1993 PLP (C (PLC(CS))

SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN).‑‑ This is an appeal by Syed Aftab Hussain Gardazi, Tehsildar, Settlement, Rawalakot by which he has impugned the order of Secretary, Revenue Department dated 25‑10‑1989. In this appeal the appellant has impleaded Azad Government of the State of Jammu and Kashmir through Chief Secretary Raja Muhammad Siddique, Malik Muhammad Siddique, Muhammad Sulaiman, Kh. Pervaiz, Raja Muhammad Azam Khan, Ghulam Nabi Mir, Syed Muhammad Abbas, Syed Imtiaz Hussain Shah, Raja Shafique Ahmad Khan, Malik Naeem Tariq and Raja Abdul Rashid Naib‑Tehsildars as respondents for seeking his relief against them.

2. It is stated by the appellant that he was appointed as Girdawar in the service of Revenue Department of Azad Kashmir Government on 16‑9‑1966 and was later on promoted as Naib‑Tehsildar on 28‑9‑1978 thereafter he was again promoted as Tehsildar and at the present he was posted as Tehsildar Settlement at Rawalakot. The respondents Nos.3 to 15 were also appointed and promoted as Naib‑Tehsildars long after the date of promotion of the appellant as Naib‑Tehsildar. The inter se seniority of the appellant and that of respondents Nos.3 to 15 was determined by the Department and a final seniority list was published in the year 1985. According to this final seniority, list issued in the year 1985 the name of the appellant was placed at Serial No.8 and with the exception of Abdul Hamid and Abdul Samad all other respondents were placed junior to the appellant. Among the respondents, Salim Akhtar preferred an. appeal before the Secretary, Revenue Department somewhere in the year 1986 and under the impugned order, the Secretary, Revenue Department declared respondents Nos.3 to 15 as senior to the appellant and on the basis of that order issued a fresh seniority list in which the name of the ‑appellant was placed at serial No.17 instead of serial No.8. The above order was made by the Secretary, Revenue Department behind the back of the appellant because he was not a party in the appeal of Salim Akhtar (respondent) nor the impugned order was addressed to be communicated to the appellant. The appellant got the knowledge of the impugned order on 16‑12‑1989 when he contacted with the office of Commissioner, Revenue Department to know about the result of appeal brought against the respondents Abdul Hamid and Imtiaz Hussain Shah. Hence the present appeal is within time from the date of knowledge of the appellant and as such the delay in filing the appeal may be condoned in favour of the appellant. The appellant has impugned the order of Secretary, Revenue Department on the following grounds:‑‑ (a) that the impugned order is not maintainable for the reasons that it has been made against law and facts; (b) that according to the decision taken by respondent No.2 while making the impugned order, the respondents Nos.3 to 15 have been allotted position in the seniority list from the date when they were not inducted in the service of the Revenue Department and were only enrolled as candidates. Hence the impugned order is against the settled principles of law because the inter se seniority among the members of service falling in the same cadre and grade is to be determined from the date of their entry in the service and not otherwise; (c) that under the impugned order, the seniority of the appellant was disturbed without affording him an opportunity of being heard by the Secretary, Revenue Department; (d) that the appellant has been promoted as Tehsildar on the basis of his seniority shown in the final seniority list of the year 1985 and no appeal was taken against his promotion by the respondents Nos.3 to

15. Hence the appellant's seniority as Naib‑Tehsildar has been disturbed with a mala fide intention to damage his future career; (e) that the final seniority list of Naib‑Tehsildars prepared in the ,year 1985 and thereafter published in the year 1986 is based upon the correct approach of law and facts by the competent authority after having consulted the service record of the officers and the change of the seniority position of the appellant on the basis of miscellaneous application was not warranted and justified by any rule of procedure; (f) that a disputed case of seniority between the appellant and Syed Imtiaz Hussain Shah is still pending before respondent No.2 and without deciding that case the impugned order has been passed on the basis of hypothesis which is against the law; (g) that according to the seniority list prepared in the light of impugned order, the persons serving outside the Department have been given the seniority over the members of service in the Revenue Department. Hence the impugned order is liable to be set aside for being illegal and contrary to set principles of service rules and procedure.

3. It is prayed by the appellant that the impugned order dated 25‑10‑1989 made by Secretary, Revenue Department and the seniority list prepared on the basis of that order may be set aside and the position of the appellant be restored 8 shown in the seniority list for the year 1985.

