2018 PLP (C (PLC(CS)N)

GHULAM MUSTAFA MUGHAL, J.

The captioned appeal by leave of the Court is directed against the judgment passed by the Service Tribunal on 16.11.2015 in Service Appeal No. 982 of 2011.

2. Arbab Shaheen, respondent No.1, herein, filed an appeal under section 4 of the Azad Jammu and Kashmir Service Tribunals Act, 1975 against the order dated 1.8.2011 before the Service Tribunal on 29.10.2011, through which the seniority list of Naib Tehsildars has been issued. It was claimed that the respondent, herein, is permanent employee of the Revenue Department of Azad Jammu and Kashmir and is serving in the department of Ushar and Zakat, District Bagh. He was promoted vide order dated 31.8.2004 on current-charge-basis. Vide order dated 10.4.2006, he was appointed on officiating basis from the date on which he was appointed on current-charge-basis. It was claimed that on 1.9.2009, the respondent, herein, was confirmed as Naib Tehsildar subject to the approval of the departmental selection committee and after this he was confirmed as such on 30.8.2010 with the retrospective effect. His confirmation was given retrospective effect from the date of his current-charge appointment i.e. 31.8.2004. It was claimed that the official respondents have issued the seniority list of Naib Tehsildars in the year 2010 and the name of the respondent, herein, has wrongly been entered at serial No.65 of the seniority list by ignoring his objections despite of the fact that the respondent was at serial No.38 in the seniority list of the Naib Tehsildars pertaining to the year 2010. It was claimed that as the seniority list dated 1.8.2011 is contrary to the earlier seniority list of the Naib Tehsildars pertaining to the year 2010, therefore, the same is liable to be set aside. His precise case was that it was enjoined upon the official respondents to enter his name in the seniority list of Naib Tehsildars after the name of Muhammad Azam. The appeal was contested by the respondents, therein, by filing separate written statement/objections. In the written statement filed on behalf of respondents Nos.9, 10, 23 and 25 before the Service Tribunal, it was claimed that the seniority list of Niab Tehsildars for the year 2010 was issued on 1.8.2011. It was further claimed that under section 4 of the Service Tribunals Act, 1975, the appeal is to be filed within 90 days after the date of issuance so the appeal is time-barred and liable to be rejected on this ground. It was further stated that as the appellant-respondent before the Service Tribunal was appointed firstly as Naib Tehsildar on current-charge-basis and secondly on officiating basis which appointment confer no right as is evident from the orders appended with the memo. of appeal. It was further claimed that as respondents Nos.9, 10, 23 and 25 were promoted on the recommendations of the selection committee on regular basis vide orders dated 8.8.2006 and 9.8.2006, respectively, therefore, they are senior. The other respondents also refuted the claim of the appellant-respondent, herein, by filing separate written statement. The grounds are identical need not be reiterated separately. After necessary proceedings vide judgment under challenge dated 16.11.2015, the learned Service Tribunal accepted the appeal and directed the official respondents to enter the name of the appellant-respondent, herein, at serial No. 37 instead of serial No. 65 of the seniority list.

3. Sheikh Masood Iqbal, the learned Advocate appearing for the appellants, vehemently argued that the name of respondent No.1, herein, was properly entered in the seniority list vide order dated 1.8.2011 by the competent authority and his claim of seniority on the basis of current-charge/officiating appointment from 31.8.2004 was illegal and unfounded, hence, the Service Tribunal cannot give a direction to the competent authority to enter the name of respondent No.1, herein, at serial No. 37 of the seniority list. The learned Advocate argued that the learned Service Tribunal was not competent to issue any direction, hence, the order is erroneous, illegal and liable to be recalled. The learned Advocate further argued that the seniority has been fixed by the competent authority in light of the judgment of this Court rendered in civil appeal No.73 of 2007 titled Syed Zulfiqar Ali Shah and 2 others v. Qaiser Aurangzeb and 5 others, decided on 4.9.2008, in which it was commanded by this Court that the seniority can be fixed from the date of regular appointment in the higher grade and the same cannot be ordered retrospectively. The learned Advocate submitted that in pursuance of the judgment of this Court, a circular was issued by the Board of Revenue on 23.9.2011, quoting therein the relevant observation, hence, the order under challenge was passed on the basis- of the judgment of the apex Court cannot be recalled by the Service Tribunal. The learned Advocate argued that on 31.8.2004, respondent No.1, herein, was appointed on current-charge-basis against the post of direct quota as Naib Tehsildar and subsequently, vide order dated 10.4.2006, his appointment was made on officiating basis. He was confirmed on the recommendation of the selection committee on 30.8.2010, hence, he cannot claim the seniority against the appellants from an earlier date either 31.8.2004. The learned Advocate argued that the judgment of the Service Tribunal, whereby, the retrospective seniority has been given to the appellant-respondent is violative of section 7 of the Azad Jammu and Kashmir Civil Servants Act, 1976 as well as the rules made therunder. The learned Advocate in support of his submission placed reliance upon the cases reported as Muhammad Ilyas Khan and 6 others v. Sardar Muhammad Hafeez Khan and 3 others [2001 PLC (C.S.) 445], Muhammad Arshad Khan Tehsildar District Bagh and others v. Azad Government of the State of J&K through its Chief Secretary Muzaffarabad and others [2000 PLC (C.S.) 247], Ejaz Ahmed Khan and another v. Mehboob Ahmed and 2 others [2005 SCR 242], Asad Mahmood Malik v. Azad Jammu and Kashmir Government and 4 others [2009 SCR 129] and Syed Subtain Hussain Kazmi, Tehsildar presently posted at Bagh Development Authority and 2 others v. Syed Mumtaz Hussain Kazmi, Naib Tehsildar presently posted at office of Deputy Commissioner, Bagh, Haveli and 5 others [2013 SCR 889].

