1996 PLP (C (PLC(CS))

Provided that persons, selected for appointment to the grade in an earlier selection shall rank senior to the persons selected in a later selection; and (b) in the case of persons appointed otherwise, with reference to the dates of their continuous appointment in the grade: Provided that if the date of continuous appointment in the case of two or more persons appointed to the grade is the same, the older if not junior to the younger in. the next below grade, shall rank senior to the younger person. ??????? Explanation I. ............................................. ?????? Explanation II............................................. Explanation III.‑‑Subject to the provisions of rule 14 of these rules, a junior appointed to a higher grade shall be deemed to have superseded his senior only if both the junior and the senior were considered for the higher grade and the Junior was appointed in preference to the senior. Similarly section 7 of the Azad Jammu and Kashmir Civil Servants Act, 976, reads as under:‑‑ "7.Senioritv.‑‑‑(1) Seniority on initial appointment to a service, cadre, grade or post shall be determined in the prescribed manner. (2) Seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to a post in that grade: Provided that civil servants who are selected for promotion to the higher grade in one batch shall, on their promotion to the higher grade, retain their inter se seniority as in the lower grade, (3)For proper administration of a service, cadre or grade, the appointing authority shall from time to time cause a seniority list of the members' of such service, cadre or grade to be prepared. (4) Subject to the provisions of subsection (3), the seniority of a civil servant in relation to other civil servants belonging to the same service, cadre or grade, whether serving in the same department or office or not, shall be determined in such manner as may be prescribed. ?????????? (5)..........................................................." 6.A combined reading of the above provisions of law makes it abundantly clear that a civil servant being senior in lower grade, though promoted later on shall remain senior in the higher grade, provided that he was not considered and superseded by the Selection Authority. The appellant was given the benefit of his service rendered in the Department of People's Works Programme vide order of the Government dated May 25, 1976, forming Annexure P‑7 in the paper book but this was not challenged by the respondent Nos 3 and 4 before any forum ???????????????????????? However this order was challenged by in appeal before Tribunal and thereafter in the Supreme Court but he failed before both the forums. Again there is another order dated April 15, 1980, forming Annexure P‑8 in the paper book whereby the Government accorded the sanction of the seniority of the appellant from the date of his initial appointment as Assistant Engineer in the Department of People's Works Programme towards Public Works Department. This order was also not challenged by respondents Nos. 3 and 4 as such the respondents were illegally declared senior to the appellant.

7. In the last limb of their arguments the learned counsel for respondents, as said earlier have strenuously contended that the relevant rules to be considered at the time of determination of seniority of appellant and respondents were K.S.R. but in violation of law the question of seniority was determined under the Azad Jummu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, as the appointments of contestants relate to period of 1973‑74.

8. As stated above the appellant was promoted as Executive Engineer on April 27, 1980, and was also confirmed as such on October 19, 1987. Obviously, the question of their seniority would be determined according to Rule 8 of Azad Jammu and Kashmir. Civil Servants (Appointment and Conditions of Service) Rules, 1977 (hereinafter to be referred as Rules of 1977) because according to Rule 23 of Azad Jummu and Kashmir Civil Servants Act, 1976 (hereinafter to be referred as Civil Servants Act, 1976) rules and regulations etc. which were enforced immediately before the commencement of the said Act would be deemed to be made under the Civil Servants Act, 1976, provided that those are not inconsistent with the rules framed under it. If there is in consistency between the rules framed in the K.S.R. and those framed under Civil Servants Act, 1976, the provisions contained, in Rules of 1977, shall prevail. Prima facie there is no inconsistency between Rule 8 of the Rules of 1977 and Rule 24 of K.S.R. on the point of seniority in case of promotion. In case of promotion the relevant provision contained in para. (c) of Rule 24 of K.S.R. is reproduced as under:‑‑ "(c) A member of a service class, category or grade unless he is reduced in seniority as a punishment shall retain seniority in such service or grade as determined by sub‑rules (a) and (b) notwithstanding any delay in the completion of his probation or his appointment as a member of such service, class, category or grade? Although different phraseologies have been used in Rule 8 of Rules 1977 and Rule 24 (c) of K.S.R. in the relevant provisions but there is no difference so far as principle of seniority in case of promotion is concerned. When a civil servant who is senior in lower grade to other civil servant and both are promoted to next higher grade the person who is senior in lower grade without superseding him shall retain his seniority. Thus the principle of the seniority governing the point in issue incorporated in Rule 24 (c) of K.S.R. and Rule 8 of the Rules, 1977 is the same. Therefore, even if it is assumed that matter of seniority of the parties in the instant case is considered under the K.S.R. that would not make any difference on merits and appellant shall still be senior to the respondents. 9.Rule 9 of K.S.R. read as under:‑‑ "

9. First appointments to a service or class may be made.‑‑‑(i) by transfer or promotion from another service or class, or (ii)by direct recruitment, or (iii)partly by (i) and partly (ii)." From the perusal of the above provisions it also becomes clear that there is no bar in the K.S.R. for appointment of. a civil servant by transfer. Even otherwise when the Government duly accorded the sanction for counting the services rendered in the People's Works Programme Department by the appellant towards his seniority in the Public Works Department and the order having not been challenged by the respondents before any forum, in our considered view they are not entitled to any relief. At the time of promotion of respondents, as Executive Engineers, the case of appellant, as said earlier, was neither sent nor considered in the matter of seniority.

10. For the reasons stated above we accept the appeal and vacate the order of the Service Tribunal dated February 16, 1994, and declare the appellant to be senior to respondents Nos. 3 to

5. In the seniority list the appellant shall be shown as senior to respondents Nos. 3 to 5 and it is directed that the seniority list be amended accordingly. No order as to costs. A.A./121/S(AJ&K)????????????????????????????????????????????????????? ?????????????????????????????????????????????????? Appeal accepted. ??????????????????????????????????????????????????