2017 PLP (C (PLC(CS)N)

RAJA SAEED AKRAM KHAN, J.

The captioned appeal by leave of the Court has been filed against the judgment of the Service Tribunal dated 14.06.2014, whereby the appeal filed by the respondent, herein, has been accepted.

2. The facts necessary for disposal of this appeal are that the appellants, herein, promoted as Naib Tehsildar against 12% quota reserved for Ministerial Staff of the Revenue, the Rehabilitation and the Stamps, Departments, vide notification dated 15.01.2013. The respondent, herein, feeling aggrieved, challenged the said notification through an appeal before the Service Tribunal. The learned Service Tribunal vide impugned judgment dated 14.06.2014 while accepting the appeal set aside the appointment notification of the appellants and directed the concerned authorities to submit the case of the respondent with others for consideration by the Selection Committee. Hence, this appeal by leave of the Court.

3. Mr. Sadaqat Hussain Raja, Advocate, the learned counsel for the appellants argued that the impugned judgment is based on mis-appreciation of the record which is not sustainable in the eye of law. He submitted that the Service Tribunal is not equipped with the jurisdiction to issue the direction to the authority. In the case in hand, the learned Service Tribunal while travelling beyond the jurisdiction issued the direction to the authority. He referred to the rules known as AJ&K Revenue Department Tehsildar and Naib Tehsildar Service Rules, 1991 and contended that the learned Service Tribunal fell in error of law while not taking into account that principle of seniority-cum-fitness is not applicable in the case in hand. He added that the learned Service Tribunal also failed to consider that 12% quota has been reserved for the appointments of Naib Tehsildars by selection from the Ministerial Staff of Revenue, Rehabilitation and Stamps, departments at least with 5 years experience of Revenue work as specified by the Board of Revenue. In the year 1996, the Board of Revenue issued a policy for conducting test and interview for promotion of Ministerial staff, however, later on the said policy was withdrawn by the Government vide notification dated 09.04.2005. On 17.02.2007, again restored the policy dated 02.06.1996. In continuation of the arguments, he submitted that the notification dated 17.02.2007, was challenged before the Service Tribunal and the Service Tribunal vide judgment dated 18.02.2009, set aside the same. An appeal was filed before this Court against the judgment of the Service Tribunal which was also dismissed vide judgment dated 31.08.2009. He added that according to the notifications dated 09.04.2005, 04.10.2006 and 26.05.2005 which have been restored by this Court, some qualification for promotion has been provided, the respondent does not fulfil the requisite qualification, therefore, he was not eligible to be promoted as Naib Tehsildar, but this aspect of the case remain escaped notice of the Service Tribunal. He further submitted that appellant No.1 was promoted as Naib Tehsildar on officiating basis vide order dated 14.02.2012, whereas, appellant No.2 was promoted on officiating basis as Naib Tehsildar on 08.05.2009. Later on, the appellants were confirmed vide order dated 15.01.2013 on the recommendations of the selection committee. In this way, the learned Service Tribunal has no jurisdiction to substitute the findings of the authority as the authority is the sole judge to determine the suitability of the candidates.

4. On the other hand, Sardar Abdul Raziq Khan and Sardar Muhammad Riaz Khan, advocates, the learned counsel for respondent No.1, strongly opposed the arguments advanced by the learned counsel for the appellants. They submitted that the impugned judgment is perfect and legal which is not open for any interference by this Court. They contended that the respondent is inducted into service on 15.02.1989, whereas, appellants Nos.1 and 2 were inducted into service on 04.06.1999 and 31.08.1989, respectively, therefore, the respondent is senior to the appellants. In this way, it was the legal right of the respondent to be considered for the promotion along with others. They further added that earlier the case was decided by the Service Tribunal vide judgment dated 14.06.2014, but the said judgment has not been challenged by the appellants which has attained finality. They lastly argued that the argument of the learned counsel for the appellants that the Service Tribunal has issued the direction without jurisdiction, is not correct as no such direction for appointment of any particular person has been issued and the Service Tribunal only remanded the case to the authority to consider the case of the respondent along with other candidates. They have relied upon the cases reported as Muhammad Gulshan Khan v. Secretary, Establishment Division, Islamabad and others [PLD 2003 SC 102], Divisional Engineer Phones, Phones Division, Sukkur and another v. Muhammad Shahid and others [1999 SCMR 1524].

