2020 PLP (C (PLC(CS))

IJAZ ANWAR, J.

Through this single judgment, this Tribunal shall also dispose of Service Appeal No.22-P/2015 filed by the present appellant, as identical legal and factual questions are involved therein.

2. Appellant, Shafiq Ahamad Tanoli, District and Sessions Judge, through instant appeal under section 5 of the Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal Act, 1991, has impugned the order dated 14.03.2014, passed by Administration Committee of Peshawar High Court, Peshawar, with the following prayer: "It is humbly prayed that in the given facts and circumstances of the case and the law on the subject, the appellant may graciously be allowed ante dated promotion with effect from 30.06.2010 with all back benefits and disputed seniority list of DSJs which found to be printed on 09.10.2014 but circulated vide letter No.15955-16023/Admn. Dated 5.12.2014 be also corrected and the appellant be placed on the right place as solicited."

3. In essence, the grievance of the appellant is that batch-mate of the appellant were promoted as D&SJ on 30.06.2010 vide Notification No.P (a)31-D-149-J but case of the appellant for promotion was not considered and junior officers were promoted on account of wrong, illegal and disputed seniority list.

4. Arguments of learned counsel for the parties heard and record perused.

5. For the purpose of brevity, we are not reproducing the arguments of the counsel for the parties; however, it will be discussed in the judgment at the relevant place. In the instant case, the dispute pertains to seniority of promotees and direct appointees. The appellant was appointed as Additional District and Sessions Judge vide Notification No.41-J dated 27.03.2003, whereas, six Senior Civil Judges were promoted in the promotion quota vide notification dated 22.05.2002. Similarly, further promotion of about twenty two Senior Civil Judges were notified vide Notification dated 25.06.2003.

6. It is the case of the appellant that appointment through direct recruitment was earlier in time but promotees were given seniority despite the fact that their promotion was against newly created posts besides their promotion notification is later in time, while rival stance is that the respondents were eligible at the time of creation of posts. Similarly, on the principle that promotee of the same calendar will rank senior, as such, the Honourable Administration Committee allowed the promotees to rank senior.

7. Rule 5 of the Khyber Pakhtunkhwa Judiciary Service Rules, 2001 is relevant as it provides prescribed quota to different posts, it is therefore, reproduced for ease of reference. "

5. Method of recruitment.

Appointment to Service shall be made in the following manner: (a) Appointment to a post of Civil Judge-cum-Judicial Magistrate/Alaqa Qazi shall be made by initial recruitment; (b) Appointment to a post of Senior Civil Judge-cum-Judicial Magistrate empowered under section 30, Cr.P.C./Aala Alaqa Qazi shall be made on seniority-cum-fitness basis from amongst the Civil Judges-cum-Judicial Magistrates/Alaqa Qazis on the recommendations of the Departmental Promotion Committee. (c) Appointment to a post of Additional District and Sessions Judge/Izafi Zilla Qazi shall be made to the extent of (i) not less than two-third by promotion, on the recommendations of Departmental Promotion Committee, from amongst the holders of the post of Senior Civil Judge-cum-Judicial Magistrate, empowered under Section 30, Cr.P.C/ Aala Alaqa Qazi; and (ii) not more than one-third by initial recruitment, from amongst the members of the Bar, Public Prosecutors/Government Pleaders and A.P.P./A.G.P; (d) Appointment to a post of District and Sessions Judge/Zilla Qazi shall be made by promotion, on the recommendations of the Departmental Promotion Committee, on the basis of seniority-cum-fitness from amongst the holders of the post of Additional District and Sessions Judge/Izafi Zilla Qazi; (e) Appointment by initial recruitment to a post of Civil Judge-cum-Judicial Magistrate/Alaqa Qazi shall be made on the recommendations of the Commission based on the result of a competitive examination to be conducted by it in the subjects specified in the Appendix to these rules; Provided that the High Court may make appointment by initial recruitment on contract basis, on the recommendations of the Provincial Judicial Selection Board in accordance with the policy of Government applicable to appointment on contract basis." (under lines provided for emphasis) Similarly, Rule 10 provides for determination to interse seniority of members of various pay scales. It is also reproduced for convenience: "

