1988 PLP (C (PLC(CS))

P L D 1983 S C (AJ&K) 31, 1978 S C M R 207, 1979 P L C (C.S.T.) 47, 1986 S C M R 1086, N L R 1978 Services

157. N L R 1979 Services 256, 1985 P L C (C.S.) 951, 1980 P L C (C.S.) 401, 680(2), N L R 1979 Services

208. P L D 1974 S C 344, 1978 P L C77, 1971 P L C 178 1986 S C M R 12, P L D 1.977 S C 599 and PLD1979SC

167. He argued that there was no application, for condonation of delay. Under the provisions of section 5 each day's delay is to be explained.

17. Mr. Abdul Rashid, in replication argued that communication of order dated 31‑7‑1983 or 22‑1‑1983 is not established. According to him, the limitation does not run, unless an order is communicated to the officer, as envisaged by section 4 of the Service Tribunals Act 1975. He contended that there is no proof of communication of order to Chaudhry. Inayatullah and Iqbal. Ratyal.' He referred to the statement of Sheikh Ghulam Muhammad, Administrative Officer, Electricity Department, who denied the receipt of the spare copies of the order dated 31‑7‑1983, in Chief Engineer, Electricity's Office, for distribution to the concerned officers. According to the learned counsel, the oral statements of Muhammad Ashraf and Ali Muhammad do not go to prove the communication. He cited 1985 C L C 937, 940 and 1984 C L C 1009. In the matter of competence of appeal, it was stated that no objection was taken in the pleading by the respondent. Apart from that, the promotion of Muhammad Ashraf Khan to the post of Executive Engineer was not made, after considering the appellants, therefore, according to him, the appeal was competent. He cited 1980 C L C 789 to prove that a void order can be ignored. Mr. Abbasi argued that appointment of Mr. Iqbal Mohiuddin, made on 19‑11‑1975 was wrongly shown to have been made, on the basis of the Public Service Commission's recommendation. In fact, he had not been approved by the Public Service Commission, rather his name appeared in the merit list. The approval of this officer was given, by the Public Service Commission, in 1978, alongwith other 3 officers. In the merit, he possessed the position, lower than the appellant Chaudhry Inayatullah; hence he should be declared junior.

18. Sardar Rafiq Mahmood, counsel for the appellant Muhammad Ilyas Khan argued that communication of order dated 31‑7‑1983 is not established. The statements of Mr. Sheikh Ghulam Muhammad and Ali Muhammad, witnesses produced by the parties contradicted each other's statements, hence a valuable right of appeal cannot be forfeited on the basis of such evidence, which transpires no confidence. He reiterated that seniority should be determined in accordance with the rules, enforced in 1977 as the earlier appointments made on ad hoc basis do not confer any right, for seniority. In the case of Muhammad Ashraf Khan, it was argued that benefit of NPS‑17 allowed to him was also a case of promotion, which was not regular. He cited 1987 P L C 144 to show that up‑gradation of post amounts to promotion and requires the approval of prescribed selection authority, which was lacking in this case.

19. We have considered the arguments of the learned counsel for the parties. The case of seniority inter se Chaudhry Inayatullah, Muhammad Ilyas Khan and Mushtaq Ahmad Gorsi is simple. Their case was considered by the Public Service Commission at one and the same meeting and recommended for appointment. The appointment of Mr. Muhammad Ilyas Khan and Chaudhry Inayatullah was made against clear vacancies on 28‑9‑1978. Mr. Mushtaq Ahmad Gorsi was absorbed on work charge basis but after creation of a post, he was also given a retrospective benefit of regular appointment from 28‑9‑1978. Thus, the date of regular appointment of these 3 officers is one and the same. Under the rules, the appointment on ad hoc basis carries no right for seniority as clearly provided for in rule 23 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service Rules) 1977, reproduced below:‑ "23.‑ (1) When a post is required to be filled, the Appointing Authority shall forward a requisition .to the Selection Authority, immediately after decision is taken to fill the post. (2) After forwarding a requisition to the Selection Authority, the Appointing Authority may, if it considers necessary in the Public interest, fill the post on ad hoc basis for a period not exceeding six months pending nomination of a candidate by the Selection Authority: Provided (i) ................................ (ii) ................................ (iii) ................................ (iv) ...................... (v) ................................ Provided further that ad hoc appointment shall not confer any right on the persons so appointed in the matter of regular appointment to the same post nor the service will count towards seniority m the grade." The appointment of these 3 officers was ad hoc/work charge in view of their appointment order and well as on the face of section 9 of the Public Service g Commission Ordinance. The regular appointment was made after enforcement oft the rules, framed in 1977. The relevant provision governing their seniority is embodied in rule 8, which is reproduced below:‑ "

