2018 PLP (C (PLC(CS)N)

SARDAR ABDUL HAMEED KHAN, J.

This petition for leave to appeal has been directed against the consolidated judgment of the Service Tribunal dated 03.10.2017, whereby, while setting aside the impugned notification dated 17.07.2012, the appeals filed on behalf of respondents Nos.1 and 2, herein, have been accepted.

2. The precise facts forming the background of the instant petition for leave to appeal are that respondents Nos.1 and 2, herein, filed separate appeals before the Service Tribunal of Azad Jammu and Kashmir alleging therein that they were appointed against the posts of Assistant Engineer, B-17, Electrical vide order dated 11.04.2009 along with others in the Hydro Electric Board. In the appointment order dated 11.04.2009, it is provided that the seniority of the appointees shall be determined on the basis of order of merit. In the order of merit, respondents Nos.1 and 2 placed at serial Nos.2 and 4, respectively. It was alleged that the petitioner, herein, who was appointed against the post of Assistant Electrical Engineer on 11.04.2009 finds placed in the order of merit at serial No.5. After permanent induction of the contesting parties, the petitioner moved an application to the Hydro Electric Board to the effect that he was appointed against the post on contract basis vide order dated 17.12.2004, therefore, while omitting the word 'contract' from the order, the retrospective effect may be given to his permanent appointment made on 11.04.2009 and the seniority may be determined from the date i.e. 17.12.2004. Thereafter, the Secretary Electricity/ Hydro Electric Board forwarded the case to the worthy Prime Minister for proper orders. Later on, the petitioner again moved an application to the worthy Prime Minister/ Chairman Hydro Electric Board, the word `contract' mentioned in the appointment order made on contract basis on 17.12.2004 may be omitted and the effect to his permanent appointment may be given from 17.12.2004, according to the policy of WAPDA as the Hydro Electric Board followed the policy of WAPDA. Thereafter, vide impugned notification dated 17.07.2012, the word 'contract' mentioned in the contract appointment order dated 17.12.2004 has been omitted. This notification was challenged by respondents Nos.1 and 2, herein, through separate appeals stating therein that the said order being against law adversely affected the terms and conditions of the respondents as if the effect to the permanent appointment of the petitioner is given from the date dated 17.12.2004 then he will become senior to the respondents-petitioners which is against the norms of justice and also against the appointment order dated 11.04.2009 wherein it is specifically provided that the seniority of the incumbents shall be determined on the basis of order of merit. The learned Service Tribunal after necessary proceedings, vide impugned order dated 03.10.2017 while accepting the appeals filed by the respondents, herein, set aside the notification dated 17.07.2012, hence, this petition for leave to appeal.

3. Ch. Shoukat Aziz, Advocate, the learned counsel for the petitioner, argued at length very forcefully that the judgment passed by the learned Service Tribunal is against law and the facts of the case which is not sustainable in the eye of law. He contended that the learned Service Tribunal has no jurisdiction to issue a direction, in this way. the learned Service Tribunal while issuing the direction has acted beyond its jurisdiction. He argued that respondents Nos.1 and 2, herein, do not fall in the definition of civil servants, therefore, they have got no locus standi to file the appeals before the learned Service Tribunal. He further argued that the learned Service Tribunal while delivering the impugned judgment has not taken into consideration this important legal aspect of the case. He contended that the petitioner, herein, was appointed on the recommendation of the Selection Board and after test and interview his appointment order was issued according to the policy of the department which is akin to the policy of WAPDA. He argued that the other officers who were appointed in the badge of the petitioner and their appointments were regularized by the department, therefore, the petitioner is also entitled for the same treatment. He further argued that according to the Power Development Organization Act, 2014 and Rules, 2015 made thereunder, the services of the employees and officers of the department were regularized, hence, the appeal filed by respondents Nos.1 and 2, herein, was liable to be dismissed on this sole ground because the jurisdiction of the Tribunal is not provided in the Act ibid. He further argued that the petitioner, herein, was appointed on the recommendations of the Selection Board at the time of his contract appointment, hence, omission of word "Contract" was justified, therefore, the learned Service Tribunal failed to distinguish the case of the petitioner. The learned counsel lastly prayed for grant of leave on the point of jurisdiction while referring to the pronouncements of this Court titled Javaid Iqbal v. Raja Khan Afsar Khan and others (Civil Appeal No.75 of 2016) decided on 16.12.2017 and Mushtaq Ahmed Gorsi v. Azad Government and others (Civil Appeal No. 120 of 2017) decided on 16.12.2017.

