1993 PLP (C (PLC(CS))

SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN): ‑‑This is an appeal by Arshad Mahmood, Tehsildar, Tehsil Samahni, District Mirpur against the order dated 25‑10‑1989 made by the Secretary, Revenue Department (respondent No. 2) and the seniority list which is published under that order by which respondents Nos. 3 to 14 were declared senior to the appellant as Naib‑Tehsildars. The appellant has impleaded Azad Government through Chief Secretary, Secretary, Revenue Department, Said‑uz‑Zaman, Kh. Pervaiz Ahmad, Malik Muhammad Siddique, Raja Muhammad Siddique, Muhammad Suleman, Muhammad Azim, Ghulam Nabi Mir, Saleem Akhtar, Syed Muhammad Abbas, Syed Imtiaz Hussain Shah, Raja Shafique Ahmad and Malik Naeem Tariq as respondents for seeking his relief against them.

2. In the memo. of his appeal, it is stated by the appellant that he was appointed as Naib‑Tehsildar by order dated 14‑10‑1975 and at the relevant time of his appointment he was a Graduate from the University of the Punjab and had also completed the training of Naib‑Tehsildar. Because of his best performance in the Department, he was subsequently promoted as Tehsildar and was functioning as such in Tehsil Samahni, District Mirpur. A temporary seniority list was prepared and published by the Revenue Department in the year 1979 and after having received the objections from the appellant and the respondents a final seniority list of Naib‑Tehsildars was prepared in the year 1985 and published on 5‑2‑1986 for the information of all Naib‑Tehsildars working in the Revenue Department. The entries of this seniority list were also challenged by Saleem Akhtar respondent No. 10 before the Secretary, Revenue Department after the passing of period of one year i.e. in the month of March, 1986 and this appeal remained pending before the Secretary, Revenue till 25th of October, 1989. In the seniority list published on 5‑2‑1986, the appellant was shown at serial No. 6, respondent Saleem Akhtar at serial No. 16, Raja Muhammad Siddique at serial No. 11, Malik Muhammad Siddique at serial No. 10, Said‑uz‑Zaman at serial No. 17, Muhammad Suleman at serial No. 12, Kh. Pervaiz at serial No. 9, Muhammad Azim at serial No. 14 and Ghulam Nabi Meer at serial No.

15. On the basis of his seniority and necessary qualifications, the appellant was promoted as Tehsildar and the order of his promotion was never challenged before any Authority by the respondents Nos.3 to

10. But under the impugned order the appeal filed by Saleem Akhtar, Naib‑Tehsildar was accepted and the respondents Nos. 3 to 10 were declared as senior to the appellant. The order of respondent No. 2 was neither communicated to the appellant nor it was addressed to the appellant to go to him for his information. It was on 6‑12‑1989 that the appellant visited the office of Secretary, Revenue Department for some official business and after having come to know about the decision taken by him on the appeal of Saleem Akhtar, the appellant applied for a copy of the order and the same was issued to him on 6‑12‑1989. It is claimed by the appellant that the appeal brought by him at this forum is within time from the date of his knowledge. In support of his assertion, the appellant has filed an affidavit and has also requested this Tribunal that the period wasted by him because of non‑communication of the order to him may be condoned in his favour. The appellant seeks reversal of the impugned order on the following grounds:‑‑ (a) that no appeal was brought against the order of his appointment dated 14‑10‑1975 and as such the order had become final and the Secretary, Revenue Department (respondent No. 2) was not .competent to alter, amend and make any variation in the order for the purpose of fixation of his seniority. Hence the impugned order is liable to be set aside for being contrary to the law and facts; (b) that the respondents were never selected as Naib‑Tehsildars through any competitive examination nor any merit list was drawn up by the competent Authority for the determination of their seniority. But the respondent No. 2 without looking into the record and without cogent reasons determined the inter se seniority of the appellant and that of respondents on the basis of the date of candidature for appointment to the post of Naib‑Tehsildar and ignored the date when the appellant and respondents were actually inducted in office of Naib‑Tehsildar; (c) that under the provisions of K.S.R. and the relevant rules, the inter se seniority of the civil servants is to be reckoned and determined from the date such servant is appointed and treated as civil servant. But in the present case, the respondents were given the dates of seniority when they were not actually appointed as civil servants. Hence the impugned order is liable to be set aside; (d) that on appeal preferred by Said‑uz‑Zaman, Naib‑Tehsildar against the appellant and 17 other Naib‑Tehsildars, this Tribunal had dismissed the appeal after recording its findings to the effect that the respondent No. 5 was not entitled to any claim of seniority or the preference to be given to him on the basis of his date of candidature or the service against an ex cadre post in some other Departments. But the respondent No. 2 failed to go through the relevant record of service of the respondents at the time of determining their inter se seniority and had made the impugned order in violation of the finding of this Tribunal. The impugned order is, therefore, not maintainable; (e) that there is nothing on the record that the persons shown as candidates to the posts of Naib‑Tehsildars submitted their claim to be appointed as Naib‑Tehsildar earlier than the appellant and they were ignored. In fact the appellant has been deprived of his legitimate right of seniority under the impugned order which may be reversed for being unjust and unfair; (f) that the respondent No. 2 while making the impugned order has also accepted this principle of law that the persons appointed against ex cadre posts cannot claim the period of service spent against that post to be counted towards their seniority in the Revenue Department. But at the same time he has permitted some of the respondents to be placed senior despite the fact that the‑period spent by them against ex- cadre post was not countable towards their seniority in the cadre of Naib‑Tehsildars.

