Mirza Zaid Ullah had been wrongly given benefit of the period during which he was working as Registrar of the High Court so far as his seniority as a Sub-Judge was concerned; and
(f) the order passed on 17-2-1979 by which Selection Grade i.e. N.P.S.-18 had been sanctioned in favour of Mr. Iftikhar Hussain Butt was kept intact on the ground that the same had not been challenged by Mr. Kayani m his appeal before the Service Tribunal.
Against this order all the four contesting Judicial officers have, with leave of the Court, filed appeals in this Court and they have different grievances. While Mr. Iftikhar Hussain Butt, Raja Niaz Ahmed and mirza Zaid Ullah have the grievance that their seniority has been upset without lawful basis, Mr. Ashraf Kayani has the grievance that it has been wrongly ordered by the Service Tribunal that the order by which selection grade had been granted to Mr. Iftikhar Hussair Butt shall remain intact. In this Court three appeals have been filed. One jointly by Mirza Zaid Ullah and Raja Niaz Ahmed Khan, second by Mr. Iftikhar Hussain Butt while third is by Mr. Ashraf Kayani. Mr. Ashraf Keyani had made all the three other contestants as respondents but has clarified ,in the memorandum of appeal that he did not want any relief against Raja Niaz Ahmed Khan and Mirza Zaid Ullah. Mirza Zaid Ullah and Raja Niaz Ahmed want relief only against Mr. Ashraf Kayani, which means that they have no quarrel with the grant of Grade-18 to Mr. Iftikhar Hussain Butt. As for the appeal of Mr. Butt he only wants relief against Mr. Ashraf Kayani relating to the question of seniority.
13. I have heard the learned counsel for the four contesting judicial officers at some length and have been benefited by the valuable assistance rendered by them. Before I take note of the various contentions raised by them, I wish to dispose of a preliminary point, which was raised before the Service Tribunal and was duly repelled and has also been reagitated with great vehemence before me. Mirza Zaid Ullah, Raja Niaz Ahmed and Mr. Iftikhar Hussain Butt have objected to the maintainability of the appeal before the Service Tribunal on the ground that before the Tribunal Mr. Ashraf Kayani had only challenged the order of the High Court and according to them, the appeal should have been dismissed on the short ground that the order passed by the Government on appeal was in fact the final order and it is against this order alone that an appeal could have been lodged in the Tribunal. It was further elaborated that the order passed by the High Court had merged in the order passed by the Government and in case the order of the High Court was to be set aside, the order passed in appeal would still hold the ground because it had not been challenged. As such no effective order could be passed in these circumstances. It was argued that the Service Tribunal had wrongly held that the orders passed by the High Court and the Government were void. The learned counsel for the three appellants Mr. lftikhar Hussain Butt, Raja Niaz Ahmad and Mirza Zaid Ullah raised an alternate plea. Sardar Rafique Mahmood and Mr. Abdul Rashid Abbasi pointed out that under section 4 of the Service Tribunal Act an appeal is provided from an order passed by a departmental authority which is defined to mean an authority which is competent to pass an order. They contended that if the High Court was not empowered to pass the impugned order then it cannot be said about the impugned order that it had been passed by a departmental authority and consequently no appeal against it would be competent. In reply Raja Muhammad Hanif Khan, the learned counsel for Mr. Ashraf Kayani, supported the view taken by the Service Tribunal that the order was void and that the order passed by the Government had been impliedly challenged. On the point of implied challenge he referred me to two unreported cases which have been recently decided by this Court. The cases are titled as Kh. Bashir Ahmed v. Azad Government and FA. Tahir v. Azad Government and others" decided on 8-11-1988. In Kh. Bashir Ahmed"s case the Government order imposing penalty was passed on 16th January: 1979. Review petition against it was dismissed on 14-7-1979 and the appeal in the Service Tribunal was filed on 12th August, 1979. The appeal was dismissed by the Service Tribunal as time-barred on the ground that the appeal before the Service Tribunal had been filed against the order dated 16th January 1979, while order dated 14th July, 1979 passed on review petition had not been challenged. In consequence it was held that the appeal before the Service Tribunal was time- barred as well as incompetent. This Court over ruled the objection by holding as follows:--
"After giving our due consideration to the matter we are of the opinion that it is not necessary in the present case to resolve the proposition as to which of orders would be deemed to be a final order." In the instant case, after giving our due consideration to the arguments raised, we are of the opinion that although the memo. of appeal filed by the appellant is not properly drafted yet indirectly memo. of appeal filed before the Service Tribunal can be safely interpreted to mean that the appellant not only intended to assail the order passed on his review petition, but he did assail the said order by necessary implications. The appellant has specifically mentioned in his memo. of appeal that his review petition which he had filed before the competent authority was also dismissed. The copy of the order of dismissal of the review petition also attached with the memo. of appeal. The order originally passed was affirmed by the order whereby the review petition was dismissed. Thus, it cannot be said that the appeal concealed the order passed on the review petition. It would also be preposterous to suggest that the appellant intended that the order passed on the review petition must remain intact.
It is settled principle of law that clumsy drafting of the pleadings or for that matter a memo of appeal should not stand in the way of the Court to administer justice or to deny relief to an aggrieved person to which he is otherwise entitled. The spirit of the law and justice cannot be sacrificed at the alter of insignificant procedural technicalities. Thus, we hold that the order passed on the review petition filed by the appellant would be deemed to have been challenged by the appellant in his memo of appeal filed before the Service Tribunal."
14. In. FA. Tahir"s case judgment of the Court was also identical. In the present case Mr. Ashraf Kayam did file the appellate order passed by the Government on 2-6-1981 with his memorandum of appeal and also mentioned this order in the body of the appeal. Following the two cases cited above, it will be deemed that order of 2-6-1981 was challenged in the appeal and I hold accordingly. The question of limitation also stands concluded by Kh. Bashir Ahmed"s case as well as another unreported case titled "Azad Government v. Mujahid Hussain Naqvi" decided on 27-3-1983. In Naqvi"s case it was held as follows:----
"So far as the objection regarding the limitation is concerned, the point which clinches the matter is that the respondent, under the provision of section 4 of the Service Tribunal Act, was entitled to file an appeal within 30 days of the dismissal of the petitions. The review petition was dismissed on 25-1-1979 and the appeal before the Service Tribunal was filed on 24-2-1979. The appeal obviously was within limitation."
Consequently I hold that appeal filed by Mr. Ashraf Kayani suffered from no defeat of form or limitation and the preliminary objection is overruled.