8. The seniority inter se of persons appointed to post in the same grade in a Functional Unit shall be determined:‑ (1) (a) In the case of persons appointed by initial recruitment, in accordance with the order of merit, assigned by the Selection Authority; Provided that persons, selected for appointment to the grade in an earlier selection shall rank senior to the persons selected in a later selection;" ,In view of the contents of rule 8, the seniority inter se of these 3 officers will be determined on the basis of merit, assigned by the Selection Authority namely; the Public Service Commission. We have also examined the record of the Public Service Commission, as well as the Government order dated 28‑9‑1978, were by the regular appointments of these officers were made. The Government hid by this order accepted the recommendations of Public Service Commission, with out any deviation he sequence in the order of appointment, which conforms to the merit, assigned on 11‑6‑1978 by Public Service Commission, is as under:‑ (1) Inayatullah Chaudhry. (2) Mr. Iqbal Mohi‑ud‑Din. (3) Mr. Muhammad Ilyas. (4) Mr. Mushtaq Ahmad Gorsi.

20. The Government appears to have fallen in error in assuming that only a period of 6. months' service is to be treated as ad hoc, thereafter it was regular, even without the approval of the prescribed Selection Authority. This is a wrong interpretation of Rule

13. A decision of the Azad Jammu and Kashmir Supreme Court in the case of Rafiq Akhtar Chaudhry P L D 1982 AJ&K (S C) 124 is also misconstrued in this respect. Actually; the Supreme Court opined that after expiry of 6 months, any civil servant cannot be deprived of his appointment, without show‑cause notice. This Tribunal has already turned down the case of ‑Mr. Mushtaq Ahmad Gorsi, for the purpose of, seniority, on the basis of ad hoc appointment. It is lawful for the Government to appoint the Civil servants, on any terms and conditions, it likes. The appointment of Mr. Mushtaq Ahmad Gorsi was subject to the approval of Public Service Commission. The appointment of Muhammad Ilyas was on work charge basis, prior to 28‑9‑1978. All appointment make after 24th day of August, 1974 and before coming into force of Public Service Commission (Functions) Rules without reference to Public 1~crvice Commission, were also declared ad hoc. Therefore, the appointment of any of these officers, prior to 28‑9‑1978 does not bestow any right for seniority. It was lawful for the Government to confirm any person in service, from an earlier date from which such officer held any appointment, on officiating basis. No such confirmation order appears to have been ever passed in respect of any of these officers. The contention of Khawaja Muhammad Saeed, Advocate, for assigning seniority from any earlier date, except the cases covered by Explanation to Rule 7(1) does not 6t in the scheme of service laws applied in Azad Kashmir The presumption of confirmation cannot be drawn, without specific order Therefore, the order of merit is the only criteria available, for determination of their inter se seniority. We, therefore, accordingly hold that inter se seniority of these 3 officers shall be determined as under:‑ (1) Inayatullah Chaudhry. (2) Muhammad Ilyas Khan. (3) Mushtaq Ahmad Gorsi.

