1988 PLP (C (PLC(CS))

MUHAMMAD SIDDIQUE FAROOQI (CHAIRMAN).‑‑The appellants joined service as Tehsil Qazi on the basis of an ad hoc, made vide order dated 5‑11‑1972. The appellants alongwith some others were approved by the Public Service Commission for this appointment and the Government confirmed their appointment, vide their order No.3214‑25/73 dated 7‑10‑1973. All the persons, appointed on 5‑11‑1972 were confirmed but the sequence of their names in the order dated 7‑10‑1973 was somewhat different than that, in order, dated 5‑11‑1972. The appellant Abdul Aziz Abbasi moved a representation to the Government on 2‑11‑1973. He had also preferred an appeal, in the Service Tribunal, which was dismissed and his further appeal in the Supreme Court also failed, vide judgment of the honourable Court, dated 14‑2‑1982. His Review Petition /representation, in the matter of seniority was rejected by the Government on 28‑7‑1985. The appellant has moved the present appeal, against order dated 28‑7‑1985, wherein the order of seniority has been also laid down besides rejection of his petition. The representation/ petition of Molvi Ghulam Mustafa has been also rejected, vide order dated 28‑7‑1985. He has also come to this Tribunal with appeal against this order. Both the appeals are being disposed of through this judgment.

2. The learned counsel for the appellants contended that both the appellants were appointed on 5‑11‑1972 and their appointment was confirmed vide order dated 7‑10‑1973. Mr. Abdul Rashid Abbassi, counsel for the appellants contends that the order of the inter se seniority remains the same as the sequence of the names written in the earlier order dated 5‑11‑1972. According to him, the words issued in the order dated 7‑10‑1983 should be construed to mean that the order of seniority should be according to the sequence of the names, shown in order dated 5‑11‑1972. The sequence shown in order dated 7‑10‑1973 is not in fact the order of seniority. Mr. Abdul Rashid Abbassi also argued that one Habibur Rehman Shah was shown at S.No.l, in order dated 5‑11‑1972, while his name appeared at S.No.5, in order dated 7‑10‑1973. He had made a representation to the Government, that he had submitted the joining report on 11‑11‑1972, therefore, his name should rank above all in the seniority l1st . The contention of Mr. Habibur Rehman Shah was accepted by the Government and according to the order passed later on his position, in the seniority l1st has been changed, placing him at S. No. l. In view of the action taken by the Government, in the case of Habibur Rehman Shah both the appellants namely; Abdul Aziz Abbassi and Ghulam Mustafa, should have been placed at S.No.2 and 3 by giving them equal treatment but the order dated 28‑7‑1985 is violative of the principle of equality, before the law guaranteed by the constitution.

3. According to the learned counsel, the appellants were entitled to preference, in matter of seniority, over those who joined the service later than the appellants, even though the appointment was made on the same day. According to the learned counsel for the appellants the merit assigned by the Public Service Commission could not be made the basis for seniority and the Government should have fixed the seniority under the provisions of K.S.R., on the basis of date of joining.

4. The learned counsel for the respondents controverted all the arguments of the counsel for the appellants. According to them, the construction put on Government order dated 7‑10‑1973 by Mr. Abbassi is fallacious and the sequence in seniority l1st shall accord with the sequence of names, shown in order dated 7‑10‑1973. The words pointed out by Mr. Abbassi do not convey the sense, he is deriving therefrom. The learned counsel for the respondents also argued that if wrong action was taken, in the case of Habibur Rehman Shah by allowing him seniority on the basis of the date of joining, further wrong should not be added and the illegal practice should not be continued, for all the times to come. The learned counsel for the respondents also stated that case of Mr. Abdul Aziz Abbassi had been finally adjucated by the Supreme Court of Azad Jammu & Kashmir, therefore, he cannot bring a fresh appeal, before the Tribunal against order dated 28‑7‑1985. The counsel for the respondents stated that the date of joining could never be made a criteria, for determining the seniority. Mr. Aslam Rathore referred to P L C 1977 C.S.T.

18. It was pleaded that on the basis of the merit, assigned by the Public Service Commission, the Government had rightly determined the seniority of the contestant officers, in the instant case. It was also pleaded that the representations/ petitions before the Government against order dated 7‑10‑1973 were preferred after a long time, therefore, the present appeal before the Service Tribunal was not competent.