15. I now take up the question whether the impugned order passed by the High Court on 12-4-1979 as well the appellate order passed by the Government on 2-6-1981 rejecting respectively the representations and appeal filed by Mr. Ashraf Kayani were void, as has been held by the Tribunal. Although this point was basically dealt with and decided in context of the objection regarding maintainability of the appeal before Service Tribunal but it has relevance to the merits of the cases also. Detailed arguments were addressed on this point but before I can advert to them a fundamental question has to be resolved for reaching proper conclusions.
16. The fundamental question is as to the law, which is applicable for determination of seniority of the four contesting judicial officers. Raja Muhammad Hanif Khan, the learned counsel for Mr. Ashraf Kayani and Mr. Abdul Rashid Abbasi, the learned counsel for Mirza Zaid Ullah and Raja Niaz Ahmed, were of the opinion that subsection (2) of section 30 of the Azad Jammu and Kashmir Courts and Laws Code Act, 1949, commonly known as the Laws Code, and rule 24 of the Kashmir Civil Service Rules (which will be referred to hereinafter as the K.C.S. Rules) were both applicable to judicial officers. On the other hand the view of Sardar Rafique Mahmood Khan, the learned counsel for Mr. Iftikhar Hussain Butt, was that section 30(2) of the Laws Code was the only provision which was applicable. Both these provisions are no longer on the statute book but continue to apply to old and pending cases. It will be useful to reproduce both the provisions though not in extenso.
"Rule 24 of K.C.S. Rules:
(a) The seniority of a person who is subject to those rules has reference to the service, class, category or grade with reference to which the question has arisen. Such seniority shall be determined by the date of his first appointment to such service, class, category or grade, as the case may be.
Note 1. ..........................
Note 2. ..........................
(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 as 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) ........................................................................................................
Section 30(2) of the Laws Code:
"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."
A comparative reading of the two provisions would show that the factors, which determine seniority in the two laws are totally at variance with each other. It is provided in rule 24 that seniority is to be determined by the date of first appointment. On the other hand section 30(2) postulates that seniority will be determined by keeping in view qualifications, efficiency, past experience, honesty B and duration of service under the Government. In rule 24 length of service is the sine qua non for determination of seniority while in section 30(2) length of service is only one of the many factors, which form the basis of seniority. It is thus abundantly clear that the two provisions are mutually destructive and cannot stand together. Therefore, the question that arises is as to which of the two provisions would apply for determination of seniority of judicial officers. In light of the assistance rendered by the learned counsel for the parties I have reached the conclusion that section 30(2) of the Laws Code governs the subject to the total exclusion of rule 24 of the K.C.S. Rules. The reasons which have persuaded me to form this view are as follows:--
(i) K.C.S. Rules is a general law. These rules apply to all services and to all persons in Government service. I say so not only because the provisions contained in the K.C.S. Rules show that these are so worded as to apply to all services but also because it is provided in, louse (b) of rule 1 of the K.C.S. Rules as follows:--------
(b) They shall apply to all services and to all persons appointed to any service before or after the said date except to the extent otherwise expressly provided:--
(i) by or under any law or rules for the time being in force, or
(ii) ........................................................................................................
The abovequoted provision shows that this rule postulates that the rules would apply to all services and all persons in service. It is also clearly provided that if an express provision to the contrary is made by or under any law or rule these rules would not apply. On the other hand section ::as: 30(2) of the Laws Code is a special law which deals only with judicial officers and that also in respect of the question of their seniority only. According to rules of construction of laws if there is a conflict between a special law and a general law the latter has to make room for the former.
(ii) K.C.S. Rules came into force on 1-3-1939, whereas the Laws Code was enacted in 1949. It follows that Laws Code expresses the latter will of the law-maker and it is to prevail in case of conflict between two laws:
(iii) clause (b) .of rule (i) reproduced above itself lays down that in e an express provision to the contrary is made by or under any law these rules will not apply.
17. Having reached the conclusion that section 30(2) of the Laws Code is the provision which deals with seniority of judicial officers, I now pass on to the examination of the view taken by the Service Tribunal that the impugned order of the High Court as well as the order of the Government rejecting the appeal against the High Court order are both void. This point was not taken in the memorandum of appeal filed in the Service Tribunal. It was put forward at the time of arguments for the purpose of meeting an objection, which was raised on behalf of the respondents before the Tribunal that the appeal was time-barred. In reply it was argued on behalf of the appellant that the order of the High Court was without jurisdiction and no limitation runs in respect of such an order. This argument found favour with the Tribunal the respect the Tribunal recorded its opinion in the following words: --
"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 view and only the decision of such seniority 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/HC, dated 12-4-1984 was without jurisdiction."
And then again as follows---------
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 Y- 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."
The Tribunal then went on to hold, in light of the above, the he appeal before it was not time-barred.
18. It is no doubt correct that section 30(2) of the Laws Code in clear terms means that determination of seniority by the High Court would assume legal character only if it carries on it the seal of the Government but it is wrong to think that the Government is the final authority in the matter as the Tribunal has said. If the Tribunal has gathered the impression that the High Court is a recommendatory body then the impression is wrong. The power of determining seniority is vested in the High Court and the Government together and their joint efforts culminate in the final determination. In fact the scale seems to tilt in favour of the High Court when we see that the law provides that the "High Court shall with the approval of the Government determine the seniority of judicial officers." There is a weighty reason for this inference in the fact that it is the High Court which can better judge the efficiency, honesty, of judicial officer. This is so when speaking broadly. Details can be taken care of if any such occasion arises in a properly litigated lis.
19. That being the position of law I fail to appreciate how preparation of a" seniority list by the High Court can be termed as an act without jurisdiction. Preparation of seniority list is an act which is in exercise of the power vested in it by law and to term it as void would not be possible in law. It was contended by Mr. Rafique Mahmood Khan, on behalf of Mr. Iftikhar Hussain Butt, that when an appeal was taken to the Government by Mr. Ashraf Kayani and it was rejected it should be deemed that the Government had accorded its approval to the view taken by the High Court and if there was any defect it had been rectified. It is correct that with the dismissal of the appeal filed by Mr. Ashraf Kayani there is unanimity of views between the High Court and the Government, but in m5- view that does not solve the issue for the reasons I will be presently stating.