5. We have heard the learned counsel for the parties and gone through the record along with the impugned judgment. The perusal of the record shows that the respondent, herein, challenged the notification dated 15.01.2013, through which the appellants, herein, were promoted/confirmed as Naib Tehsildar, before the Service Tribunal. The perusal of memo of appeal filed by the respondent before the Service Tribunal shows that the respondent challenged the promotion of the appellants only on the ground that he is senior to the appellants. The learned Service Tribunal accepted the claim of the respondent and set aside the notification dated 15.01.2013 while recording the following findings:-- "Under the law where a post falls vacant by any mean, the competent authority is required to fill up the post from amongst the senior most official in the department through the selection Authority. In the present case, in the first step, the impugned order is issued on current charge basis and then on officiating basis and lastly confirmed through the impugned order. According to the seniority list the appellant was senior most official in the department. It is clear that the impugned order is issued against the seniority and by non-consideration of the appellant despite the fact that appellant is senior to private respondents. The respondent No.1 was bound to observe the seniority and follow the rules on the subject as well as the legal precedents of Apex Court while issuing the impugned order which is passed against the norms of justice." After going through the findings recorded by the Service Tribunal it transpires that the Service Tribunal also accepted the appeal of the respondent mainly on the ground that he is senior to the appellants.

6. The main argument of the learned counsel for the appellant before this Court was that 12% quota for appointment as Naib Tehsildar has been reserved for the Ministerial Staff of the Revenue Department. Under the AJ&K Revenue Department Tehsildar and Naib Tehsildar Service Rules, 1991 the promotion against the said quota shall be made through selection not through promotion on the basis of seniority. In support of this argument, the learned counsel along with the rules supra referred to the notifications dated 09.04.2005, 26.05.2005 and 04.06.2006 and an unreported judgment of this court titled Muhammad Ejaz Khan and others v. Mushtaq Ahmed Khan and others (Civil Appeal No.56 of 2009, decided on 31.08.2009). To appreciate this argument, we have examined the record minutely. The perusal of the rules supra shows that 50% posts of Naib Tehsildars have to be filled in by initial recruitment, 38% posts have to be filled in from Qanoongos and 12% posts have to be filled in by selection from Ministerial Staff. The relevant portion of the rules reads as under:-- "b) 12% by selection from the ministerial staff of the Revenue, Rehabilitation and Stamps Department with at least 5 years working experience of Revenue work as specified by Board of Revenue." The record reveals that a notification was issued by the Senior Member Board of Revenue on 02.06.1996, through which the condition of test/interview was imposed for the promotion of the Ministerial Staff as Niab Tehsildar, however, this notification was withdrawn vide notification dated 09.04.2005 and through this second notification the Government also made a policy for appointment against the post of Naib Tehsildar. For better appreciation, the relevant portion of the said notification is reproduced as under:-- Thereafter, two different notifications were issued by the Government on 26.05.2005 and 04.10.2006 through which the correction has been made in the notification refered to hereinabove. Only the relevant contents of the notification dated 04.10.2006, are reproduced here which reads as under:-- From the record it postulates that the Government vide notification dated 17.02.2007, withdrawn from the above reproduced policy notifications; also restored the policy notification issued in the year 1996 while mentioning that Experience, Seniority, Rectitude, Antecedents and Academic Qualification shall also be considered for promotion against the post of Naib Tehsildar. The notification dated 17.02.2007, was challenged before the Service Tribunal and the learned Service Tribunal vide judgment dated 1.8.02.2009, set aside the same. Against the judgment of the Service Tribunal the respondent, herein, and others filed appeal before this Court titled Muhammad Ejaz Khan and others v. Mushtaq Ahmed Khan and others (Civil Appeal No.56 of 2009). This Court decided the matter through judgment dated 31.08.2009 while recording the following findings:-- "A perusal of rules reveals that 50% posts of Niab Tehsildars have to be filled in by initial recruitment out of approved candidates on the basis of competitive examination in accordance with their order of merit while remaining 50% posts have to be filled in by promotion. For promotion purpose 38% seats have to be filled in from Qanoongos with minimum 6 years service as such out of which at least 2 years have to be field service. Remaining 12% seats of Naib Tehsildars are reserved for Ministerial Staff of the Revenue Rehabilitation and Stamps Department which have to be filled in by selection on the basis of merit alone with at least 5 years working experience in the Revenue department. No condition of written test and interview has been laid down in these rules. The Senior Member Board of Revenue issued order/policy on 02.06.1996 providing 3 written papers for promotion as Naib Tehsildar from Ministerial Staff. The rules provide competitive examination only for initial recruitment. The rules making power vests in the Government. It is the right of the Government to frame the rules and amend the same when ever required. The Senior Member Board of Revenue was not competent to issue such policy which override the provisions of rules. It may be observed that a policy or notification cannot override the statutory rules framed by the Government under the statute. Instructions and policies cannot amend the statutory rules. It could only be done through amending the same and not by a policy. The policy can be made in the light of rules." In the operative part of that judgment this Court observed as under:-- "The Service Tribunal issued no direction, it has only set-aside the order dated 17.02.2007, in the result notifications dated 09.04.2005, 26.05.2005 and 04.10.2006 are restored and appellants were declared entitled for promotion on the basis of these notification. The result of above discussion is that finding no force in this appeal, it is hereby dismissed with no order as to costs." After going through the controversy involved in the matter, relevant rules, notifications and the previous judgment of this Court, we agree with the argument of the learned counsel for the appellant that the posts of Naib Tehsildar falling in the quota reserved for Ministerial Staff cannot be filled in on the basis of seniority rather the same have to be filled in by selection on the basis of merit alone. The learned Service Tribunal while handing down the impugned judgment only discussed the point of seniority and has not considered the relevant rules, notifications and the previous judgment of this Court. Thus, in such situation, it can safely be concluded that the learned Service Tribunal was not justified to decide the case on the strength of seniority.