4. Raja Khalid. Mehmood Khan, Advocate, appearing for respondent No.1, vehemently argued that as the respondent was confirmed and his confirmation has been given retrospective effect, therefore, he was entitled to be listed in the impugned seniority list at serial No.37 instead of serial No.65 as per departmental rules and the seniority list, therefore, was illegal and erroneous, hence, the same has rightly been ordered to be modified by the Service Tribunal. The learned Advocate argued that the Service Tribunal has exclusive jurisdiction to pass any order in respect of the terms and conditions of the service of the civil servants and a direction for correction of the seniority list is within the jurisdiction of the Service Tribunal, hence, it cannot be said that no such order can be issued by the learned Service Tribunal. The learned Advocate further argued that the law is well settled that no direction can be issued by the High Court in respect of listing a civil servant in the proper place in the seniority list as has been held in the case reported as Muhammad Tariq Amin and 3 others v. Muhammad Hussain and 3 others (1999 PLC (C.S.) 941).

5. Mr. Saadat Ali Kayani, Additional Advocate-General, appearing on behalf of private respondents Nos.2, 3 and 4, vehemently argued that this Court while deciding Civil Appeal No.73 of 2007 titled Syed Zulfiqar Ali Shah and 2 others v. Qaiser Aurangzeb and 5 others, decided on 4.9.2008, has already ruled that the retrospective effect cannot be given to the promotion where the orders effect the rights of seniority of the other regularly promoted civil servants. The learned Additional Advocate-General further argued that a civil servant can only be given monitory benefits on the basis of retrospective effect not the seniority. In support of his contention, the learned Additional Advocate-General has relied upon the case reported as Ejaz Ahmed Khan and another v. Mehbood Ahmed and 2 others [2005 SCR 242]. The learned Additional Advocate-General further argued that the impugned judgment of the Service Tribunal in the present case runs counter to the dictum of this Court, therefore, while accepting the appeal the judgment passed by the learned Service Tribunal may be vacated.

5. We have heard the learned Advocates representing the parties and also gone through the record of the case. A perusal of the record reveals that vide order dated 31.8.2004, the private respondent, herein, was appointed on current-charge-basis as Naib Tehsildar against one of the posts reserved for initial recruitment. Vide order dated 10.4.2006, his appointment was made on officiating basis. On 30.8.2010, he was promoted on regular basis on the recommendation of the respective selection committee. Under law, the seniority can be claimed by a civil servant in a grade from the date of regular promotion. The anti-dated seniority cannot be given to a civil servant on the basis of an order of appointment which is temporary in nature cannot confer any right except pay protection. The controversy hardly required any deliberation in view of the judgment of this Court rendered in Civil Appeal No.73 of 2007 titled Syed Zulfiqar Ali Shah and 2 others v. Qaiser Aurangzeb and 5 others, decided on 4.9.2008. After considering the rule and the case law on the subject, it was opined that the anti-dated regularization of the appointment of an incumbent shall not affect the seniority position of the civil servants who have regularly been promoted. Reliance in this case was placed on a full bench judgment of this Court titled Muhammad Arshad Khan Tehsildar District Bagh v. Azad Government and others reported as [2000 PLC (C.S) 247], wherein this Court in paragraph 11 of the judgment has concluded as under:- "

11. The next question pertains to the condition of officiating appointments. It is evident from sub-rule (1) of Rule 13 of Rules that officiating appointment can only be made if the post falls vacant as a result of deputation, leave or appointment on acting charge basis of a regular incumbent or is reserved under the rules to be filled by transfer. In the present case it is nobody's case that the post against which 17 persons were promoted on officiating basis fell vacant due to any of the aforesaid eventualities. Rather the said posts appear to have been reserved for direct recruitment. If the posts fell vacant due to retirement of previous incumbents or the same were newly created, the same could not be filled in on officiating basis under Rule 13(1), similarly, under sub-rule (3) of Rule 13, the officiating promotion would not confer any right of promotion on regular basis and same is liable to be terminated as soon as a person becomes available for promotion on regular basis. Therefore, it cannot be said that officiating promotion of some of the respondents was envisaged under rules or same could be made basis for giving ante-dated promotion to the said incumbents."

6. In view of the above pronouncement of this Court, no further deliberation is required. The seniority of the contesting Naib Tehsildars, herein, issued on 1.8.2011 by the competent authority was in fact issued in pursuance of the law laid down by this Court in the above mentioned case, therefore, the Service Tribunal was not competent to direct the competent authority to enter the name of respondent No.1, herein, at serial No.37 of the seniority list in light of his temporary appointment dated 31.8.2004. Under section 42-B of the Azad Jammu and Kashmir Interim Constitution Act, 1974, any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciate a principle of law, be binding on all the Courts in the Azad Jammu and Kashmir. The learned Service Tribunal, therefore, cannot violate and bypass the pronouncements mentioned hereinabove especially so when the impugned seniority list issued in accordance with law laid down by this Court. The upshot of the above discussion is that this appeal is accepted and the judgment passed by the Service Tribunal on 16.11.2015, in Service Appeal No. 982 of 2011, is hereby recalled. The appeal filed on behalf of respondent No.1 is hereby dismissed concluding therein that the competent authority has rightly issued the seniority list of the contesting civil servants vide order dated 1.8.2011. No order as to costs. ZC/63/SC(AJ&K) Appeal allowe