20. I see the issue in an entirely different perspective. The appeal before the Service Tribunal was not against an order by which seniority of contesting judicial officers had been determined or against the seniority list. The impugned order passed by the High Court has been reproduced in the opening part of this judgment. What is this order It is information conveying to Mr. Ashraf Kayani the decision that his two representations had been rejected by the Judges. These representations were not in pursuance of some legal provisions. No order was sought to be challenged through them. It is on record that when the first representation was submitted no seniority list had been prepared and when the second was filed it had already been prepared. The list, as stated by the Deputy Registrar, was still with the High Court and could not be submitted to the Government because of the appeal filed in the Tribunal. The appeal was filed against decision which is to the effect that service as Law Drafting Officer could not be tagged. It is nobody"s case that the High Court did not bring under consideration the factors mentioned in section 30(2) of the Laws Code while preparing the list. There is a presumption of truth that the High Court had acted in accordance with law. It is a presumption which will stand unless challenged and duly rebutted. None of these things have so far been done. The list prepared by the High Court becomes final when the Government grants its approval to it and only then it becomes appealable. What I am dealing with is neither the seniority list nor its contents on merits. I am seized of an appeal filed against a decision of the High Court rejecting representations on a limited point. Ate,
21. What then is jurisdictional defect in the order of the High Court A judicial Officer demanded that he may be placed at a particular position in the seniority list prepared by the High Court. The Judges considered the representations and rejected it by giving reasons. Leaving aside the question whether the view taken by the High Court is correct or not I find that there is no defect of jurisdiction. Order of the Service Tribunal holding the order of the High Court was void consequently stands vacated.
22. My view is that the whole exercise was premature" as well as misconceived. The seniority list had not assumed legal shape, as it had not been approved by the Government. The High Court file containing the minute relating to preparation of seniority list was rot before the Service Tribunal. In fact the Tribunal has itself clarified in para. 15 of its judgment that the appeal before it was not against the seniority list. I have doubts whether the order impugned before the Tribunal was a final order so that an appeal could lie against it but I refrain from making further comments because this point was not raised or argued before this Court. Be that as it may, the questions raised before the Service Tribunal and subsequently in the appeal before this Court are limited in nature and cannot have the effect of finally determining the seniority of the contesting judicial officers.
23. Having found that order of the High Court was not void, the question that follows is whether the order was legally correct. I have already held that rule 24 of the K.C.S. Rules is not applicable to judicial officers. Therefore, reference made to it by the High Court is misplaced but nothing turns on it because legality of an order depends on the substance and not the form. The Tribunal has held that Mr. Ashraf Kayani is entitled to the seniority in service from Sub-Judge in NPS-17 from the date of his appointment and not from the date of joining". In reaching this conclusion the Service Tribunal brought under consideration rules 8, 9 and 24 of the K.C.S. Rules and formed the view that seniority begins from the date on which appointment order is issued, irrespective of the date on which the person concerned joins service. Mr. Abdul Rashid Abbasi attacked this finding of the Tribunal mainly on the ground that the length of service was only one of the factors which have to be considered by the High Court in determining the seniority of the judicial officers. He also contested the view of the Tribunal that the first appointment meant the date on which the appointment order is issued and submitted that service is a contract and unless a person joins the post against which he is appointed it cannot be said that a valid contract had come into existence. The learned counsel further contended that an appointment order does not create any right or obligation unless it is acted upon. Sardar Rafique Mahmood Khan, the learned counsel for Mr. Iftikhar Hussain Butt, submitted that rule 24 of the K.C.S. Rules is inconsistent with section 30(2) of the Laws Code and was, therefore, not applicable to judicial officers. His contention was that the basis on which the seniority list had been prepared by the High Court was not before the Service Tribunal because seniority list as such had not been challenged before it. The learned counsel submitted that in view of the point of section 30(2) of the Laws Code the High -Court by the impugned order had rightly rejected the claim of Mr. Ashraf Kayani that his seniority may be counted from the date on which he was appointed as Law Drafting Officer or in the alternative from the date on which his appointment as Sub-Judge had been ordered. He also contended that seniority in any case did not commence from the date of appointment but from the date of joining. In this connection he, inter alia, relied on Article 174 of K.S.R. in which it is provided that service begins when charge of a post is taken. Sardar Rafique Mahmood Khan also contended that the authority which prepared the seniority list was not before the Tribunal which deprived the Tribunal from knowing the details of how seniority as determined by the High Court.
24. There learned counsel for Mr. Kayani during his address agreed that section 30(2) referred to above was basically the law which was applicable to seniority of judicial officers but was of the view that since it does not mention first appointment", we have to fall back on rule 24 of the K.C.S. Rules with the consequence that both the provisions would be applicable lie strongly pleaded in p: support of the view taken by the Service Tribunal that seniority begins from the date of appointment order. I have already, in earlier part of the judgment, analysed the relevant provisions and have formed the opinion that section 30(2) 1 of the Laws Code is the law applicable for determining the seniority of judicial officers. Now the question is whether in light of these provisions the Service Tribunal has rightly given seniority to Mr. Ashraf Ka ani from the date of his first appointment.
25. The term first appointment" does not occur in section 30(2) quoted above. It follows that date of first appointment is irrelevant for the determination of seniority and has been wrongly held by the Service Tribunal to be the determining factor. Section 30(2), already reproduced, lays down the factors which form basis of seniority. There can be no manner of doubt that length of service is one of the factors which have to be brought under consideration for the purpose under reference as is evident from the words duration of service occurring in subsection (2) but it is not the sole determining factor, as has been held by the Service Tribunal. Section 30(2) visualises that there can be cases in which a person before becoming a judicial officer might have been in the Government service and for that provision is made that while determining his seniority the High Court would bring past experience" under consideration and give him due weight. What weight has to be given to this factor has not been provided for in this provision with exactness. How much weight has to be given to past experience" has been left to the discretion of the High Court which, it should go without saying, is manned by Judges of vast experience and judicial training and can be in a position to judge how much useful past experience may prove in performance of judicial functions. Whether or not weight age has been given to Mr. Ashraf Kayani while placing him at a particular position in the seniority list prepared by the High Court is not before this Court, as already noted. What is before this Court is whether the High Court was right in rejecting the claim of Mr. Ashraf Kayani that his seniority may be counted from the date when he was appointed as Law Drafting Officer or at least from the date on which appointment order as Sub-Judge was issued. Since the prayer runs counter to section 30(2) of the Laws Code the order of the High Court impugned before the Service Tribunal was unexceptionable. Despite the fact that reference to rule 24 of K.C.S. Rules in the impugned order was misplaced the conclusion reached by the High Court is the correct view and has to prevail.
26. Another aspect which militates against the view taken by the Service Tribunal is that section 30(2) quoted above applies to judicial officers exclusively and not to other persons in the service of Government. Conversely a person has to be a judicial officer before this provision applies to him. It follows that seniority of a person to whom this provision applies would be considered from the date of which he becomes a judicial officer. Mr. Ashraf Kayani became a Judicial Officer on 11-12-1973 on which date he started functioning as a Sub-Judge and not from the date when the order of appointment was issued. Therefore, the order of the Tribunal giving seniority to Mr. Ashraf Kayani from the date of appointment order is unsustainable.