3. The above appeal was admitted for regular hearing by a short order of this Tribunal dated 22‑3‑1990 and the respondents were asked to file their objections, if any. The appeal was contested by respondents Nos. 1, 2, 7, 8, 10 and

12. On behalf of respondents Nos. 1 and 2, it is submitted that the promotion of the appellant was ordered on temporary basis and that a copy of the impugned order was sent to him for his information under No. 7054‑71, dated 25‑10‑1989. On behalf of respondents Nos. 7, 8, 10 and 12 it is submitted that the appellant is not an aggrieved civil servant and the appeal is not maintainable for being time‑barred. The appellant was not senior to the respondents and the seniority fixed under the impugned order was correct. The seniority list was challenged by Saleem Akhtar quite well in time because he was senior most Naib‑Tehsildar among the persons directly recruited for such service.

4. We have considered the arguments as were addressed‑by the learned counsel of each party. We have also examined the contents of appeal and the impugned order made by the Secretary, Revenue Department. On behalf of the appellant, the arguments 'were mostly addressed on the same points as were placed in the grounds of appeal. It is established from the record that the appellant was directly recruited as Naib‑Tehsildar on 14‑10‑1975 and it was for this reason that the order of his appointment was not challenged by any other officer of the Department. An appeal was definitely not competent against his appointment but the question of fixation of his inter se seniority in the regular cadre of Naib‑Tehsildars was to be resolved after the preparation of merit list of the members of Naib‑Tehsildari service. But the merit list having not been prepared a seniority list was drawn up in the cadre of Naib‑Tehsildars and against an adverse entry in the list each of them held a right of appeal before the next higher authority. The seniority list for the year 1985 was published on 5‑2‑1986 and Mr. Saleem Akhtar, Naib‑Tehsildar was quite competent to challenge the entries of that seniority list which were adversely affecting this right of seniority and the Secretary, Revenue Department was also competent to alter, amend and make any variation in the seniority list impugned before him.

5. According to the seniority list, prepared under the impugned order of Secretary, Revenue, we find that the appellant was inducted in office of Naib -Tehsildar as early as on 14‑10‑1975 but he was deprived of his seniority because he was allowed to join as Naib‑Tehsildar out of his turn on the occurrence of a vacancy which was to be filled up by another candidate on the approved list senior to the appellant. The Secretary, Revenue Department was of the view that the vacancy of Naib‑Tehsildar should have gone to the senior person placed in the register of approved candidates and since. the appellant had snatched away the right of that other person to join the service of the Naib‑Tehsildar, he must not be given seniority over that other person. We are afraid, we cannot contribute to ‑this view that the person joining the service of the Department on a particular date should be denied his seniority for the simple reason that another person among the approved candidates was to be appointed against the vacancy of Naib‑Tehsildar for being senior to the appellant and since the appellant deprived the right of service of that other person, he must not be allowed seniority from the date of joining the service of the Department. It is true that under Azad Jammu and Kashmir Revenue Officers Rules, 1970, the inter se seniority of Naib‑Tehsildars was to be prepared and determined after examining the merit list. But unfortunately no merit list was prepared by the Revenue Commissioner after holding competitive examination of the persons employed as Naib‑Tehsildars. In absence of merit list some alternate course of action should have been suggested for regulating the inter se seniority of Naib‑Tehsildars in the regular cadre. In the given circumstances, we are left with no remedy except to allow the seniority being fixed. in accordance with the general principle of seniority i.e. in respect of members of Naib‑Tehsildari service the seniority shall have to be determined w.e.f. the date of their entry in service in the regular cadre by such members. It shall be noted here that without a service contract the inter se seniority in respect the members of a service cannot be regulated.