10. Seniority:- The seniority inter-se of the members of the service in the various Pay Scales thereof shall be determined by the High Court, subject to the conditions that: (a) in case of member appointed by initial recruitment, in accordance with the order of merit assigned by the Selection Authority as mentioned in Rule-5; Provided that persons selected for the service in an earlier selection shall rank senior to the persons selected in a later selection. (b) in the case of members appointed by promotion, seniority in a post, service or cadre to which a Civil Servant is promoted, shall take effect from the date of regular appointment to that post; Provided that Civil Servants who are selected for promotion to a higher post in one batch shall, on their promotion to the higher post, retain their enter-se seniority as in the lower post. Explanation-I If a Jr. Officer in a lower grade is promoted temporarily to a higher grade in the public interest, even though continuing later permanently in the higher grade, it would not adversely affect in the interest his/her senior officer in the fixation of his/her seniority in the higher grade. Explanation-II If a Jr. Officer in a lower grade is promoted to higher grade by superseding a senior officer and subsequently that officer is also promoted, the officer promoted first shall rank senior to the officer promoted subsequently." (under lines provided for emphasis) It is pertinent to mention here that immediately after appointment of the appellant, he was assigned his correct seniority as claimed by him but in the year, 2007, on the representation of Mr. Jehanzeb Shinwari and Mr. Shoaib Khan, Additional District and Sessions Judges, the seniority list was revised and he was relegated from his seniority position. The appellant along with other judicial officers affected by the revision of seniority, filed different appeals in this Tribunal, which were allowed vide judgment and order dated 28.06.2013 and the matter was remanded to the Honourable Administration Committee of the High Court for its consideration and decision. The judgment of this Tribunal was impugned before the Apex Court, which was maintained by the Honourable Supreme Court of Pakistan vide a consolidated judgment in 'Registrar PHC and others v. Shafiq Ahmad Tanoli', reported as PLD 2015 SC 360.

7. During pendency of the above appeal before the Apex Court, Honourable Administration Committee of the High Court considered the seniority issue and decided the matter in following terms. "After considering the submissions of both the groups of Judicial Officers from direct appointees against bar quota and promotees from the cadre and in the light of judgment dated 26.08.2013 of Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal, the Administration Committee holds as under:-

1. The joint representation submitted by Messrs Jehanzeb and Shoaib Khan is not maintainable according to N.W.F.P. (Khyber Pakhtunkhwa) Civil Servants (Appeal) Rules, 1986, however, the Administration Committee is of the view that due to grave irregularities in the inter-se seniority of both set of Judicial Officers which has surfaced during the perusal of record, the Administration Committee decided to redress the grievances of all the Judicial Officers once for all in accordance with law.

2. Quota will be observed as per rules contained in Section 5(c)(1)(ii) of the N.W.F.P. (Khyber Pakhtunkhwa) Judicial Service Rules, 2001. This is to observe the principle that all those promotees who were promoted in the same calendar year shall be considered senior to the Officers inducted through initial recruitment against bar quota for the post of Additional District and Sessions Judge.

3. The cut-off date for determination of seniority of the Judicial Officers of the rank of Additional District and Sessions Judges is fixed from the date when the posts of Additional District and Sessions Judges/Izafi Zilla Qazis were created/advertised including vacant seats already available. However, all those Senior Civil Judges who were eligible for promotion when the vacancies became available will be counted in the promotee quota and shall rank senior to the Judicial Officers appointed through initial recruitment against bar quota for the post of Additional District and Sessions Judges.

4. The promotees shall be first adjusted in accordance with their quota who were then eligible being Senior Civil Judges for promotion as Additional District and Sessions Judges when the vacancies became available and thereafter the inductees through initial recruitment against bar quota shall be adjusted in accordance with their quota and shall be entered in the seniority list after the promotees who were Senior Civil Judges before the vacancies became available, created and advertised.

5. The Administration Committee further decided that promotion cases of Additional District and Sessions Judges, mentioned in the re-casted seniority, for BPS-21 would be considered in the next meeting of the Administration Committee, as the Service Appeals are pending before the Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal.