27. It may also be noted that before the Service Tribunal Mr. Ashraf Kayani in his appeal did not raise any grievance that any point raised by him had been left undecided by the High Court. However, before parting with this aspect of the case I may clarify that I am not layig down that the period spent by Mr. Ashraf Kayani as Law Drafting Officer cannot be considered while determining his seniority. Section 30(2) of the Laws Code lays down past experience as one of the factors to be kept in view while determining seniority, as I have already observed,
28. Now I propose to examine the order of the Service Tribunal by which grant of Grade-18 to Mirza Zaid Ullah and Raja Niaz Ahmad Khan during the pendency of appeal before the Tribunal was set aside and Grade-18 was granted to Mr. Ashraf Kayani. The Tribunal has passed this order as a consequence of its verdict that Raja Ashraf Kayani was senior to the other two judicial officers. Since I have set aside that verdict the consequences shall also stand wiped off. Therefore, the consequential order of the Tribunal is also set aside.
29. Even otherwise the order was not sustainable in law. This order had not been challenged before the Tribunal in one way or the other but the Tribunal felt advised in upsetting the order, as noted above, as a consequence of its verdict that Mr. Ashraf Kayani was senior to the other two judicial officers. The Tribunal based its order on doctrine of lis pendens and on the ground that the Deputy Registrar of the High Court had made a statement that Mirza Zaid Ullah and Raja Niaz Ahmad had been granted Grade-18 on the basis that they were senior to Mr. Ashraf Kayani. I find that both these grounds have no basis. A perusal of the statement shows that it has been misread because the Deputy Registrar did not make the statement attributed to him. I do not find any force in the submission made by the learned counsel for "Mr. Ashraf Kayani that although the Deputy Registrar had not in so many words made the statement attributed to him but he meant it by necessary implication. I find no such thing in the statement of the Deputy Registrar to warrant this inference. As for the other ground lis pendens has no application to service matters as it applied to immovable property. Therefore, both the reasons on which the Tribunal grounded its order have no I basis and the order was, in any case, not sustainable.
30. 1 also find weight in the argument of Sardar Rafiquc Mahmood Khan that the order granting Grade-18 to Mirza Zaidullah and Raja Niaz Ahmad could not be set aside or modified by the Tribunal because no a cal had been filed
against it.
31. If a Tribunal of limited jurisdiction is created for a specified purpose it has to conform to the requirements of the charter which creates it. If the law which creates a Tribunal attaches conditions for the exercise of jurisdiction the Tribunal has to abide by them and if it goes beyond it or exercises powers without fulfilment of the conditions attached to it the action of the Tribunal cannot be sustained. According to the scheme of the Service Tribunal Act, the Tribunal has been given the jurisdiction to act if three conditions are fulfilled: Firstly, there should be a final order regarding the terms and conditions of a civil servant; secondly-, a departmental representation or appeal against the aforesaid final order should have been made to the specified authority not less than 90 days prior to the filing of the appeal and, thirdly, an appeal should be brought before it. If these conditions are not fulfilled the Tribunal does not acquire jurisdiction in the matter. Section 5 of the Service Tribunal Act also unmistakably shows the intention of law that the Tribunal"s jurisdiction is limited to orders against which appeals are brought before it. Section 5 reads as follows:-----
"5(1) A Tribunal may, on appeal, confirm, set aside, vary or modify, the order appealed against.
(2)A Tribunal shall for the purpose of deemed to be appeal be deemed to be a civil Court and shall have the same powers as are vested in the said Court under the Code of Civil Procedure 1908 (Act V of 1908) including the powers of:--
Now the order by which Grad- 18 had been sanctioned in favour of Mirza Zard Ullah and Raja Niaz Ahmad Khan was not challenged before the Tribunal and was not even brought on its record. It is not even known which is the authority which passed this order. No departmental appeal or representation seems to have been filed against this order. It is not known whether this order is permanent in nature or not, since it is not on the record of the Tribunal in the form of a final order. Seen in light of the foregoing it is clear that all the three conditions which were necessary for the exercise of jurisdiction by the Service Tribunal were absent, so far as the record goes. The Service Tribunal does not have the power to act suo motu because the jurisdiction of the Tribunal is dependent on filing of an appeal. In Shahnaz Begum v. Hon"ble Judges of Sind and Baluchistan High Court" P L D 1971 S (" 677 the Supreme Court dealt with an analogous pro-vision contained in Article 98 of the Constitution of Pakistan 1962, and Hamood-urRehman, C.J. speaking for the Court made the following observations:--
"Under this Constitution, a High Court has been given the power of judicial review of executive actions by Article 98 in certain specified circumstances but even in such a case the High Court cannot move suo motu for, it is specifically provided in each of-the sub-clauses (a), (b) and (c) of clauses (2) of Article 98 that only "on the application of an aggrieved party or any person", the High Court may make the orders or issue the directions therein specified. It is, clear, therefore, that under Article 98, there "n co rt fo any suo motu action by the High Court .
32. I may now advert to the submission made by Raja Muhammad Hanif Khan that the order granting Grade-I8 to Mirza Zaid Ullah and Raja Niaz Ahmad was void and it was not necessary to challenge it and the Service Tribunal was competent to order that such order should be ignored. In this connection the learned counsel relied on ",Mst. Fazal Bi and 8 others v. Ghulam Hussain and 4 others" 1980 C L C 789, "Noor Muhammad v. Member, Election Commission, Punjab, Lahore and 2 others 1985 S C M R 1178, Syed Mahmud Alam v. Syed Mehdi Hussain and 2 others P L D 1970 Lah. 6; Muhammad Swaleh and another v. Messrs United Grain & Fodder Agencies P L D 1964 S C 97; Muhammad Rafi v. Government of the. Punjab, Lahore and others 1986 P L C (C.S.) 734; Shamsher Ali Khan v. Commandant Border Military Police, D.G. Khan and another 1984 P L C 759; Province of Punjab through Finance Secretary v. Ramzan Ali and others P L D 1982 S C 349.
33. Before, the Service Tribunal no such plea was taken. During the pendency of the appeal an order was passed which was not brought on the record of the Tribunal. That. it was passed by an authority which was not competent to pass it is only an assumption which is not supported by any material on the record. Even the Tribunal has not held that the order was passed by an authority, which was not competent to pass .it. The mere submission of the learned counsel during the arguments in this Court does not carry legal weight because unless it Is known which is the authority which passed the order the Court cannot proceed further to find out whether that authority had the power to pass that order or not. I also note that in this Court this point was not included in the concise statement filed by Mr. Ashraf Kayani. It, therefore, cannot be raised for the first time during arguments and I order accordingly.