4. By a short order of this Tribunal dated 16‑4‑1990, the above appeal was admitted for regular hearing in this Tribunal and the respondents were asked to submit their objections, if any, as to the maintainability of the present appeal. Respondents Nos.l to 3, 5 to 7, 11 and 14 were not found present by this Tribunal despite the service of notice upon them and were proceeded ex parte. Respondent No.8 was also found absent despite service and was proceeded ex parte whereas Kh. Ghulam Nabi Mir was reported to be dead on 19‑11‑1990. The respondents Nos.3 and 13 were also proceeded ex parte and on a later date, the respondents Nos.5 and 15 were also proceeded ex parte. Subsequently the ex parte order of respondent No.6 was vacated. The written statements filed by the respondents Nos.3, 4, 7, 9 and 12 reveal that the appeal is not maintainable for being time‑barred. The respondents Nos.4, 7 and 12 were all decidedly senior to the appellant. The appellant was promoted as Naib‑Tehsildar on 28‑9‑1978 while the respondent No.4 on 15‑3‑1975, respondent No.7 on 6‑9‑1975 and respondent No.12 on 6‑10‑1973. The seniority list was prepared tentatively and its entries were wrong. Similarly objections were raised by respondent No.9 and respondent No.3 and it was stated by them that the impugned order was made by Secretary, Revenue Department after hearing the appellant alongwith the respondents. The services of respondent No.3 were borrowed out of the Department and hence the objection that he remained posted out of the Department is without force.

5. We have examined the contents of the appeal and the service record placed on the file. A copy of the final seniority list in respect of Naib Tehsildars of Revenue Department prepared in the year 1985 is placed on the file and according to this list the appellant has been shown at serial No.8 while the respondent Abdul Hamid at serial No.3 and the rest of the respondents are shown junior to the appellant. But the position of the appellant has been changed in the subsequent seniority list 1988 placed on the file as Annexure B/IX where he has been placed against serial No.17 Junior to respondents Nos.3 to

15. This subsequent seniority‑ list seems to have been prepared in the year 1988 in accordance with the impugned order of Secretary, Revenue Department which he had made in appeal case entitled Mr. Salim Akhtar Awan against the final seniority list of 1985 issued by the Commission under No.867‑927/86, dated 5‑2‑1986. In the impugned order, the case of the appellant has been discussed before changing his position in the seniority list

6. There is no truth in this objection that the respondents were allowed seniority w.e.f. the date on which they were selected as approved candidates for the posts of Naib‑Tehsildar in the Revenue Department. Actually what happened is that under the impugned order the Secretary, Revenue Department allowed senior position to those members of the service who were approved candidates for the service of Naib‑Tehsildar but were not appointed on occurrence of vacancy in the regular cadre in order of their approval and instead of them some junior on the approved list was appointed to serve as Naib‑Tehsildar. The Secretary allowed seniority to those officers from the date they were due to be appointed in the regular cadre of service irrespective of the fact that they were appointed on that date or not. The appellant is also incorrect that he was not a party to the case in the appeal brought by Salim Akhtar before the Revenue Secretary and that he was not given an opportunity of personal hearing by the Secretary, Revenue Department. It is available on the appeal file of Saleem Akhtar that he was one of the respondents in that appeal and he had also submitted his objections against that appeal. The impugned order shows that a copy of the said order was directed to go to all the respondents for their information in the appeal case of Salim Akhtar. Nevertheless, the impugned order was made on 25‑10‑1989 and there is nothing on the file that the appellant was present before the Secretary, Revenue Department on the date the order was announced. The appellant I claims that he was not informed of the impugned order and as such the delay in filing appeal at this forum be condoned in his favour. In support of his contention he has filed an affidavit which has not been controverted by any counter‑affidavit of any member of service cited as respondent in the present appeal. The appellant was required to file his appeal within thirty days from the date of knowledge and according to him he came to know about the order on 16‑12‑1989 when he had contacted the office of Commissioner, Revenue Department to know the result of his appeal against Abdul Hamid and Imtiaz Hussain Shah respondents. Hence the appeal is allowed from the date of knowledge of the appellant and is held to be within time. If the appellant's promotion to the post of Tehsildar has not been challenged by the respondents Nos.3 to 15 in the proper forum, he has secured a safer position in the Department and he must not feel himself aggrieved for any change of his position in the seniority list of the members of Naib‑Tehsildari service. Syed Imtiaz Hussani Shah is one of the respondents in the present appeal and with the disposal of this appeal the dispute of seniority between the appellant and Syed Imtiaz Hussain Shah shall be resolved and the impugned order does not appear to be suffering from any legal defect on that account.

