1984 PLP (C (PLC(CS))

The appeal has been contested by the respondent on whose behalf written statement was filed by the Additional Advocate‑General in which. it is alleged that the appellant was never promoted to Grade‑20 and as such he cannot claim the pay of said grade and that he is being rightly given the pay of the grade of the post which he held in his parent Department as well as in Civil Secretariat before his transfer to Supreme Court. We have heard the learned counsel for the parties and have also gone through the record of the case. It has been contended by the learned counsel for the appellant that since the appellant had been appointed to the post of Registrar. Supreme Court which carries Grade‑20 pay, he is entitled to the pay of the said post from the date of his joining the same under section 16 of the Azad Jammu and Kashmir Civil Servants Act, 1976 (hereinafter refer to as Civil Servants Act) and that by disallowing him the pay of Grade‑20, the terms and conditions of his service have been violated. On the other hand the learned counsel for the respondent has argued that the appellant holds the substantive appointment to the post of District and Sessions Judge in Grade‑19 and was also working on the post of O. S. D. Civil Secretariat in the same grade at the time of his transfer as Registrar, Supreme Court and as such the pay of Grade‑20 was rightly refused to him by the Government vide impugned orders as he was never promoted to Grade‑

20. It was further contended that under section 9 of the Civil Servants Act the appellant was liable to transfer from secretariat to Supreme Court and that the only protection available to him is that his pay cannot be less than what he would have drawn from time to time in his substantive capacity, but for his transfer to Supreme Court. After giving our due thought to the arguments addressed at the bar and taking into consideration the facts of the case by the law applicable to it we are of the opinion that the decision of this appeal depends upon the determination of the question as to whether or not section 16 of the Civil Servants Act is attracted to the case of the appellant ? If the answer to the above question is in the, affirmative, then there remains no room for any doubt that the appellant is entitled to draw the pay of Grade‑20 from the date he is holding the post of Registrar, Supreme Court. For the sake of facility of reference the above section is repro duced which reads as under :- "A civil Servant appointed to a post or grade shall be entitled, in accordance with the rules, to the pay sanctioned for such post or grade." In view of the‑, above provision of law the claim of the appellant to the pay of post of Grade‑20 would be perfectly valid if he is found to have been appointed to the post of Registrar,' Supreme Court within the meaning of the section 16 of the Civil Servants Act because the said post is placed in N. P. S. No.