34, Apart from that I may observe that it is dangerous to apply the principle that a void order can be set aside by a Court of law or a Tribunal without regard to other considerations. I may say so with respect to the Service Tribunal that it is not so well-settled as the Tribunal thinks it to be that every void order has to be ignored or set aside. In this connection I may reproduce a passage from the judgment of the Supreme Court of Pakistan in a case reported as Sharif Ahmad Hashmi v. Chairman Screening Committee" 1978 S C M R 367:--
"Additionally I have to observe here that the petitioner assumed in his arguments before us that a Court always struck down a void order regardless of the consequences of its decision. The assumption is a total fallacy, because a void order is only a type of an illegal order. This is described as void because it is so illegal that it does not exist in the eye of the law, but this does not alter the fact that it was passed and by describing it as void Courts cannot alter the fact that the order was passed. And an order which has been passed can create consequences, therefore, there cannot be a hard and fast rule that void order must always be struck down. The true position has been clarified by Munir, C.J., with usual lucidity (1 say so with respect) in Yousaf Ali v. Muhammad Aslam Zia" P L D 1958 S C (Pak) 104, where Munir, C.J., "" observed at page 117:--
"And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognising as legal the changed position, of the parties is in operation, fall to the ground because such orders have as little foundation as the void order on which they are founded."
This passage does not mean that a void order is always to be struck down "regardless of the consequences of such a decision, but that a void order must be struck down provided there is no statute or principle of law, which would make it unjust or inequitable to strike down the void order. This qualification is very important, and that is why, for example. a writ :nay may be refused against a void order if this would enable the petitioner to circumvent the provisions of a statute of limitation. (see this Court"s judgment in Civil Appeals 150 and 166 of 1970 (Jalal-ud-Din and others v. Mst. Noor Sain and others) and Jalal-ud-Din and others v. Shamas-ud-Din and others respectively. Similarly in Ghulam Mohi-ud-Din v. Chief Settlement Commissioner and others P L D 1964 S C 829 a writ petition had been filed against an order which this Court held was void. Nonetheless the writ petition was dismissed on the ground that it was barred by acquiescence on the part of the petitioner. There is also ample authority for the proposition that a writ against a void order may be dismissed if the petitioner is estopped by his conduct from challenging it or if he has been guilty of laches."
35. Appeal in the Service Tribunal was filed against the order" passed by the High Court on 10-4-1979 and it has been held in earlier part of this judgment that the order by which the appeal against this order was rejected by the Government shall be deemed to have also been challenged before the Service Tribunal. No other order was challenged but in the judgment of the Service Tribunal the order issued by the High Court on 17th of February, 1979, granting NPS-18 to Mr. Iftikhar Hussain Butt out of the quota of 15 per cent reserved for Sub-Judges in the higher grade has also been discussed and the Tribunal has held that this order had become final. As to how order came under consideration of the Tribunal needs to be noticed. "
36, The Tribunal has recorded in para. 5 of its judgment the points raised on behalf of the appellant during the hearing of the case. This list does not include any mention of the order of 17th of February. However, in the same paragraph it is stated that the respondents (Mirza Zaid Ullah, Raja Niaz Ahmad and Mr. Iftikhar Hussain Butt) raised the objection that the appeal before the Service Tribunal was not competent because the order dated 17th of February had not been challenged. This shows that according to the record of the Service Tribunal legality of this order was not challenged by Mr. Ashraf Kayani"s counsel but was mentioned for the first time by the respondent"s counsel in order to attack the competency of the appeal before the Service Tribunal. In the concise statement filed m this Court on behalf of Mr. Ashraf Kayani this point has been dealt with in ara. 5(i) in which it is averred as follows:--
"That the learned Service Tribunal fell in error while holding that the appellant has not challenged the order of the High Court dated 17-21979. In fact the appellant did challenge the said order and para. 4 of the memorandum of appeal is referred in this respect but the said para was not taken into consideration by the Service Tribunal ................................ It shows that the stand of the appellant is that the order of 17th of February was challenged in para. 4 of the appeal before the Service Tribunal. Para. 4 aforesaid is as follows:--
"4. By an order of the High Court No. 1225-29/HC/79, dated 17-2-1979 respondent No. 3 was placed in National Pay Scale No. 18 w. e. f. 30-10-1979 treating him as Senior most Sub-Judge in Grade-17. Copy of the order is enclosed as Annexure D"."
A reading of the para. 4 reproduced above shows only that the order was mentioned and its copy was also attached but it does not mean that it was challenged. The record of the Tribunal remains undisputed that this point was raised as a defence to the objection regarding competency of appeal.
37. The Service Tribunal has given two reasons for repelling the verbal prayer for setting aside the order. Firstly, that by this order the beneficiary had been given higher grade through selection and appeal against such order is barred by proviso to section 4 of the Service Tribunal Act, and secondly that Mr. Ashraf Kayani had not filed appeal against this order with the Government and the default in this respect had barred the remedy available to the appellant,
38. I have already set aside in an earlier part of this judgment that order of the Service Tribunal by which it had upset the grant of Grade-18 to Mirza Zaid Ullah and Raja Niaz Ahmad. The reasons recorded by me in that part of the judgment are, mutatis mutandis, applicable to the point in issue now.
39. Apart from that I may add that the mere fact that order of 17th February, 1979, was mentioned in the narration part of appeal filed with the Service Tribunal does not amount to filing of an appeal against it specially when there was no averment relating to this order in the paragraph consisting of grounds of appeal nor indeed a single word was said in disapproval of the order. There was no prayer or mention of this order in the prayer clause. I also endorse the view taken by the Service Tribunal that an appeal against this order was not competent because no departmental appeal had been filed. The case reported as Ikramuddin Syed v. Chief Secretary, Government of Sind" 1979 S C M R 469 cited by Mr. Rafique Mahmood Khan, fortifies this view. Para. 6 of the report may be usefully reproduced:--
"We feel that we need not consider the abovenoted contention because the appeals are liable to be dismissed on different ground.
According to proviso (a) o section 4 of the Sind Service Tribunals Act, 1973 no appeal would lie to the Service Tribunal in a case where an appeal before the departmental authority is provided for, unless the Government servant first files an appeal before such departmental authority, and a period of 90 days has elapsed after filing of such an appeal but no action has been taken. The Service Tribunal was, therefore, justified in dismissing the first appeals filed by the appellants before it. As to the appeal filed by the appellants before the Service Tribunal for the second time, even if it be assumed that the appeals before the Chief Secretary, Sind were filed within the prescribed period of 30 days, they had not filed the appeals before the appropriate departmental authority because as provided at Sr. No. 5 in the Schedule to the Sind Civil Servants Rules, 1975, framed under section 26 of the Sind Civil Service Act, 1973, where the authority making the order is the Chief Secretary the authority competent to hear the appeal or entertain a representation under section 23 of the Sind Civil Servants Act, 1973, is the Chief Minister. In other words, since the appellants had not filed their appeals before the competent authority they could not be said to have fulfilled the condition precedent for filing an appeal under section 4(a) of the Sind Service Tribunals Act, 1973. As such their appeals before the said Tribunal were not competent, and were therefore, liable to be rejected.