7. It is true that at the relevant time of appointment of respondents as Naib‑Tehsildar, Azad Kashmir Revenue Officers Rules, 1970 (hereinafter to be referred as Revenue Officers Rules, 1970) were applicable and hence the same shall be applicable for resolving the dispute of inter se seniority among the members of Naib‑Tehsildari service. While going through the impugned order, we find that the position assigned to the appellant in the seniority list of 1985 must have changed because of the fact that he had joined the Department later than the respondents. Rule 10, sub‑rule (1) of Revenue Officers Rules, 1970 provides how the inter se seniority of the members of service in the cadre of Naib‑Tehsildars is to be determined. The relevant Rule is reproduced below for guidance:‑‑ "(a) In the case of members appointed by initial recruitment, in accordance with the order of merit assigned by the Revenue Commissioner in the case of Naib‑Tehsildars provided that persons selected for the service in early selection shall rank senior to the persons selected in the later selection. (b) In the case of members appointed otherwise, with reference to the date of their continuous appointment therein; provided that if the date of continuous appointment in respect of two or more officers is the same the older officer, if not junior to the younger officer/official of officers in the next below grade, shall rank senior to the younger officer or officers." A plain reading of the above rule would make it manifestly clear that inter se seniority of the members of Naib‑Tehsildari service shall be determined in the order of merit assigned by the competent authority i.e. Commissioner in case of Naib‑Tehsildars provided that the persons selected for the service in an earlier selection shall rank senior to the persons selected in later selection and that in case of a departmental promotion from among the members of subordinate service, the seniority shall be determined w.e.f. the date of their continuous appointment. Unfortunately, no merit list was prepared in the instant case by the Revenue Commissioner and the inter se seniority among the members of Naib‑Tehsildari service was ordered to be regulated under the impugned order w.e.f. the date on which the members of such service were due to be appointed in the regular cadre against the clear vacancies irrespective of the fact that any of them was appointed on such date or not. This rule of seniority is not provided anywhere and we do not feel ourselves inclined to endorse the view of the Secretary, Revenue Department. In our opinion this is not the correct approach to solve the question of seniority among the present parties. We are of the view that the candidates approved for the post of Naib- Tehsildar cannot have their seniority over the members of regular service in the department unless they are duly appointed as such in the regular cadre of service. In the instant case we find that no merit list was prepared by the Commissioner for determining the inter se seniority of the appellant and the respondents Nos.3 to 15 and under such circumstances, we must follow the general rule of seniority viz. the contestants must be given effect of seniority from the date they had actually joined the service in the regular cadre of Naib- Tehsildars. Hence in absence of the merit list we will be well‑advised to follow the general principles of seniority and would place it on the file that the inter se seniority among the members of Naib‑Tehsildari service shall be reckoned and determined from the date on which they had actually joined the post of Naib‑Tehsildar for service in the Revenue Department.

8. We have gone through the impugned seniority list and we find that all the contesting respondents excepting Syed Abbas Shah, Syed Imtiaz Hussain Kazami and Malik Naeem Tariq have entered in the regular service of Revenue Department as Naib‑Tehsildars long before the entry of the appellant who was appointed as such on 28‑9‑1978. Hence we find no scope for the appellant to challenge the seniority of those Naib‑Tehsildars who had entered in the regular service of Naib‑Tehsildars earlier to him. However, the case of respondent No.11 Syed Abbas Shah, No.12 Syed Imtiaz Hussain Kazmi and that of No.14 Malik Naeem Tariq is to be dealt with separately because they have been given seniority after condoning the period spent by them against ex cadre post. Hence their seniority shall be reckoned w.e.f. the date, on which they had actually joined the office of Naib‑Tehsildar. Syed Abbas Shah and Malik Tariq have joined the service in the regular cadre on 12‑4‑1979 and 25‑3‑1980 respectively and for that reason they shall rank junior to the appellant who has joined the regular cadre of service on 28‑9‑1978 much earlier than those respondents. There is nothing on the personal file of Syed Imtiaz Hussain Shah as to when he had joined the regular cadre of Naib -Tehsildar in the Revenue Department. Hence the appellant Syed Aftab Hussain Shah Gardaizi is held senior to Syed Imtiaz Hussain Kazami respondent No.12.

9. For the reasons discussed above, we allow this appeal to this extent that the appellant Syed Aftab Hussain Shah Gardaizi shall rank senior to Syed Abbas Shah, Syed Imtiaz Hussain Kazmi and Malik Naeem Tariq respondents Nos.11, 12 and

14. No order as to the costs. AA./193/SrA Order accordingly.