6. The balance or excess of each quota shall be strictly maintained for future appointments/promotions and inter-se seniority.

7. The Administration Committee decided that revised seniority list shall be prepared, re-casted and uploaded on the web site of this Court in accordance with the above criteria.

8. The Administration Committee further decided that list of all Judicial Officers be updated each year and be uploaded on 15th April of each year and objections, if any, shall be invited and entertained within 30 days to avoid unrest amongst the Judicial Officers." The above determination by Hon'ble Administration Committee was mainly based upon two principles that has been set either in law or on the precedent of superior Courts and also upon certain instructions given by government from time to time that whenever a post became vacant, the departmental quota is to be observed first. Similarly, regarding the seniority to the promotees of the same calendar year, reference has been made to section 5(c)(1)(ii) of the Khyber Pakhtunkhwa Judicial Service Rules, 2001.

8. Firstly, we will take up the issue regarding seniority given to the promotees in preference to the direct recruits of the same calendar year. In this regard the relevant repealed law is Rule 6 of the Civil Servants (Seniority) Rules, 1993. The un-amended rule 6 reads as under: "

6. Persons appointed by transfer in a particular calendar year shall, as a class, be senior to those appointed by promotion or by initial appointment to such posts in that year, and persons promoted to higher posts in a particular calendar year shall, as a class, be senior to those appointed by initial appointment to such posts in that year." This rule was however amended by SRO No.572(I)/2009 dated 16.06.2009 and now the amended rule reads as under: "

6. Inter se seniority of civil servants appointed in the same calendar year:- Civil servants appointed by promotion, transfer, or initial appointment to a service, cadre, or post shall take seniority from the date of their regular appointment to that service, cadre or post: Provided that the provisions of this rule shall not in any manner affect or impair the rights of existing incumbents." It is clarified that the above rule was applicable only to the federal civil servants and it has got no application to the provincial civil servants. The seniority and its determination of the provincial civil servants is governed under section 8 of the Khyber Pakhtunkhwa Civil Servants Act, 1973 read with Rule 17 of the Khyber Pakhtunkhwa (Appointment, Promotion and Transfer) Rules, 1989 (APT Rules, 1989). It would be appropriate to reproduce Rule 17 of APT Rules, 1989, for the purpose of convenience and ready reference:-

17. Seniority:- (1) the seniority inter se of civil servants 47(appointed to a service, cadre or post) shall be determined:- (a) in the case of persons appointed by initial recruitment, in accordance with the order of merit assigned by the Commission [or as the case may be, the Departmental Selection Committee;] provided that persons selected for appointment to post in an earlier selection shall rank senior to the persons selected in a later selection; and (b) in the case of civil servants appointed otherwise, with reference to the date of their continuous regular appointment in the post; provided that civil servants selected for promotion to a higher post in one batch shall, on their promotion to the higher post, retain their inter se seniority as in the lower post. Explanation-I:-If a junior person in a lower post is promoted to a higher post temporarily in the public interest, even though continuing later permanently in the higher post, it would not adversely effect the interest of his seniors in fixation of his seniority in the higher post. Explanation-II:-If a junior person in a lower post is promoted to a higher post by superseding a senior person and subsequently that senior person is also promoted the person promoted first shall rank senior to the person promoted subsequently; provided that junior person shall not be deemed to have superseded a senior person if the case of the senior person is deferred for the time being for want of certain information or for incomplete record or for any other reason not attributing to his fault or demerit. Explanation-III:-A junior person shall be deemed to have superseded a senior person only if both the junior and the senior persons were considered for the higher post and the junior person was appointed in preference to the senior person. (2) Seniority in various cadres of civil servants appointed by initial recruitment vis- -vis those appointed otherwise shall be determined with reference to the dates of their regular appointment to a post in that cadre; provided that if two dates are the same, the person appointed otherwise shall rank senior to the person appointed by initial recruitment. (3) In the event of merger/restructuring of the Departments, Attached Departments or Subordinate Offices, the inter se seniority of civil servants affected by the merger/ restructuring as aforesaid shall be determined in accordance with the date of their regular appointment to a cadre or post. (4) The inter-se-seniority of civil servants in a certain cadre to which promotion is made from different lower posts, carrying the same pay scale shall be determined from the date of regular appointment/promotion of the civil servants in the lower post. Provided that if the date of regular appointment of two or more civil servants in the lower post is the same, the civil servant older in age, shall be treated senior." Similarly, for the members of the judiciary there are separate service rules and for determination of their seniority, Rule 10 of Khyber Pakhtunkhwa Judicial Service Rules, 2001 is relevant, which is pari materia to Rule 17 of the APT Rules, 1989 and also to Rule 9 of the repealed Khyber Pakhtunkhwa Senior Judicial Officers (Terms and Conditions of Service) Rules, 1979, Rule 9 of repealed Rules reads as under:- "