6. We have seen the relevant judgment entitled Said‑uz‑Zaman v. Mahboob Arshad and 17 others copy of which is placed on the file. It is not true that in the said appeal, the matter regarding determination of inter se seniority in the regular cadre of Naib‑Tehsildars was brought under discussion and this Tribunal had given its finding in favour of the appellant Said‑uz- Zaman to the effect that the period of service spent by some of the respondents against ex‑cadre post was condonable towards their seniority in the regular cadre of Naib‑Tehsildars Service set up under the control of Revenue Department. As a matter of fact, the appeal of Said‑uz‑Zaman before this Tribunal involved different questions of law and facts. Through that appeal, the appellant had sought for the relief to the effect that the date of his appointment as Sadder Mohasib should be treated as the date of his appointment as Naib‑Tehsildar and his seniority be determined from that date. But this prayer of the appellant was not accepted and his appeal was also dismissed.

7. We agree with this argument of the appellant's counsel that the Secretary, Revenue Department (respondent No. 2) has been blowing hot and cold in the same breath while making the impugned order. In some cases he has permitted service of the respondents to be counted towards seniority even if the respondents had not actually joined the service of the Revenue Department while he also disallowed the service against ex cadre post by some of the respondents to be counted as Naib‑Tehsildari service for the purposes of fixing their inter se seniority in the regular cadre.

8. After comparing the entries recorded in the seniority list for the year 1985 with those of amended seniority list 1988‑89 made under the impugned order of Secretary, Revenue Department, we have arrived at this conclusion that the appellant Arshad Mahboob for having joined the service of Naib -Tehsildar on 14‑10‑1975 was the senior most Naib‑Tehsildar than the respondents Nos. 3 to 14 and the order of their seniority according to the date of entry of service as Naib‑Tehsildar in regular cadre shall be as follows:‑‑

1. Arshad Mahboob. 14‑10‑1975

2. Kh. Pervaiz Ahmad 4‑12‑1975

3. Malik Siddique. 23‑2‑1976

4. Raja Muhammad Siddique 25‑2‑1976

5. Muhammad Suleman 4‑3‑1976

6. Muhammad Azim 21‑5‑1977

7. Ghulam Nabi Mir 30‑5‑197'7

8. Saleem Akhtar 9‑6‑1977

9. Raja Shafique Ahmad 9‑10‑1977

10. Syed Muhammad Abbas 12‑4‑1979

11. Malik Naeem Tariq 25‑3‑1980

12. Syed Imtiaz Hussain Kazami There is no denying the fact that the present appellant Arshad Mahboob was one of the respondents in appeal brought by Saleem Akhtar before Secretary, Revenue Department. There is nothing on the file of Saleem Akhtar to show that the present appellant had submitted his objections against the appeal of Saleem Akhtar before the Secretary, Revenue Department but this fact is well‑established from the record that he was one of the respondents in that appeal and his seniority was also discussed in the impugned order by the Secretary, Revenue Department. It is asserted by the respondents that the copy of impugned order was sent to the appellant for his information under No. 7054‑71, dated 25‑10‑1979 but no record has been produced to that effect on the appeal file. Therefore, we are not in a position to conclude that the letter meant for the information of the present appellant was actually delivered to him and on what date it was delivered to him. The appellant's claim is that he was never informed about the issuance of impugned order by the Secretary, Revenue Department and he got the knowledge of that order on 6‑12‑1989 when he had visited the Office of Secretary, Revenue Department in connection with some official business. The appellant has submitted an affidavit also in support of his contention that the impugned order was not conveyed to him. Since there is no counter‑affidavit to controvert the claim of the appellant, we feel ourselves inclined that the appellant's appeal should be allowed w.e.f. the date of his knowledge of the impugned order and that the period wasted because of non‑communication of that order be condoned. Hence the objection of the respondents that the appeal is time‑barred is devoid of force and the same is brushed aside. We are also clear on this point that the seniority of the appellant was disturbed under the impugned order by the Secretary, Revenue Department and because of that, the appellant is definitely an aggrieved civil servant. The objection of the respondents brought against the appellant that he was not an aggrieved civil servant is not maintainable and the same is also repelled.

9. For the above reasons, we allow this appeal and declare the appellant senior to all the respondents Nos. 3 to

14. No order as to the costs. AA./192/SrA Appeal accepted.