21. In the matter of Iqbal Mohiuddin, the provisions of section 9(a) do not apply in the sense in which their application is possible in the case of other officers. Section 9(a) and (b) is reproduced below:‑ "9(a) All persons recruited without reference to the Commission to the posts prescribed under section 7 at any time between twenty‑fourth day of August, 1974 and coming into force of the Public Service commission (Functions) Rules framed immediately after promulgation of this ordinance, shall be deemed to be ad hoc appointments and the post held by any such person shall be filled in accordance with the provisions of this ordinance, within such period, not exceeding six months, as may be fixed by the Government by a special or general order; (b) All recruitments other than those mentioned in clause (a) to the posts prescribed under section 7 at any time between twenty‑fourth day of August, 1974, and coming into force of the Public Service Commission (functions) Rules framed immediately after promulgation of this Ordinance shall be referred to the Commission and if in the opinion of the Commission, a person recruited to any such post, is not fit to hold that post, he may be discharged from service;" The appointment, vide order dated 19‑11‑1975 was not made subject to any condition in the order. His case is not of "Appointment without reference to Public Service Commission" so it comes under subsection (b) of section 9 of Public Service Commission Ordinance and had been already examined by the Public Service Commission. His name appeared in the merit list of the candidates, for the post of Assistant Engineer, Electricity, prepared by the Public Service Commission, in 1974. The cases of officers, who were appointed to service after reference to Public Service Commission even though they were not recommended by the Commission, were to be referred only for the purpose of determination of suitability. Mr. Iqbal Mohiuddin was not declared ad hoc, through the order of his appointment, nor any rule, requiring the approval of Public Service Commission was applicable on the relevant date namely; 19‑11‑1975. The Public Service Commission Ordinance enforced later on, only enjoins upon the authority, concerned to have the suitability of these officers, determined afresh, through Public Service Commission. Therefore, such officer could not be deprived of his seniority, as he was found suitable by the Public Service Commission, at the later stage. The requirement of subsection (b) of section 9 of Public Service Commission Ordinance (which has now become an Act of the Assembly) was complied with. This officer thus stands confirmed in service, on the basis of the order of his appointment and the provisions of section 9 of the Public Service Commission Ordinance from the date, he joined the service. He was rightly placed in seniority, above the 3 officers, whose case has been discussed in paragraph 20 of this judgment.

22. It will not be out of place to mention that the constitution of the Commission, which examined the cases on 23rd and 24th July, 1974 was not in dispute. That was lawfully constituted Commission. The Commission; which was constituted subsequently was not lawfully constituted as per opinion of the Supreme Court. There was no legislation, regarding Public Service Commission. On Promulgation of Public Service Commission Ordinance, actually the appointments made on the recommendations of the subsequent disputed Commission were to be re‑examined, but due to bad drafting of the Ordinance, even the cases wherein the appointment orders on the recommendations of the earlier Commission were issued after 24‑8‑1974 were also hit by the provisions of section 9(b). Otherwise there is no justification, for referring the cases, which were considered by the Commission, lawfully constituted. Thus, the re examination of case of Mr. Iqbal Mohiuddin and others, which came up for consideration before the Public Service Commission, even prior to 24‑8‑1974, was not necessary and should not have been brought within the mis‑chief of subsection (b) of section

9. Position of the cases considered by the subsequent Commission is distinguishable that this Commission was constituted lawful authority of the President.

23. In the case of Mr. Muhammad Ashraf, assuming that he continuous appointment from 1‑7‑1976, the date from which he is receiving emoluments and performing duty, in the Electricity Department, he is still. to the appellant Chaudhry Inayatullah as well as to Sardar Muhammad Khan. His case is also not of ad hoc appointment, in view of section 9 of Public Service Commission Ordinance, nor under the rules, enforced in because he was already holding the post in NPS‑17 in the Planning Development Department, when he was transferred to Electricity Department The Public Service Commission's Functions Rules, which took effect from 24‑8‑1974, do not provide for any reference to the Commission, in then transfers to an equal post, rather there is clear exception, for such cases, clear from rule 6, which is reproduced below:‑ "