5. We considered the arguments for the learned counsel for the parties and perused the record. The representation of Mr. Abdul Aziz Abbassi, made on 2‑1‑1973 is also on record. Apart from that, even in the present appeal, the legality and the ‑propriety of the order dated 7‑10‑1973 has been challenged by the appellant before this Tribunal vide para 4, of the memorandum of appeal. In view of these two factors, it does not lie in the mouth of the appellants that their seniority was maintained vide order dated 7‑10‑1973, in the same sequence as their names appeared in the first order of their appointment, passed on 5‑11‑1972. The second ground is that the appellants have been meted out a discriminatory treatment. The plea of Habibur Rehman Shah against order dated 7‑10‑1973 was accepted and his position in seniority was restored on the basis of date of joining, whereas the petitions of the appellants have been dismissed and the benefit of date of joining has not been given to them. Obviously, such a course of action is not allowed by law. The contestant officers were appointed on 5‑11‑1972, through one and the same order and their confirmation was also ordered on 7‑10‑1973. Out of the persons, appointing on 5‑11‑1972, Habibur Rehman Shah is treated at S.No.1, only on the basis of date of joining and the same treatment has been refused to the two appellants, before us. Another factor, which has come to our notice, while examining the record, is also important in this case. The government has shown in order dated 28‑7‑1985 that the petitions of the appellants were time‑barred. There is Review Petition of Mr. Abdul Aziz Abbassi, on record, which is dated 2‑11‑1972. Another photostat copy of petition of Molvi Ghulam Mustafa is also on record, wherein it has been indicated that he had made a representation to the Government on 15‑10‑1972 and he had reminded the Government in 1974 and 1975 but there was no result. Ultimately, the application made by him in 1984 was processed and the Review Petition of both the appellants were dismissed through a single order dated 28‑7‑1985. The note of the Services Department, on the file of Secretariat Amur‑e‑Dinia, regarding the determination of seniority in Para 3, (N) shows that the Tehsil Mufties/Qazis had been making the representations, against order dated 7‑10‑1973. In view of the copy of representation dated 2‑11‑1973, placed on file by Molvi Abdul Aziz Abbassi, a copy of application of Molvi Ghulam Mustafa and contents of various notes, we have the reasons, to believe that the appellants made their representations/ petitions in the matter of seniority in time but the cases were not processed. Their last applications were to be treated as reminders, and not the original Review Petitions as shown in Para 32(N) of the note of Secretary Religious Affairs dated 2‑6‑1985, in the concerned file. The question of limitation has been wrongly determined, by the Government, in these circumstances.

6. Another aspect, regarding order dated 28‑7‑1985, is also very interesting inasmuch as there is no clear approval of the competent authority for the rejection of the Review Petitions, vide para 44 of noting portion. The Secretary Religious Affairs had sent a note, to the Principal Secretary that the remarks in the matter should be brought to the notice of the Government, so that it could be finally decided and that approval of Prime Minister may be obtained for this purpose. The Principal Secretary forwarded the note to the Review Section. Thereafter, the case was sent back to the Principal Secretary and he submitted the case to the Prime Minister. The Prime Minister made the following observations: The Government order dated 28‑7‑1985, has been issued in pursuance of the above words of the Prime Minister. In our view, the suggestion that the matter may be brought to the notice of Prime Minister, made in para 44, has confused the competent authority and the authority was of the opinion that the matter has been put up to it for the information and that further action was to be taken later on i.e., why the words were written, by the authority. Ordinarily, the authority signifies the approval with the express words or it simply signs the proposal, under its hand. The words used by the authority, in our view cannot be equated with the requisite approval of the Government for dismissing the petitions. The words used by the Secretary Religious Affairs are confusing. The authority ordinarily hears the petitioners, before passing the order, which was not done in this case. This fact supports the view taken by us. In these circumstances, it is held that the order dated 28‑7‑1985, having been passed without the approval of the competent authority is also a nullity in the eyes of law. 6‑A. So far, as order dated 7‑10‑1973 is concerned against which the petitions were moved by the appellants, the Government conducted itself in a contradictory manner, in the case of Habibur Rehman Shah, vis‑a‑vis the appellants. The treatment is discriminatory as pointed out earlier. Two different yardsticks cannot be adopted, by the Government in the case of persons, belonging to the same class. They all deserve the uniform treatment. The view expressed by the Supreme Court is also to be respected for the action in the case. For these reasons, the matter is re‑opened, for fresh consideration by the Government and disposal in accordance with law. The initial order, determining seniority passed on 7‑10‑1973 is being set aside, therefore, the amending orders shall also come to an end. The Government shall also look into the fact of the disposal of the case of Mr. Abdul. Aziz Abbassi, by the Service Tribunal, as well as by the Supreme Court, in respect of which the learned counsel has stated before us that the earlier dispute, related to the promotion, the seniority was indirectly involved. He maintains that his case of seniority was pending with the Government. The Government shall. itself examine the contents of the judgment of the Supreme Court at the time of consideration of the relevant facts and shall act in accordance with law. The case of Molvi Ghulam Mustafa has not gone to the higher authorities and the orders of the Government can be set aside in his appeal, therefore, the case of Molvi Abdul Aziz Abbassi may also be looked into, if there is no bar in the light of the judgment of the Supreme Court. The plea of limitation, in the case of appeal, preferred by Molvi Ghulam Mustafa is riot material because the order was passed on 28‑7‑1985, which must have taken sometime, in reaching the appellant. The appeal seems to have been preferred on 31‑8‑1985. The appeal is, thus, treated to have been preferred in time. The order dated 28‑7‑1985, forwarded to holvi Abdul Aziz Abbassi appears to have been received on 29‑7‑1985, by his office but Mr. Abbassi has signed this communication on 5‑8‑1985. Although, the matter is somewhat doubtful that he was not apprised of the order earlier than 5‑8‑1985 but in view of the date, put in by him under his signature, i.e. 5‑8‑1985, and the appeal was lodged on 4‑9‑1985, in absence of a proof to the contrary, we also treated this appeal to have been preferred in time.

7. The upshot of the above discussion is that the appeals are: accepted and the orders dated 7‑10‑1973 and 28‑7‑1985 are set aside. The case of seniority is re‑opened. The Government is directed to pass fresh orders in this case subject to the implications of the judgment of the Supreme Court, if any, in this matter. The parties shall bear their own cost. M.Y.H./58/Sr.A. Cases remanded.