20. But in our view the appellant was never appointed to the post of Registrar, Supreme Court in terms of section 16 of the Civil Servants Act. Before we advance reasons for our above review, it appears necessary to reproduce the relevant extract of the Government order, dated 26th November, 1977 where under the appellant was transferred from Secretariat to Supreme Court. The plain reading of the extract of the order reproduced above would show that the appellant after having been reverted to his parent judicial Department from the post of O. S. D. in the Civil Secretariat was transferred and posted as Registrar, Supreme Court and his lien was kept against the post of District and Sessions Judge in the said Department. Had the appellant been appointed to the post of Registrar as envisaged by section 16 of the Civil Servants Act then in the order reproduced above he should not have been shown to have been transferred and posted as Registrar, Supreme Court but instead in the said order the word 'appointed' should have been used in place of word "posted" and his lien against the post of District and Sessions Judge in the Judicial Depart ment should not have been kept. The appointment and posting is not one and the same thing but are two different words connoting quite different meanings. The appointment to a post is made either by initial recruitment, promotion or transfer but in case A of posting the person so posted already stands appointed to a certain post. Thus, when a Civil Servant is transferred and posted to a post it does not mean that he is appointed ‑a post to which he has been posted by way of transfer from other post. Moreover, when a civil servant is appointed to post by transfer or promotion his lien on the post which be held immediately before his said appointment cannot be legally retained because all his connections with it are severed on h‑is ‑ appointment to new post. The order under consideration clearly indicates that by virtue of it, the appellant was not appointed against the vacancy of the post of Registrar but was only posted as such by way of his transfer from the post of O. S. D. in Civil Secretariat which the Government was competent to do under section 9 of the Civil Servants Act which reads as follows :‑ "Section 9. posting and transfers.‑Every civil servant shall be liable to serve any where within or outside Azad Jammu and Kashmir in any post under the Government or the Council or the Federal Government of Pakistan or any Provincial Government of Pakistan, or a local authority or a Corporation or a body set up or established by any such Government : Provided that, where a civil servant is required to serve in a post outside his service or cadre, his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled if he had not been so required to serve." Under the above provision of law the appellant was liable to be transferred from the Civil Secretariat and posted to the Supreme Court and the only protection available to him is that his pay cannot be less than what he would have drawn from time to time on his substantive post bad he not been sent temporarily to Supreme Court. Therefore, on the basis of the order by which the appellant was reverted to the Judicial Department from the post of O. S. D. in Civil Secretariat and further transferred and posted as Registrar, Supreme Court it cannot be said that B he stood appointed to the post of Registrar, Supreme Court in terms of section 16 of the Civil Servants Act. Apart from the above reasons even otherwise under the relevant law the appellant's posting to the Supreme Court in the capacity of its Registrar cannot be held to be such appointment which confers upon him the right to draw the pay sanctioned for the said post. It needs hardly any mention that the appointment to and the terms and conditions of the service in respect of persons in service of State of Jammu and Kashmir are regulated by the Civil Servants Act and the rules made thereunder as is clear from section 3 of the said Act. Under section 4 of the said Act, the appointment to a civil service of Azad Jammu and Kashmir or a civil post in connection with the affairs of the Government shall be made in the prescribed manner by the Government or by a person authorised by it in that behalf and under clauses (i) and (j) of subsection .1 (b) of section 2 of the same Act prescribed means prescribed by rules and rules means the rules made or deemed to have been made under the said Act, respectively. The Government in exercise of its powers conferred on it by section 23 of the Civil Servants Act has made the rules called as "Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 (hereinafter refer to as rules). According to rule 3 (i) "appoint ment to a post shall be made by promotion, transfer or initial recruitment, as may be prescribed by the Government in relations to the posts in a C grade from time to time" and under sub‑rule (2) of the above rule "appointment by promotion or transfer shall be made in accordance with Part It and by initial recruitment in accordance with Part III of the said rules." Under rule 4 (7) of the rules, the Azad Jammu and Kashmir Selection Board shall make selection for appointment by promotion and transfer to all posts in Grade‑16 and above and under rule 9 (i) which falls under Part 11 of the rules relating to appointment by promotion or transfer or deputation the appointments of by promotion or transfer to post in various grade shall be made on the recommendations of the appropriate Committee or Board. In view of the above provisions of relevant law and rules the appoint ment to the post of Registrar, Supreme Court could only be made by promotion or transfer by the Government on the recommendations of the Azad Jammu and Kashmir Selection Board because the appointment to civil service in Azad Kashmir or to a post in connection with the affairs of the Government is required to be made by the competent authority is the manner prescribed by the rules. It is undisputed that the appointment of the appellant to the post of Registrar, Supreme Court was not made on the recommendations of the, Selection Board and, therefore, it does not tantamount to a appointment to the said post in terms of section 16 of the Civil Servants act so as make the appellant eligible to the pay of G‑ade‑20 to which the post of Registrar, Supreme Court belongs. Moreover, the appellant could not be appointed to the post of Grade‑20 by transfer in view of the provision of rule 11 of the rules according to which "appoint ment by transfer to a post in a functional unit shall be made from among the persons holding appointments on regular basis in other functional unit in the same grade in which the post to be filled exists". The appellant was holding the post of Grade‑19 both in his parent department as District and Sessions Judge as well as in the Civil Secretariat in his capacity as O. S. D. before his transfer and posting to Supreme Court and as such he was under disability to be appointed to the post of Grade‑20 of Registrar, Supreme Court by transfer because only Grade‑20 Officer is eligible for appointment to the said post by way of transfer from the department of the Government. It is not even the case of the appellant that before his transfer to the Supreme Court he was first promoted to Grade‑20 from Grade‑19 that he was holding at the time of his transfer in his capacity as O. S. D. to the Supreme Court. It may be mentioned here that the post of the O. S. D. against which the appellant stood posted at the time of his reversion to Judicial Department and transfer to the Supreme Court was in Grade‑19 as is evident from the Government Order No. 278/11/77, dated 29th September, 1977. For the foregoing reasons, we are of the opinion that the appellant was never appointed to the post of Registrar in Grade‑20 either substan tively or on ad hoe basis within the meaning of the term appointment a envisaged by the Civil Servants Act and the rules made thereunder and therefore, section 16 of the Civil Servants Act is of no avail to him for basing his claim to the pay of the Grade‑

