2001 PLP (C (PLC(CS))

However, we are constrained to pass remarks when see that the matter got lingered on for years in which many appeals, petitions and judicial appeals were moved by not only one or two incumbents but by almost all the affected persons and all the times the departmental authorities did not show legal acumen as required under the Rules resulting in untold worries and inconvenience to the civil servants and others.

8. It is also averred at para. 10 of the appeal that the impugned order passed in favour of Respondents Nos.4 to 7 vide which they were promoted and appointed to B-16 to the total exclusion of the appellant was in violation of the law and the rules on the subject and being arbitrary, capricious and tainted with mala fide on the part of the departmental authorities needs to be reconsidered and be set aside and that the appellant may be promoted in B-16 with effect from 25-5-1990 when he was due for promotion with all back benefits.

9. A scrutiny of the file reveals that parawise comments have been filed on behalf of Respondents Nos.1 to 3 and they are represented by Mr. Afnan Karim Kundi, Advocates, whereas Respondents Nos.6 and 7 are represented by the learned Advocate, Mr. Shah Abdur Rashid, who has also filed the parawise comments while the parawise comments filed by Mr.Abdur Rashid Awan, Advocate, on behalf of Respondents Nos.5 and 6 do not indicate realistic position. His Power of Attorney is singed by one of the respondents whose signature is available on the Vakalatnama yet it is not legible. However, the Vakalatnama is not signed or thumb-impressed by any other respondent despite being attested by the Advocate. As there is no doubt about Respondents Nos,.6 and 7 being represented by Mr. Shah Abdur Rashid hence the net result comes that Mr. Abdur Rashid Awan would possibly represent Muhammad Hamid Khan and Zulfiqar Ali Mirza, Respondents Nos.4 and 5 respectively and it is to make clear that the parawise comments filed by Mr. Abdur Rashid Awan, Advocate, appear to have been signed by two persons on who had signed the Vakalatnama and the other probably is Muhammad Hamid Khan. This Advocate has worked carelessly. He should note the point for future. As Advocates, being officers of the Court, are legally supposed to be well-versed and relevant in all respects and should not give a chance of any irregularity inclusive of a ambiguity for such-like matters can create legal consequences or at the most, if detected by the opponents, can cause unnecessary delay or unwanted arguments in the face of such an ambiguity.

10. However, a scrutiny of the parawise comment's filed by Mr. Abdur Rashid Awan, Advocate, do not show any substantial point and the objections have been raised therein in routine. Similar is the case of parawise comments furnished by Respondents Nos. l to 3 wherein the objections raised have been based on the routine observations such as that the appellant has no locus standi and that the appointments on "acting charge basis" is not a vested right and an appeal does not lie against it to the Tribunal and, thirdly, that the appellant has not come to the Tribunal with clean hands having failed to present an objective and correct picture of the facts before the Tribunal as his name was shown at Serial No.4 of the Seniority List when he was declared qualified in December, 1995 and the Seniority List relied upon by the appellant is out-dated and incorrect.

11. Before commenting on the parawise comments of Respondents Nos.5 and 6 represented by Mr. Shah Abdur Rashid, Advocate, it is considered' advisable to refer to the rules on the subject framed for conducting examination in respect of the Inspectors Working under the administrative control of the Secretary, Azad Jammu and Kashmir Council Islamabad, Collector, Central Excise-cum-Commissioner of Income-tax, Muzaffarabad, Azad Kashmir, and in this respect the earlier rules are contained in Government Order No.193 of 1962, dated 5-4-1962 while the subsequent are contained in Notification No. E.11.1/5/80-AJKC, dated 2-5-1994. The earlier notification/order, dated 5-4-1962 required:-- Pass percentage shall be 33% in each paper and 40% in the aggregate. Three chances will be given to each candidate. Those who pass the Examination by higher standard i.e. they get not less than 50% of the marks will be eligible for promotion to the higher cadre. No official will be given increment or promotion unless he passes this Departmental Examination. Those who have already qualified in the Departmental Examination of the Customs and Excise Department shall be exempt from paper I and those amongst them who are above the age of 50 on 1st January, 1962 shall be exempt from passing the Departmental Examination.

12. However, the Notification, dated 2-5-1994 lays down:-- (a) method of appointment, and (b) qualifications, experience, age limits and other conditions for appointment to the post of B-16 under the heading "Conditions for Promotion" at Serial No.3, relating to promotion to posts and the posts of Income-tax-Officer-cum-Superintendent Excise/Assistant Excise and Taxation Officer as follows:-- "(i) that he must have five years' service in BPS-14 as Inspector, Income-tax-Officer-cum-Excise and Taxation (B-14)/Deputy Superintendent, Central Excise (B-14); and (ii) he must have passed the Departmental Examination."