Consequently without going into the contentions raised by the appellants" counsel we dismiss the appeal as being without any merit."
40. Another point which puts the matter beyond doubt is that order under reference was passed on 17-2-1979 and the appeal with the Service Tribunal was filed on 25-6-1981. The period of limitation being thirty days, an appeal after 2 years and four months in any case would have been hopelessly time-barred.
41. It was contended before me by Raja Muhammad Hanif Khan. the learned counsel for Mr. Ashraf Kayani that order dated 17-2-1979 was void and should have been set aside by the Tribunal on that score. In this respect he referred to the same authorities which he had cited while arguing that the order granting Grade-18 to Mirza Zaid Ullah and Raja Niaz Ahmad was void. I have recorded my views on this subject while dealing with a similar argument regarding the order granting Grade-18 to Mirza Zaid Ullah and Raja Niaz Ahmad. Those observations are fully applicable to the argument. I am dealing with now, with one exception. The exception is that unlike the other order the present one is on the file although the copy is unattested. The order has been issued by the Registrar and it is stated in it that it has been issued By Order". Being an official act, there is a presumption that it has been regularly performed and there is nothing on record to show that sanction of the authority competent to grant it was not obtained.
42. As already held by me, the Tribunal can set aside or modify an order if an appeal is filed against it. In the ultimate anal sis I reject the prayer that order of 17th February may be set aside.
43. The Service Tribunal has held that the period which Mirza Zaid Ullah spent as Registrar of the High Court could not be counted towards his seniority and the High Court had wrongly given him the benefit of this disputed period. The basis on which the Service Tribunal proceeded to give decision as aforesaid are that the post of Registrar was advertised distinctly" from the vacancies of Sub-Judges by the Public Service Commission and that during the selection for these posts the candidates were separately considered.
44. As the facts are, Mirza Zaid Ullah was the sole candidate who applied for the post of Registrar of the High Court while for a few posts of Sub-Judges which were also simultaneously advertised by the Public Service Commission the number of candidates was more than the vacancies which existed at that time. The Service Tribunal has held that the post of Registrar was not one of the posts borne on the cadre of Sub-Judges and that there was no order of Government nor is there a rule to the effect that the posts of Sub-Judges and Registrar were borne on a common cadre.
45. Before me the learned counsel for Mirza Zaid Ullah took exception to the view of the Service Tribunal and strongly pleaded that the Service Tribunal fell in error in coming to the conclusion indicated above. According to the learned counsel, the Tribunal itself has held that if there is a rule to the effect that the posts of Sub-Judge and Registrar are in common cadre then service rendered as Registrar of the High Court would count towards seniority as Sub-Judge. He argued that such a legal provision did exist at the relevant time in shape of section 12 of the Laws Code which runs as follows:--
"(1) The High Court shall exercise all administrative powers regarding direct gazetted appointments, salaries, promotions, transfers, reversions and dismissal in the Azad Jammu and Kashmir Judicial service including Registrar and Deputy Registrar .......................
Relying on this provision the learned counsel contended that section 12 reproduced above declares that the post of Registrar is a post in judicial service and argued that the Service Tribunal drew wrong conclusion because it failed to notice this provision. He further contended that when rule 24 of the K.C.S. Rules lays down that "the seniority of a person who is subject to these rules has reference to the service, class, category or grade with reference to which the question has arisen", it distinctly refers to persons in the same service and since the Registrar of the High Court has been included in judicial service inter se, seniority of the Sub-Judges and the Registrar of the High Court shall be determined according to rule 24 from the date of joining. He also contended that rule 8 of the K.C.S. Rules was not applicable to the persons in judicial service as is provided in the note appended to that rule.
46. The learned counsel for Mr. Ashraf Kayani, however, submitted that the meaning attributed to section 12 of the Laws Code by the learned counsel for Mr. Zaid Ullah was not the correct interpretation of that section. His contention was that in this section posts of Registrar and Deputy Registrar are mentioned separately from judicial service which means that the two posts do not belong to that service. He contended that the post of Registrar has no connection whatsoever with the cadre of Sub-Judges and that is the reason why, according to him, the post of Registrar of the High Court was advertised by the Public Service Commission separately and a different announcement was made in respect of the posts of Sub-Judges although all the posts were advertised together.
47. In his right of rebuttal the counsel for Mr. Zaid Ullah submitted that the expression including" is used when it is intended to enlarge the meaning of a particular word and is not intended to segregate the two categories which are mentioned in that provision. He submitted that according to the established rules of interpretation when the word including" is used it necessarily means that even if a particular connotation is not carried in respect of a certain word or phrase, the use of the word "including" brings it within its ambit. In this connection he relied on Malik Muhammad Saleem and another v. Commissioner, Rawalpindi Division, Rawalpindi and 3 others" P L D 1976 Lah. 1233, Mst. Manzoor Jahan Begum and others v. Haji Hussain Bakhsh P L D 1966 S C 375 and Messrs Usmania Glass Sheet Factory Limited, Chittagong v. Sales Tax Officer; Chittagong P L D 1971 S C 205.
48. I have already held that the seniority of a judicial officer is not dependent on mere length of service but in case of Mirza Zaid Ullah it is necessary to determine from what date he became a judicial officer because before the seniority of a judicial officer is determined by the High Court in light of the provisions of section 30(2) of the Laws Code, it has to be proved that a person had become a judicial officer so that the above referred provision may become applicable to him. The meaning of section 12 referred to above is, in my opinion, clear. It is an accepted rule that the word including" is used to enlarge the scope of a word or term. The category which precedes this word brings within its mischief the category which follows it even if it is not so otherwise. Therefore, the words judicial service including Registrar clearly connote that post of Registrar would be considered to be one belonging to the judicial service. In this connection the authorities cited by the learned counsel for Mirza Zaid Ullah fully support him. No authority to the contrary has been brought to my notice.