6. Notwithstanding anything contained in rule 3, the Commission shall conduct test for recruitment to posts which are filled‑ (i) ................................................ (ii) (a) ............... (b) ............... (iii) by transfer of an officer of the Armed Forces or an officer already holding a post on regular basis in equivalent grade under the Government of Azad Jammu and Kashmir Council or under the federal or Provincial Government of Pakistan." The transfer of Mr. Muhammad Ashraf, even if held to have taken effect 1‑7‑1976, requires no action at the hands of Public Service Commission His approval by Public Service Commission in 1981 and the in his case on 20‑1‑1982 are superfluous. He cannot be deprived of hid services for the purpose of seniority from 1‑7‑1976. The claim of M/s. Muhammad I1yas Khan and Chaudhry Inayatullah, who hold regular appointment with effect 28‑9‑1978, merits no consideration. It is not necessary to discuss the appointment of Muhammad Ashraf in the Electricity Department, which had originated on 15‑7‑1974, while disposing of the appeals of Chaudhry inayatullah and Mr. Ilyas Khan. His position, in the impugned order shall, therefore remain undisturbed so far as the appellants arc concerned. On other hand, his case for seniority from 15‑7‑1974 merits consideration.

24. Mr. Muhammad lqbal Ratyal has also brought an appeal against orders dated 22‑1‑1983 and 31‑7‑1983.1Jc had brought an appeal, jointly with Mr. Nazir Ahmad Mir and Muhammad Altaf Khan, on 1‑6‑1986 but later on the applied for the withdrawal of that appeal on 4‑2‑1987. His name thus stood struck off, from the appellants, in that appeal, from the aforesaid date. He did not seek permission of this Tribunal, for bringing fresh appeal. It was argued Khawaja Muhammad Saeed that he is precluded from bringing another appeal, for seniority against Muhammad Ashraf Khan, who was also a party in the previous case. Mr. Abdul Rashid Abbasi argued that Mr. lqbal Ratyal had a right of appeal, after issuance of order dated 22‑1‑1983 as well as after order dated 31‑7‑1983. The earlier appeal was brought against order dated 22‑1‑1983 against order dated `31‑1‑1983, therefore, his right against order dated 31‑7‑1983 is not extinguished. We have noticed that the Appeal No. 320, dated 1‑6‑1986 was brought by Mr. Iqbal Ratyal, jointly with Mr. Nazir Ahmad Mir and Muhammad Altaf Khan, when both the orders had been already passed. The cause of action against order dated 22‑1‑1983 as well. as order dated 31‑7‑1983 is the same. The facts constituting seniority, of the 2 officers are same, for calling in question the order dated 22‑1‑1983 as well as order dated 31‑7‑1983. The mere fact that another order was passed on 31‑7‑1983 has not given Mr. lqbal Ratyal a right, for seniority, nor it has improved his status, in this matter. He could avail of a remedy, either against order dated 22‑1‑1983 or after waiting for the result of his review petition, he could come with an appeal against order dated 31‑7‑1983. No second appeal on the same facts is maintainable, in respect of which a case was closed at an earlier stage. The fact that the order dated 31‑7‑1983 was not in his knowledge is no ground to reopen a matter, which stands closed. The stand taken by the appellant, regarding the knowledge in respect of order dated 22‑1‑1983 is also contradictory. In the earlier appeal he stated that he got the information of order dated 22‑1‑1983 in May, 1986 whereas in the second appeal, he stated that order dated 22‑1‑1983 ‑ came to his knowledge in February, 1983. In fact, he had concealed the fact of his knowledge in the earlier appeal. On being opposed by respondent Muhammad Ashraf Khan, on this point, he realized his weakness and gave up the appeal, for paving out a way for coming up with a different stand with respect to order dated 22‑1‑1983. Whether a case is decided on merit or disposed of on technical basis, ‑it puts an end to the controversy between the parties. The act of giving up of the earlier appeal by Mr. lqbal Ratyal has put an end to his right for a remedy, through the Service Tribunal. His appeal, therefore, merits dismissal. Of course, this order will not stand in his way, if the case of Mr. Muhammad Ashraf is dealt within any other way, in the appeal of Mr. Nazir Ahmad Mir and Muhammad Altaf Khan, by the other bench of the Service Tribunal, before which that case is pending. The decision in that case about the nature of appointment of Mr. Muhammad Ashraf will operate, even in the case of Mr. lqbal Ratyal, because the appointment of these 3 officers has been made on the same date and their case is inseparable.