4. Conversely, Messrs Humayun Nawaz Khan and Muhammad Hanif Khan Minhas, Advocates, the learned counsel for respondents Nos.1 and 2, herein, while controverting the arguments of the learned counsel for the petitioner, submitted that the petitioner has not raised this objection before the learned Service Tribunal, therefore, the same cannot be argued before this Court. They argued that the counsel for the petitioner, herein, in the objections finding part of paper-book at pages Nos. 42 to 44 in paragraph 16 has himself admitted the position that the seniority of the employees has to be issued according to the Azad Jammu and Kashmir Civil Servants Act, 1976. Moreover, the petitioner himself has filed Service Appeal No.1227 dated 21.12.2011 regarding the cancellation of promotion on officiating basis dated 23.09.2011 of one Muhammad Fareed Sheikh who is arrayed as respondent No.8, herein. They further argued that the respondents, herein, admittedly fall within the definition of civil servants, therefore, the objection of the learned counsel regarding the jurisdiction as well as the status of civil servants is clear picture of approbation and reprobation which is totally mala fide. The learned counsel very strongly argued that the petitioner, real respondents as well as proforma-respondent No.8 including other contract employees among others petitioners participated in the test and interview for permanent appointment on 10.04.2009 and on the basis of the merit list, the petitioner actually named Mazhar Ahmed son of Muhammad Akbar Chaudhary obtained 5th position whereas respondent No. 1 stood at 2nd and respondent No.2 at 4th position, whereas, proforma respondent No.8 stood first, whereupon, the permanent appointment order of the petitioner as well as respondent were issued on 11.04.2009 (Annexure 'PD and 'PG'), wherein, it is clearly mentioned that the seniority will be reckoned according to the order of merit, hence, the petitioner malafidely maneuvered the notification for omission of word 'contract', which was a clear device because the summary was made earlier than the application moved by the petitioner to the Worthy Prime Minister/Chairman, Hydro Electric Board which has rightly been set aside by the learned Service Tribunal, where, no question of law is involved. The learned counsel further added that the matter pertains to the order passed prior to the promulgation of the Power Development Organization Act, 2014 which is enforced w.e.f. 09.04.2014, with no retrospective effect. The learned counsel lastly prayed for dismissal of the petition for leave to appeal.

5. Mr. Mushtaq Ahmed Janjua, Advocate, the learned counsel for proforma-respondent No. 8, herein, argued that the petitioner, herein, and proforma-respondent No.8 are at the same footing before the learned Service Tribunal. He argued that according to the appointments order of the Assistant Engineers dated 11.04.2004, the name of proforma-respondent No.8, herein, is placed at serial No.1 of the list and the name of the petitioner, is placed at serial No.5, therefore, if the seniority is determined from the date i.e. 11.04.2004, then proforma respondent No.8 is senior to the petitioner, herein. He contended that the appeal has been filed in the year 2012, whereas, the Azad Jammu and Kashmir Power Development Orginazation Act, 2014 has been promulgated in the year 2014, therefore, the learned Service Tribunal had the jurisdiction to entertain the same.

6. Syed Asim Masood Gillani, Advocate, the learned counsel for proforma-respondents Nos.3 to 6, herein, while adopting the arguments of Mr. Mushtaq Ahmed Janjua, Advocate, the learned counsel for proforma-respondent No.8, herein, submitted that the Azad Jammu and Kashmir Hydro Electric Board does come within the definition of the Azad Jammu and Kashmir Power Development Organization Act, 2014, as provided under sections 12 and 19 of Act, 2014, hence, the matter pertains to procedure of 2003, made vide notification dated 30.09.2003, whereby, the different rules made for civil servants were made applicable to the employees of the Board.