20. The appellant, in our view has been temporarily sent to the Supreme Court to work as Registrar there by way of deputation from his sub stantive post of Grade‑19 in the Judicial Department and he is titled to the pay of Grade‑19 only by virtue of the provision of section the Civil Servants Act which entitled the civil servant to the pay is to which he is appointed and the only protection available to him under section 9 of the Act is that he shall receive the same pay to which he would have been entitled to from time to time for his appointment in his parent department but for his deputation to ex‑cadre post in Supreme Court. Therefore, we find no legal sanction behind the appellant's claim to the pay of Grade‑20 merely by reasons of his working against the pos: of said grade and by refusing to allow the same, the Government respondent have not violated any of the terms and conditions of his service guaranteed to him under the Civil Servants Act. With the result that the Tribunal has no jurisdiction to interfere with the impugned orders of Government and sanction him the pay of Grade‑

20. But at the same time we are of the view that whereas on the one hand the Government was empowered to temporarily send the appellant on deputation to Ex‑cadre post in Supreme Court, on the other it is equally under legal obligation to allow him the benefit of deputation pay permissible under the deputation policy issued under Government Order No. FD/16408/79, dated 12th November, 1979 laying down the general terms and conditions of deputation. The appellant was transferred on deputation to Supreme Court to a post which carries the pay scale higher than that held by him in his parent department and as such he is entitled to deputation allowance (a), Rs. 20% of his basic pay in the parent depart ment subject, of course, to the conditions that his total pay inclusive off deputation allowance does not exceed to the maximum of the pay scale of the deputation post i. e. Registrar, Supreme Court in accordance with the paragraph i (ii) of the above‑mentioned deputation policy. It appears appropriate to mention here that when we say that .the appellant has the right to deputation allowance under above provisions of the deputation policy we may not be taken to be oblivious of the subsequent Government order issued under No. FD/19618‑19678/79, dated 19th December, 1979 elaborating the aforementioned deputation policy under whose clause 10 of paragraph 1, it is laid down that "if a Government servant is transfer red from one department to another under the Azad Jammu and Kashmir Government, it will not be a case of deputation and no deputation allowance will be admissible to him" but in our view the above provisions contained in aforesaid order are not at all applicable in the case of the appellant. His transfer from the Civil Secretariat or from Judicial department to the Supreme Court does not tantamount to deputation to other department of the Azad Jammu & Kashmir Government for, by no stretch of imagination, the Supreme Court can be categorised to be a department of the Government. The Supreme Court is constitutional Court created under the Constitution and thus it cannot be deemed to be Department of the Government which even in the rules of Business is not shown to be so. In this view of the matter the appellant's case falls outside the ambit of paragraph i (10) of the subsequent Government Order, dated 19th December, 1977 referred to above, and is fully covered under paragraph i (ii) of the deputation policy notified under Government order, dated 12th November; 1979 which was in. force at the time of deputation of the appellant to the Supreme Court. The upshot of the above discussion is that the appellant's claim to the pay of Grade‑20 is not valid and cannot be allowed but he is entitled to the pay of Grade‑19 which be holds in his parent department plus the deputation pay at the rate of 20% of his basic pay in the said grade i.e. 19 w. e. f. the date of his joining as Registrar, Supreme Court subject to the restriction as to the maximum limit of pay permissible to a deputationist imposed under paragraph i (ii) of aforesaid Government order, dated 12th November. 1979. As a result the appeal stands partly accepted to the extent indicated above. In the circumstances of the case, the parties are left to bear their own costs. A. E. Appeal partly accepted.