9. Seniority.

(1) The seniority inter-se of officers appointed in various grades shall be determined; (a) in the case of officers appointed by initial recruitment, in accordance with the order of merit assigned by Government at the time of appointment; provided that persons selected for appointment to a post in an earlier selection shall rank senior to the persons selected in a later selection; and (b) in the case of officers appointed otherwise, with reference to the date of their continuous appointment in the grade; provided that if the date of continuous appointment in the case of two or more officers is the same, the older officer if not junior to the younger officer in the next below grade, shall rank senior to the younger officer. (2) The seniority of the officers appointed by initial recruitment vis-a-vis those appointed otherwise shall be determined with reference to the date of continuous appointment to the grade; provided that if two dates are the same, the officer appointed otherwise shall rank senior to the officer appointed by initial recruitment." Rule 10 of the Khyber Pakhtunkhwa Judicial Service Rules, 2001 is now in field it is reproduced, which is relevant for the purpose of the present controversy.

10. Seniority:- The seniority inter-se of the members of the service in the various Pay Scales thereof shall be determined by the High Court, subject to the conditions that: (a) in case of member appointed by initial recruitment, in accordance with the order of merit assigned by the Selection Authority as mentioned in Rule-5; Provided that persons selected for the service in an earlier selection shall rank senior to the persons selected in a later selection. (b) in the case of members appointed by promotion, seniority in a post, service or cadre to which a Civil Servant is promoted, shall take effect from the date of regular appointment to that post; Provided that Civil Servants who are selected for promotion to a higher post in one batch shall, on their promotion to the higher post, retain their enter-se seniority as in the lower post. Explanation-I If a Jr. Officer in a lower grade is promoted temporarily to a higher grade in the public interest, even though continuing later permanently in the higher grade, it would not adversely affect in the interest of his/her senior officer in the fixation of his/her seniority in the higher grade. Explanation-II If a Jr. Officer in a lower grade is promoted to higher grade by superseding a senior officer and subsequently that officer is also promoted, the officer promoted first shall rank senior to the officer promoted subsequently." After examining the above rules, it transpired that the determination of the seniority was exclusively made by the Honourable Administration Committee on the basis of the repealed rules related to Federal civil servants and it cannot be applied to the case in hand. There is no concept of determination of seniority in the same calendar year in this province. Due to the misuse of those rules and its implication on the Federal civil servants, rule 6 of Civil Servants (Seniority) Rules, 1993 has already been repealed.

9. The appointment of the appellant and of the respondents was made in the year 2003 and at the relevant time Khyber Pakhtunkhwa Judicial Service Rules, 2001 were in the field. The only edge available to the appointees by promotion is that in case the date of promotion and appointment is the same, the promotee shall be considered as senior. Thus, with all respect to the Honourable Administration Committee of the High Court, determination of seniority on the analogy of the repealed Rules is against the law and cannot be sustained.

10. Now the second question, which is most important and relevant, is that where the promotees were eligible and the vacancies were available in their quota, in that case they will be given seniority over the direct recruits on the ground that the necessary exercise for their promotion was not carried out by the department within time and in the meantime appointments are made in the direct quota. This principle finds support from the judgment of Apex Court in the case of 'Government of NWFP and others v. Buner Khan and others' (1985 SCMR 1158).