7. I have heard the arguments of the learned counsel for the parties and perused the record made available. The main argument and the ground raised in this petition for leave to appeal is regarding the jurisdiction of the Service Tribunal. The learned counsel for the petitioner forcefully argued that the respondents do not come within the definition of civil servants and stricto senso under the Azad Jammu and Kashmir Civil Servants Act and they have no locus standi to file the appeal before the learned Service Tribunal. Thus, on this sole ground, the appeals entail dismissal. The argument of the counsel for the petitioner is not tenable on the ground firstly that from the perusal of the record, it is obvious that the petitioner himself has knocked the door of the Service Tribunal while filing Civil Appeal No. 1227 of 2012 titled Mazhar Ahmed Ch. v. Azad Government and others against the Notification No.2011/12346-54/ dated 23.09.2011 regarding the promotion of proforma-respondent No.8 (Muhammad Fareed Sheikh) and this fact is admitted by the parties. Thus when the petitioner himself submitted to the jurisdiction of the Service Tribunal and has raised no objection, later on, he cannot be allowed to blow hot and cold in one breath. Secondly, the petitioner had got ample opportunities before the Service Tribunal to raise the point of jurisdiction but a perusal of the record shows that he never objected the jurisdiction of the Service Tribunal, hence, under the settled law the point which was not raised before the lower forum cannot be raised before this Court.

8. As for as the question of applicability of PDO Act, 2014 and Rules, 2015 made thereunder, is concerned, it may be observed that the Power Development Organization Act, was enforced from 09.04.2014 and the Rules made under the Act was enforced from 18.08.2015, respectively, without any retrospective effect whereas, the notification impugned was issued prior to the promulgation of the Power Development Organization Act, 2014, thus, the provisions of Power Development Act, 2014 are not applicable to the case in hand. Prior to the promulgation of the Power Development Organization Act, 2014, the services of the employees of the Hydro Electric Board were governed by the Azad Jammu and Kashmir Hydro Electric Board Departmental Service Procedure, 1994 and the Azad Jammu and Kashmir Hydro Electric Board Departmental Service Procedure, 2003, wherein, nothing is mentioned whether the Hydro Electric Board is statutory or autonomous body vis-a-vis the Azad Jammu and Kashmir Rules of Business, 1985, in the first schedule is shown as special institution of the Electricity Department and the Secretary Electricity Department was also the Secretary of the Hydro Electric Board and all the rules applicable to the employees of the Electricity Department were applicable to the employees of the Board. Thus, the employees of the Hydro Electric Board being civil servants against the orders effected the terms and conditions have to approach the Service Tribunal for their grievances.

9. So far as the notification impugned dated 17.07.2012 is concerned, a glance perusal of the said notification, it is obvious that the word 'contract' mentioned in the contract appointment order of the petitioner dated 17.12.2004 is omitted, meaning thereby that the permanent appointment of the petitioner made vide order dated 11.04.2009 has been given effect from the date 17.12.2004. Wherefrom, it is crystal clear that the impugned notification dated 17.07.2012 was issued in contravention to the conditions of order dated 11.04.2009 pertaining to the total Five Assistant Engineer, Electrical, (B-17), wherein, it has categorically been provided that the seniority shall be determined on the basis of order of merit and in the said order, the petitioner, herein, has secured 5th position (the last one). It is transpired from the record that the petitioner moved an application having no date of drafting/signing of the petition which was allowed and made over to the Secretary Electricity/ Hydro Electric Board by the Worthy Prime Minister, Chairman of Hydro Electric Board on 11.08.2011 (Annexure PH/2, herein), whereas, a proposal bearing No.HEB/6287/10 dated 02.10.2010 (Annexure PH) was moved to Secretary Electricity/ Hydro Electric Board by Managing Director Hydro Electric Board (Annexure PH), whereupon, summary was submitted to the Worthy Prime Minister/ Chairman Hydro Electric Board on 03.12.2010, thereafter, the impugned notification dated 17.07.2012 (Annexure PH/3) was issued, wherefrom, it is evident that the proposal was initiated on 02.10.2010. A summary was moved on 03.12.2010 and then the petitioner moved the application directly to the Worthy Prime Minister/Chairman Hydro Electric Board on 11.08.2011 and then the impugned Notification, which is astonishing. It deems appropriate to observe that this is a clear tactis of maneuvering of issuance of the impugned notification which is a mala fide exercise apparent on the face of the record. Thus, it is an unsuccessful and unclean effort by the petitioner and mala fide exercise/practice by the official respondents, hence, the Tribunal has rightly set aside the impugned notification dated 17.07.2012 and committed no illegality.

10. In the light of what has been discussed above the petitioner failed to substantiate any question of law of public importance. It may be observed that leave cannot be granted in every case to give false hopes to the petitioner, therefore, the petition for leave to appeal being devoid of any force is dismissed. No order as to costs. Since the petition for leave to appeal has been refused, therefore, the application for interim relief is consigned to record. ZC/9/SC(AJ&K) Leave refused.