49. The argument of Raja Muhammad Hanif Khan, the learned counsel for Mr. Ashraf Kayani, that the posts of Sub-Judge and Registrar of the High Court were separately advertised by the Public Service Commission and that selection for the two types of posts was also conducted separately, appears to be on the face of it attractive but a deeper examination shows that it has no weight. The position should have been clear to the requisitioning department as well as the Public Service Commission that the post of Registrar was also included in judicial service but it appears that they mistook the position. However, this does not change the legal position because if the requisitioning authority or the Selection Authority were possibly under the impression that the post of Registrar is not included in judicial service it would not change the legal position. It would still remain to be as is provided in section 12 of the Laws Code. 1, therefore, hold that Mirza Zaid Ullah became member of judicial service when he joined as Registrar of the High Court and his length of service which is one of the factors for determination of seniority, would include the period spent by him as Registrar of the High Court. Consequently I set aside that part of the judgment of the Service Tribunal by which the period of Mirza Zaid Ullah"s incumbency of the post of Registrar of the High Court was excluded from his length of service and he was consequently declared junior to Mr. Ashraf Kayani. I may pause here and add that section 30(2) of the Laws Code appears to be a legislation of somewhat unusual nature. Normally the seniority of a person in Government service is fixed on the basis of length of service while qualifications, past experience and some other factors are taken into consideration at the time of recruitment. Other factors mentioned in this provision of law, for instance, honesty and efficiency are considered at the time of promotion. But the provision in hand has made all these factors to be the basis of seniority. However, the will of the law-maker has to prevail and the Courts, being the creation of law, cannot arrogate to themselves the functions which are entrusted to the law-maker or to question the wisdom of law. As it is the law as enacted by the law-maker which in the present context is section 30(2) of the Laws Code has to be administered for the determination of the seniority of judicial officers.
50. Another point mooted with great vehemence before the Service Tribunal and also in this Court is that Mr. Iftikhar Hussain Butt, Mirza Zaid Ullah and Raja Niaz Ahmad Khan could not be confirmed as Sub-Judges with effect from the date on which they assumed charge as Additional Sub-Judges as ad hoc appointees. The objection was that the order by which retrospective confirmation had been granted as aforesaid was without jurisdiction as ad hoc service cannot be counted towards seniority. It was contended that the recommendations of the Public Service Commission were prospective and not retrospective, therefore, order of confirmation of the three judicial officers mentioned above was illegal. The point was obviously contested by the three respondents and it appears from the judgment of the Service Tribunal that lengthy arguments were addressed during which a large number of decided cases were also cited. The Tribunal repelled this contention. The Tribunal based its decision in this respect on rule 15 of the K.C.S. Rules which reads as follows:--
"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."
"(Such person" in this rule has reference to a temporary servant as visualized in rule 14 which was the equivalent of what now is called an ad hoc appointee).
51. The Tribunal gave the verdict that 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 could be even the date of ad hoc appointment. In the words of the Tribunal "so it is held that the confirmation of the respondents, in service, from 9-9-1973 suffers from no legal defect." Before me detailed arguments were addressed for an against the proposition. Raja Muhammad Hanif Khan, firstly, submitted that it is wrongly stated in the order of confirmation passed on 8-6-1974, which has been reproduced in the opening part of this judgment that the appointment of the judicial officers mentioned m this order had been approved by the Public Service Commission with retrospective effect. He contended that presumption of truth in the circumstances of the case is not attached to this order in view of the facts connected therewith and relied on Ch. Noor Hussain v. The State" 1983 P Cr. L J 796, a case decided by this Court. The learned counsel contended that the file relating to confirmation was summoned by the Service Tribunal but the Government did not produce it and the conclusion which, according to the learned counsel, follows is that it will be presumed, as has been provided in section 114(g) of the Evidence Act, that-if the file had been produced its contents would have gone against the Government. In this connection he relied on Sheikh Muhammad Obaid v. Muhammad Rafi Qureshi P L D 1962 Kar.409, Gulzar Ahmed v. Sind Punjab Goods Transport Co., P L D 1966 (W.P.) K. 253, Sh. Azizur-Rehman and another v. Bahawalnagar Co-operative Commission Shop Ltd. and others P L D 1962 B J 20 and Miss Shahgufta Ranaa v. Secretary-General, Ministry of Defence, Aviation Division, Rawalpindi. Raja Muhammad Hanif Khan contended that the Service Tribunal had not correctly read the relevant law because according to him rule 15 of the K.C.S. Rules had no application to the matters of confirmation and the provision of law which was applicable was contained in rules 20 and 22 of the said Rules. He also submitted that rule 23 was equally irrelevant because this provision applies to persons who are appointed substantively and not to ad hoc appointees. He contended that when rule 23 provides that a probationer may be appointed with retrospective effect from the date from which he was continuously on duty as member of the service it does not refer to duty as ad hoc appointee but duty as a probationer which status is only attained by the Government Servant when he is regularly appointed to hold a post. In order to support his contention that period spent as all ad hoc appointee cannot be treated for the purposes of seniority, Raja Muhammad Hanif relied on Zain Khan Khalil and 2 others v. Government of N-W.F.P. through Chief Secretary and others P L D 1982 S C 104, Muhammad Afzal Suhail v, Government of Punjab and others 1983 S C M R 859, Abdul Ghani v. Secretary, Information, Government of Pakistan 1980 P L C (C.S.) 548 and Ghulan: Qadir Khan v. Azad Government J & K through Chief Secretary and two others 1979 P L C (C.S.T.) 78.x,
52. Sardar Rafique Mahmood Khan did riot contest the contention of Raja Muhammad Hanif Khan that the Public Service Commission had not recommended to the Government that the three judicial officers may be confirmed from .the date of their ad hoc appointment and submitted that in fact the Public Service Commission was ",not authorised to make such a recommendation. According to him it is only the Government which has the authority to confirm a person in service from one date or the other. Sardar Rafique Mahmood Khan took me through the order of confirmation to show that it was not stated in the order that the date of confirmation given in it was being fixed on the recommendation of the Public Service Commission. The order only shows that the Government had accepted the recommendations of the. Commission for appointment of the judicial officers mentioned therein against the posts shown against their names. The learned counsel strongly supported the view taken by the Service Tribunal that the Government had the power to confirm persons in Government service from the date on which they started functioning as such even as ad hoc appointees and relied on Muhammad Naseem Ahmad v. Central Board of Revenue and another 1975 S C M R 505, Muhammad Naseem Ahmad v. Azra Feroz Bakht P L D 1968 S C 37 and Muhammad Siddiq v. Secretary Education, Government of Baluchistan and others 1979 S C M R 139 in support of his contention in addition to rules 15 and 23 of the K.C.S. Rules.
53. Mr. Abdul Rashid Abbasi, the learned counsel for Mr. Zaid Ullah and Raja Niaz Ahmad, also supported the verdict of the Service Tribunal on this point. He submitted that there is an authoritative judgment of the Supreme Court of Pakistan on this point and the matter may be treated as concluded by it. The learned counsel relied on the following passage from the judgment Nasim Ahmad v. Miss Azra Feroz Bakht and 58 others P L D 1968 S C 37:--
"This sufficiently indicates, as contended on behalf of the promotees that there is no rule or practice of general application with regard to confirmations and that Government has reserved to itself the right to determine how, when, in what manner and with effect from what date confirmations will be made. There is also no unreasonableness in this, for it is only the employer who can say when a probationer is to be considered to have become fit for permanent retention according to his requirements and until then the probationer can have no lien to or right of retention in the service. But all other conditions being fulfilled confirmation can and does in most cases relate back to the date of original induction into service."