11. Rule 5 of the Khyber Pakhtunkhwa Judicial Service Rules, 2001 prescribes the quota for filling the posts of Additional District and Sessions Judges as two-third by promotion and not more than one-third through initial recruitment from the members of the Bar. Now we will see the above principle set forth by the Honourable Supreme Court in the case of Buner Khan ibid and also the determination so made by the Honourable Administration Committee. To determine this issue, it would be appropriate and relevant to refer to the additional comments submitted by the respondent No.1. In the year, 2002 there were total nine posts available of which three posts were earmarked for initial recruitment while six posts were allocated for promotion quota. Process for filling these posts was initiated. The Honourable Administration Committee of the High Court considered the cases of eligible Senior Civil Judges in its meeting held on 13.05.2002 and recommended them for promotion. Accordingly, they were promoted vide Notification dated 22.05.2002. In the meantime, process for appointment through direct recruitment of Additional District and Sessions Judges was also finalized and cases of successful candidates were placed before the Honourable Administration Committee of the High Court and the Honourable Administration Committee in its meeting recommended three candidates including the appellant against the direct quota of Additional District and Sessions Judge B-19, accordingly vide Notification dated 27 March, 2003 a formal promotion order was issued. Thus the ratio of two-third and one-third was fulfilled and at the relevant time, both the quotas received its due share. Thus, the backlog of the promotion quota and direct quota stood exhausted.

12. It happens so that under Access to Justice Program during the financial year 2002-2003 vide order of the Peshawar High Court dated 25.03.2003, fifty seven posts of Additional District and Sessions Judges (BPS-19) were created, after receiving sanction of the Provincial Government vide sanction order dated 4.1.2003. Thus, again under Rule 5 of the Khyber Pakhtunkhwa Judicial Service Rules, 2001 the quota of two-third and one-third was required to be utilized. The record transpires that the Honourable Administration Committee of the High Court in its meeting held on 24.06.2003 considered the cases of eligible Senior Civil Judges (BPS-18) and recommended twenty two judicial officers for promotion and vide Notification dated 25 June 2003, formal order of promotion as Additional District and Sessions Judges B-19 was issued. Similarly, the candidates in the direct appointment quota were also considered and after qualifying the selection process were recommended by the Selection Committee accordingly vide Notification dated 8 October 2003, twenty two candidates were appointed as Additional District and Sessions Judges (BPS-19). Thus, for all intents and purposes 57 posts of Additional District and Sessions Judges newly created vide order dated 25 March 2003 shall have no effect on the earlier selection so made nor the seniority of those nine appointees including the appellant will be in any manner affected there from. It is pertinent to mention here that in view of the creation of posts in bulk through Access to Justice Program, the respondents were benefited, because only recently in the year 2001 they were promoted as Senior Civil Judges (BPS-18) and after the creation of such posts, they were further promoted as Additional District and Sessions Judges BPS-19 vide notification dated 25.06.2003 against the posts, which were created on 25 March, 2003. Thus, the grant of seniority to the respondents on the ground that they were eligible at the time of creation of posts cannot be made a ground for allowing them seniority because their promotion was made so promptly that within a period of three months of the creation of posts, they were benefited there from and as explained above, they were hardly one year plus in BPS-18 at their credit at the time of their promotion to BPS-19 (Now B-20).

13. We are, thus, of considered opinion that the seniority of the appellant shall be considered after six appointments by promotion so made vide Notification dated 22.05.2002 and the subsequent promotion made against the newly created posts of Additional District and Sessions Judges through Access to Justice Program shall have no effect on his seniority.

14. We restrain ourselves from commenting on some of the promotions made pursuant to creation of posts, because as per Government policy for promotion to Grade-19 a minimum length of twelve years service in Grade-17 and above is required but in view of the vacant position and requirement of the High Court, the minimum requirement of length of service was not considered and on this ground too, the determination of the seniority made by the Administration Committee falls to the ground.

15. For the reasons stated above, this and the connected appeal are allowed and disposed of in the above terms. The appellant shall also be considered for promotion as District and Sessions Judge with effect from 19 May, 2011, when his juniors were promoted and he shall be assigned correct seniority in accordance with law. ZC/176/P Appeal allowed.