11. A glance at the earlier order of 1962 as well as the subsequent rules (if 2nd May, 1994 duly promulgate under sub-rule (2) of rule 3 of the Civil Servants (Appointment, Promotion and Transfer Rules, 1973, as adopted, reveals that under the formal order of 1962 the requirement was 50 aggregate marks whereas in the subsequent rules/notification, dated 2-5-1994 no such requirement was laid down. The incumbent, however, shall have to pass the Departmental Examination.

12. Legally, on an identical subject, the earlier rules are superseded by a subsequent legislation but in the instant case the subsequent notification, dated 2-5-1994 does not contain any specific provision whereby the earlier order of 1962 was superseded. However, one fact is made clear that the law does not intend to afford an occasion for conflict enactments/rules but in such-like situations the earlier enactment/rule by construction and tacit implication of the law stands superseded by a subsequent law/rules for avoiding conflict of opinion in different matters. This aspect has earlier been examined by two legal forums i.e. by the Honourable Supreme Court of Azad Jammu and Kashmir vide its judgment, dated 25-3-1997 and the High Court of Azad Jammu and Kashmir vide its judgment, dated 31-5-1997 respectively.

13. A perusal of these two judgments indicates that both have taken identical and similar views in respect of the interpretation of the said order sated 5-4-1962 and rules promulgated on 2-5-1994. The view bit the subject as contained in the High Court's judgment, dated 31-5-1997 though identical in assence yet they are not properly worded and styled as against the views expressed in the Honourable Supreme Court's judgment, dated 25-3-1997 which leave no scope for ambiguity and as such we can pronounce with full courage and force that the subsequent Notification, dated 2-5-1994 holds the field after promulgation of Azad Jammu and Kashmir Interim Constitution Act, 1974 whereunder the subject of Income-tax was given/came under the purview of the Legislative and Executive Authority of the Azad Jammu and Kashmir Council whereas prior to that Income-tax Department was part of the Azad Government of the State of Jammu and Kashmir. It has clearly been declared that the officers were not required to pass the Examination in higher standard i.e. 50% marks but simply the passing of the Departmental Examination is required as laid down at Serial No.(ii) of para.10 of this judgment and with this we revert back to the parawise comments framed by the learned Advocate, Mr. Shah Abdur Rashid, on behalf of Respondents Nos.6 and 7, i.e. Muhammad Khan and Abdul Latif, respectively.

14. A scrutiny of Para.1 of the parawise comments shows that the seniority position of the incumbents has been admitted. Para. 1 of the comments is reproduced for ready reference and convenience sake. It reads:-- "The facts of the case are that seniority position of the appellant and respondents Nos.4 to 7 in B-14 was as follows:-- (i) Appellant, Muhammad Nazir Abbasi. (ii) Abdul Latif, Respondent No.7. (iii) Muhammad Khan, Respondent No.6. (iv) Zulfiqar Ali Mirza, Respondent No.5. (v) Muhammad Hameed Khan, Respondent No.4." He has further agitated the para.8 of his parawise comments that:-- "Respondent No.7 challenged the order of the Service Tribunal by way of Appeal No.86 of 1997 before the Supreme Court of Azad Jammu and Kashmir which was accepted and the Hon'ble Supreme Court held in substance that rules of 1994 were applicable which were made (properly enforced) on 2-5-1994, whereunder the passing of Departmental Examination only was the necessary requirement and that Respondent No.7 having passed the said examination before the promotion of respondents Nos.4 and 5 was entitled to be considered for promotion in preference to them on the basis of his seniority to the lower grade. " (Lining is ours)

15. In para.9 it is stated that:-- "Respondents Nos. 4 and 5, challenged the order of the Service Tribunal in Appeal No.263(R) of 1996 decided in favour of Respondent No.6 before the Supreme Court by way of Appeal No.82 of 1996, but the same was dismissed by the Hon'ble Supreme Court. (Copy has been annexed to the connected Appeal N0.842(R) of 1997. ") Pursuant to the order of the Honourable Supreme Court Respondents Nos.1 to 3 annulled the notification, dated 26-9-1995 regarding promotion and appointment of Respondents Nos.4 and 5 on Acting Charge Basis and simultaneously by another notification of even date Respondents Nos.4 to 6 were promoted as Income-tax Officer/Superintendents, Central Excise (B-16) with immediate effect.