The order of confirmation of Mr. Iftikhar Hussain Butt, Mirza Zaid Ullah and Raja Niaz Ahmed was issued on 8th of June, 1975 and it was incorporated in it that the confirmation of the aforesaid officers shall take effect from 9-9-1973 which is the date/on which they had been appointed on ad hoc basis. It shows that the period during which the three contesting judicial officers acted as ad hoc basics. it shows that the period during which the had during which the three contesting judicial officer acted as ad hoc appointees was clearly included for the purpose of confirmation . On the date when this order was issued Mr. Kayani had already joined judicial service and was "working as a judicial officer. ;If length of service was the only factor for determination of seniority this order clearly made the three aforesaid judicial officers senior to Mr. Ashraf Kayani who was aggrieved by this order as is evident senior the representations he submitted to the High Court on 5-11-1978 and 15-3-1979 as also the appeal filed by him in the Service Tribunal. What he is attempting to achieve through: this litigation is that the period spent by the three judicial officers as ad hoc appointees may not be treated towards their seniority.
For this purpose he is attacking the retrospectively given to the date of confirmation by the order of 8th June, 1975. However, the insurmountable hurdle in his way is that this order was not challenged by him for more or less than 5 years. When this order was issued "Mr. Ashraf Kayani had joined the judicial service. The order was to his detriment because, if seniority was to be determined on the basis of length of service ; lone, the question of Mr. Ashraf Kayani becoming senior to the other contesting judicial officers did not arise if this order was to hold the field. But Mr. Ashraf Kayani does not seem to have taken any step to seek his remedy at the proper" time. The High Court had been conferred the power to issue writs in 1971. A civil suit was also maintainable. Then again in 1975 another opportunity came by when the Azad Jammu and Kashmir Service Tribunal Act was enacted on the 16th of December, 1975 in order to provide speedy and effective remedy to civil servants. Section 4 of the Act made a specific provision that civil servants could prefer appeals to the Service Tribunal within 6 months of its establishment under the Act. The only embargo was that an appeal could not be filed against an order or decision of a departmental authority made before the 1st of July, 1969. No other remedy, if available, seems to have been availed by him. The consequence is that the order had attained finality years before the filing of appeal in the Service Tribunal and no remedy now lies against it and I hold accordingly.
Before parting with the appeals I have to dispose of another point which was subject-matter of dispute between the three judicial officers on the one hand and Mr. Ashraf Kayani on the other. When the three judicial officers who were respondents before the Service Tribunal filed their written statements a legal point was raised by them that Mr. Ashraf Kayani had not been approved by the Public Service Commission for the post of Sub-Judge and his appointment as Sub-Judge was in fact probationary not having been confirmed till then. While dealing with this aspect of the case the Service Tribunal held that since Mr. Ashraf Kayani had been holding the post of Law Drafting Officer on the basis of regular appointment and was transferred from that post to judicial service no approval of the Public Service Commission for appointment of Sub-Judge was required. The Tribunal brought under consideration section 7(2) of the Public Service Commission Ordinance and Rules 3 and 6 made thereunder. This point was again reagitated and argued before me. The objection to the verdict given by the Tribunal on this point was that the provision of law which was relied upon by the Tribunal while overruling this objection had not come into existence when Mr. Ashraf Kayani was appointed as Sub-Judge in 1973. The second objection raised was that it was not an appointment by transfer as held by the Tribunal because Mr. Ashraf Kayani had been appointed Law Drafting Officer by the Government while the power of appointing a Sub-Judge was vested in the Chief Justice of the High Court by-virtue of rule 37 of the Rules of Business of 1971, which provision of law, as is admitted between the parties, superseded all other laws on the subject. Argument was that the appointment of Mr. Ashraf Kayani as Law Drafting Officer had been made by the Government on the advice of the Public Service Commission but the Government was not the authority which appointed him as Sub-Judge as the order of his appointment was made by the Chief Justice. Therefore, it was not a case of transfer and was in fact a case of new appointment. This argument was supported with the additional reason that the Government took a long time in relieving Mr. Ashraf Kayani from the department when he was appointed as Sub-Judge..
My view is that if any person in service thought that Mr. Ashraf Kayani
needed approval by the Public Service Commission for the post of Sub-Judge and that his continuing to function as Sub-Judge without approval of the Public Service Commission operated against his interests he could have taken proper proceedings in this respect. The scheme of Service Tribunal Act does not, in my view, valise that such matters may be raised by way of objection as is the present situation. If there is grievance which touches adversely the terms and conditions of a person in service he has to represent against it at the proper time 7 D and to file an appeal before the Service Tribunal in the prescribed manner. Since no such thing has been done I hold that the matter cannot be challenged now in the manner adopted by objecting judicial officers.
I wish to record my appreciation for the valuable assistance rendered by learned counsel for the parties. Mr. Abdul Rashid Abbasi, Raja Muhammad Hanif Khan and Sardar Rafique Mahmood Khan. I may also add that some of the cases cited by them do not find mention in the judgment because although I found them useful but they became besides the point m light of the views I have formed of different legal issues.
The upshot of the foregoing is that:--
(A) Civil Appeal No. 22 of 1986 "Raja Muhammad Ashraf Kayani v. The Azad Jammu and Kashmir Government and 4 others" is dismissed.
(B) Civil Appeal No. 23 of 1986 "Mirza Zaid Ullah and another v. Raja Muhammad Ashraf Kayani and three others" is accepted and the following orders of the Service Tribunal forming part of the judgment under appeal are set aside, namely, Orders:--
(i) declaring respondent No. 1 Mr. Ashraf Kayani senior to the appellants Mirza Zaid Ullah and Raja Niaz Ahmad Khan; and
(ii) granting NPS-18 to the said respondent w.e.f. 17-11-194 3riC consequential adjustment. ,, _ _
(C) Civil Appeal No. 24 of 1986 "Kh. Iftikhar Hussain Butt v, Mr. Muhammad Ashraf Kayani and 4 others" is accepted so that the following orders of the Service Tribunal shall stand vacated:-- -
(i) that respondent No. 1 Mr. Ashraf Kayani was senior to the appellant Kh. Iftikhar Hussain Butt; and
(ii) grant of NPS-18 to the said respondent w.e.f. 17-11-1984. -(D)Status quo ante as it existed before judgment under appeal shall be restored.
Since the state of law regarding seniority of judicial officers was uncertain when litigation started I think that the ends of justice will be served i" the parties are left to bear their own costs throughout.
M.BA./258/A.J.K. Order accordingly.
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