1988 PLP (C (PLC(CS))

4. We considered the arguments for the learned counsel for the parties and perused the record. Since the appointment in question has been made on 7‑5 1981, therefore, the rules framed, by Government of Azad Jammu and Kashmir, in 1979, will be applicable, to the instant case. The rules, made in Punjab, even if applicable, in Azad Jammu and Kashmir, by any stretch of imagination, stand repealed on the enforcement of new rules. Provisions, relating ro the appointment to the post of Oanoongo, as embodied in Rules 5 and 7 of the Azad Jammu and Kashmir, Qanoongo Service Rules, 1979 are reproduced below:‑‑ "5 Method of recruitment:‑‑(1) Recruitment to the service shall be made:‑‑ (a) by initial recruitment; or (b) by promotion. (2) One‑third of the vacancies, in the posts of Qanoongos shall be filled by initial recruitment and the remaining vacancies in such posts shall be filled by promotion where the vacancies occur; (3) Vacancies in the posts of Oanoongos to be filled by initial recruitment' shall be reserved for bona fide residents of the district, where the vacancies occur.

7. Qualification.‑‑(1) No person shall be appointed to a post, in the service by initial recruitment unless‑‑ (i) he is accepted as Qanoongo candidate by the Collector of the district of his domicile; (ii) he has obtained the certificate of efficiency prescribed by the Director; (iii) his name is borne on the list of Qanoongo candidates maintained by the Collector in accordance with the instructions, issued by the Board of Revenue from time to time; (iv) no person shall be appointed to the service unless he has passed the Secondary School Certificate Examination from a Board of Intermediate and Secondary Education, established by law, in Azad Jammu and Kashmir or Pakistan. (2) No person, not already in Government service, shall be appointed to the service, unless he produces a certificate of character from the principal academic officer of the academic institution last attended, and also certificates of character from two other responsible persons, not being his relatives, who are well‑acquainted with his character and antecedents." Rule 5 of the prevailing rules, provides the method for appointment to the post of Oy3noongo. In view of the provisions of sub‑rule (1), the appointment can be made, either by initial recruitment, or by promotion. Sub‑rule (2), restricts the number of vacancies, to be filled, by initial recruitment to the one‑third. Rule 7, reproduced hereinbefore, purely relates to appointment, by the initial recruitment. Mr. Bagh Hussain, appellant was in service as Patwari, since 1954, g therefore; his appointment as Oanoongo, falls in the category of promotion. There was no provision, in the rules of 1979, regarding the qualification or candidature, in respect of the appointment, to be made, by promotion. The provisions of Rule 7, do not apply to the promotion cases. The argument of Mr. Liaqat Ali Khan that the appellant was not matriculate and that his name was removed from the list of candidates in 1976, does not carry any weight on the face of the provisions of rules, enforced in 1979.

5. An amendment has been made, in the rules, on 20‑6‑1982, whereby clause (iv) has been entered after clause (iii) of sub‑rule (1) of Rule

7. This relates to the qualification. Since rule 7, applies to the initial recruitment, therefore, in view of the controlling provision of sub‑rule (1), which reads as "(1) no person shall be appointed to a post in the service by initial recruitment unless", even clause (4), inserted on 20‑6‑1982, vide Notification No. S&GAD/9984 93/82, dated 20‑6‑1982, will not apply to the instant case, because the appellant had been promoted on 7‑5‑1981 and the National Pay Scale No. 6 was sanctioned, in his favour on 30‑3‑1982, prior to this amendment. It appears that the Notification dated 20‑6‑1982 is‑ badly drafted. The number of clause is wrongly assigned and it should have been in fact sub‑rule (3), if it was intended to prescribe, qualification for promotion cases as well. Again, it is reiterated that the promotion of the appellant would nevertheless remain un‑affected, even in that case, because it was made earlier than this amendment.

6. Two facts, which pre‑dominantly influenced the mind of the learned Commissioner are the application of the rules, regarding qualification and the candidature, in the case of the appellant. The date of enforcement of the rules was not perhaps in his mind. Similarly, no distinction has been drawn, by him between the case of a promotion and the case of initial recruitment. Rule 7, already discussed above was wrongly applied. The appellant was illegally expected to have a qualification., which was never prescribed by the rules, for the promotion.

7. The other contention of Mr. Liaqat Ali is that on the basis of appointment of respondent No. 3 to the post of Mahasab Tehsil, on 22‑2‑1979, he should have been given preference, over the appellant. This argument is not correct because the appointment to the post of Mahasab Tehsil was in NPS‑5 and the appellant was also in NPS‑5 as Patwari. Apart from this, the post of Mahasab is in the clerical cadre and does not in any way create a right for appointment to the post of Qanoongo. It was not even at par, with the post of Oanoongo, under the rules. The second argument, advanced for preference, was the matriculation examination. The appellant also passed the Matric later on. If we compare the experience of the appellant, from 1954 to 1964, with the qualification of the respondent, who was Matric, at that time of promotion, with the appellant, who was Middle, the weight is heavier on the side of the appellant. It could not, therefore, be a cause of preference. The Collector was authority, competent to make the appointment. Ordinarily, no appeal would lie to the Commissioner, in the promotion cases, under the Azad Jammu and Kashmir Civil Servants (Appeal) Rules 1982, in the matter of determination of fitness, except where the eligibility of a person is questioned. Proper authority, to determine the fitness is the Collector. We ‑have otherwise observed that the order of the learned Commissioner was passed on misconception, regarding qualification and the candidature, therefore, such an order cannot sustain. The counsel for the respondent No. 3 had also argued that under the rules, applicable in Punjab, a person on the candidature list has to be removed, after attaining the age of

40. We have already observed that rules of Punjab no longer hold field, ether for guidance or as of persuasive value, in Azad Jammu and Kashmir, after the enforcement of Azad Jammu and Kashmir Qanoongo Service Rules, 1979. The argument is, thus without a substance. The order of Secretary Revenue also, stands at the structure, built up at the level of the Commissioner and nothing has been said by him on merit, therefore, this cannot be upheld. No other point has been argued before us, except that the appellant also produced a copy of order of his appointment as Girdawal Qanoongo, in the staff of the Custodian, which has been placed on record.

8. As upshot of the above discussion, the orders' passed by the Commissioner on 15‑8‑1983 as well as that passed by the Secretary Revenue, on 4‑11‑1985 are set aside and the appellant shall be treated to have been rightly appointed as Girdawar Qanoongo, in NPS‑6, with effect from 7‑5‑1981. In circumstances of this case, we make no order as to the costs. A.A./66/Sr.A Appeal accepted.