16. Now coming to Appeal No.841(R) of 1997 (Abdul Latif v. Secretary, Azad Jammu and Kashmir Council and others) represented by Mr.Shah Abdur Rashid, Advocate, we find that in its Para.l it has been submitted that the inter se seniority of the appellant and Respondents Nos.3, 4 and 5 i.e. Muhammad Hameed Khan, Zulfiqar Ali Mirza and Muhammad Khan in B-14 was as under:-- (i) Abdul Latif, Appellant. (ii) Muhammad Khan, Respondent No.5. (iii) Zulfiqar Ali Mirza, Respondent No.4. (iv) Muhammad Hameed Khan, Respondent No.3. Similar position has also been taken by him in his Appeal No.842(R) of 1997 titled Muhammad khan v. Secretary, Azad Jammu and Kashmir Council and others. We are grateful to him for his consistent realistic and legal approach as required under the law.

17. Under the provisions of the Civil Servants (Appointments, Promotion and Transfer) Rules, 1973 appointment on "Acing Charge Basis" is made when the officer/official is eligible for appointment to the post that lacks the specified length of service, then in that event his appointment will be made on "Acting Charge Basis" but a question arises as to how long he will continue on "Acting Charge Basis", the short answer to which is that as the deficiency of length of service remains no longer in existence. As a matter of policy civil servants need not be lingered on for an indefinite period of Acting Charge appointment and the moment the requisites length of service is completed there appears no further justification for continuance of their Acting Charge appointment and secondly Acting Charge Appointment must be given to persons who are senior most as per the Seniority List and in this respect the appointing authority has got no discretion at its sweet-will. Such discretion needs to be exercised judiciously based on merit. In the instant case this discretion has not been strictly exercised in accordance with the seniority assigned to the incumbents involved in these appeals and thirdly such civil servants on promotion to the higher posts retain their inter se seniority as in the lower posts under rule 3(b) of the Civil Servant (Seniority) Rules, 1993 unless some one is superseded for valid reasons legally.

18. It has been held in 1983 SCMR 609 as well as in 1986 PLC (CS) 637 that in the event of completion of the requisite length of service the Acting Charge appointment/promotion shall be considered as regular and the long posting of civil servants on Acting Charge Basis was deprecated in 1997 SCMR 1730, relevant at page 1739, and the Establishment Division warned to note it for future compliance/guidance. Similarly it has been held in 1991 SCMR 2330 that promotion on Acting Charge Basis does not confer any right on an incumbent for regular promotion or cloth him with eligibility for regular promotion if not otherwise fit under the rules. Regarding the back benefits it -has been held in 1985 SCMR 1394, 1994 SCMR 1334 and 1998 SCMR 736 that an incumbent if otherwise found eligible and fit for promotion shall be given promotion with back benefits even after retirement (in the last judgment, i.e. 1998 SCMR 736).

19. Directions to Departmental Authorities for avoiding Frivolous litigation and causing inconvenience to Litigants

It has been held by the Honourable Supreme Court of Pakistan in 1995 SCMR 429 (Para.10) that false and frivolous litigations shall .be avoided in Courts and consequently departmental authorities should take utmost care that litigation time and again is not resorted to but in the instant case the limit has been exceeded to the breaking-point at the cost of the litigants who twice knocked at the doors of this Tribunals by two sets of appeals against the remaining involved in the promotion of Acting Charge appointment once before the Honourable Supreme Court of Azad Jammu and Kashmir and then to the Honourable High Court of Azad Jammu and Kashmir and now again ail the players in the game are standing in this Tribunal. Who is responsible for all this Inconvenience caused to respectable citizens of Azad Jammu and Kashmir ;whose financial position is not as sound as residents bf Pakistan. In our considered: view the answer fits on unwarranted approach adopted by official' Respondents Nos. l to 3 who probably consider themselves to be above law but it is not so legally.

20. With respect to Appeal No. 878-R of 1997 titled Mirza Zulfiqar Ali v. Secretary, Azad Jammu and Kashmir Council etc., it is observed that the appellant stands promoted on Acting Charge appointment by Respondents Nos. l and 2 and as such the impugned order need no separate discussion for the detailed reasons already given above which equally apply to his case He is not an exception to the sated reasons above.

21. Pursuant to the aforesaid detailed discussion and analysis of the salient features of the appeals we axe constrained to accept the appeal of Muhammad Nazir Abbasi and direct that he shall be promoted from 25-5-1990 on regular basis with all back benefits. Similarly official respondents are directed to appoint all the incumbents to B-16 on regular basis from due dates keeping in view their inter se seniority as in the lower posts i.e. BPS-14 which seniority will remain in tact in case of their promotion to BPS-16 unless someone has otherwise been adversely affected but no such adverse material is available on the record and as such their inter se seniority as in the lower grade i.e. BPS-14 as Inspector, Income-tax-cum Excise and Taxation will remain in tact as required under .rule 3(b) of the Civil Servants (Seniority) Rules, 1993. 22. -All the appeals are hereby disposed of in tilt, above terms with no order as to costs. All concerned may be informed accordingly. H.&T.1273/ST/F Appeal accepted.