7. It is also spelt out from the impugned judgment that the learned Service Tribunal while recording the findings that "the department has issued another seniority list For the year 2007 in which the name of respondent No.5, (appellant No.2, herein), is wrongly entered at serial No.15 by mentioned the date of appointment as 16.10.1987 instead of 31.08.1989" has travelled beyond the pleadings as the final seniority list issued by the department in the year 2007, was not challenged before the Service Tribunal. Moreover, the findings recorded by the Service Tribunal that vide judgment dated 14.06.2014 in appeal No.363 the Service Tribunal has set aside the officiating promotion of respondents Nos.4 and 5 (appellants, herein), are also against the record as from the perusal of the judgment delivered in appeal No.363, shows that appellant No.2, herein, was not party in that case. Another aspect of the case is that the learned Service Tribunal while passing the impugned judgment set aside the notification dated 15.01.2013 as a whole without considering the fact that through the said notification along with the appellants 8 other persons have also been appointed and if the notification is set aside the terms and conditions of the other civil servants who were not party before the Service Tribunal may be affected. Thus, in such state of affairs, the judgment of the Service Tribunal being contrary to the relevant rules, law laid down by this Court in the judgment titled Muhammad Ejaz Khan and others v. Mushtaq Ahmed Khan and others and the record of the case, is not sustainable.

8. Although, we have reached at the conclusion that the impugned judgment is not maintainable, however, to meet the ends of justice, we have also considered the case of the respondent. In our view, the claim of the respondent only to this extent that he fulfilled the requisite qualification for appointment against the post of Niab Tehsildar, but his case was not sent to the Selection Committee, is required consideration. It will be relevant to mention here that although the respondent has not substantiated his aforesaid claim through documentary evidence, but on the other hand, the appellants have also not brought on record any evidence through which it could be ascertained that the respondent was not eligible for appointment against the post of Naib Tehsildar, due to lack of qualification or any other reason. Thus, keeping in view the circumstances of the case, in the interest of justice, the authority concerned is directed that if the respondent fulfills the requisite qualification for appointment against the post of Naib Tehsildar, the authority shall send his case to the Selection Committee for consideration. Moreover, after consideration, if the Selection Committee recommends, the respondent for appointment, then the authority shall proceed with the matter under law. The case law referred to and relied upon by the learned counsel for the respondents is not applicable to the case in hand, therefore, need not be disussed. Resultantly, this appeal is accepted in the manners indicated above and the impugned judgment is hereby set aside. No order as to the costs. ZC/37/SC(AJ&K) Appeal allowed.