25. Mr. lqbal Mohiuddin has not challenged the date of appointment of Mr. Muhammad Ashraf, nor any other officer, having a patent case of seniority, against this officer has come up with an appeal against him, therefore, it is not necessary to discuss the date from which Mr. Muhammad Ashraf is entitled to seniority, in this department. Even otherwise his case is complicated and needs interpretation of 'Art. 24, K.S.R., the effect of Public Service Commission Functions Rules and the effect of repeal of Rules of Business 1971. The Court is not supposed to decide a matter, the determination of which is not necessary for the disposal of a case, before it. The term Ratio Decidendi has been discussed by the Azad Jammu and Kashmir, S.C. in this respect, in the case of Raja Muhammad Nial Khan v. Azad Jammu and Kashmir Government. This matter can be examined in detail in an appropriate case, whether for the purpose, his seniority should be determined, with effect from 15‑7‑1974, the date of his first appointment in the department or from 1‑7‑1976 from which he holds the continuous appointment. The entry shown in respect of service of Mr. Muhammad Ashraf in the impugned order, therefore, needs no change at this stage. As a result, the position of Mr. Muhammad Ashraf Khan, lqbal Mohiuddin and Muhammad Rashid shall remain the same, as incorporated in the Government order dated 22‑1‑1983. Chaudhry Inayatullah, Muhammad Ilyas and Mushtaq Ahmad Gorsi shall stand at S.Nos. 3, 4 and 5 respectively.

26. Khawaja Muhammad Saeed, Advocate for the respondents had made casual remarks in respect of appointment of Mr. Nazir Ahmad Mir and Muhammad Altaf Khan and lqbal Ratyal to show that their appointments were also not regular and require examination, by Public Service Commission, as envisaged by subsection (b) of section 9 of the Public Service Commission Ordinance. The appointment order dated 1‑12‑1974, passed in the case of the aforesaid 3 officers is not subject of appeals, before us. It has been otherwise argued as well as noticed by us that their cases were considered by Public Service Commission, although the recommendations of Public Service Commission, made in 1974 were not accepted, in toto, by the President, who was the Appointing Authority, in the case of Assistant Engineers, Electricity, at the relevant time. The worthy President; after the receipt of the recommendations, laid down yard‑stick of his own, m the following form, as there were no departmental service rules, at that time:‑ (a) The persons employed on work‑charge basis, in the department shall be preferred, for regular appointment to all others; (b) the persons who were out of employment, will be preferred to those, who are having appointment in other departments. On the basis of the aforesaid principle, Mr. Nazir Ahmad Mir, Muhammad Altaf Khan and Iqbal Ratyal already working in the departments were appointed. Thus, the recommendations of Public Service Commission stood, overruled to this extent. So far as the requirement of Public Service Commission Ordinance is concerned, it needs no discussion, because no person has come up with a claim, through appropriate proceedings, for seniority against these 3 officers. The Tribunal is not supposed to give finding on an issue, not brought before it, in due process of law. The observation of the learned counsel has, therefore, no bearing with this case. In the matter of Iqbal Mohiuddin, we have already given our view, in the earlier part of this judgment, in response to the arguments of the learned counsel.

27. In the matter of limitation, we considered the arguments of Khawaja Muhammad Saeed, Advocate, for the respondents. The impugned order dated 31‑7‑1983 purports to have been despatched to all concerned but it does not show the address, on which it was communicated to the officers. No presumption of' service, therefore, arises either under C.P.C. or Evidence Act, in such a case. Ali Muhammad, Section Officer, Services Department stated that the copies of the order were despatched to the Chief Engineer, Electricity but no proof of the further service of the letter, on Mr. Inayatullah Chaudhry and Iqbal Mohiuddin has been adduced. Mr. Muhammad Ilyas Khan is shown to have received the copy of the order through some peon. The photo stat copy of the peon book has been produced, but it is not corroborated by the Despatch Register of Chief Engineer's Office. Even if one appeal succeeds on merits, in the matter of seniority, the other persons, whose case is not separable, cannot be deprived of the result. No contradictory decisions can co‑exist, in one and the same case. In order to avoid contradiction, even under Order XLI, Rule 33, C.P.C. a decree can be passed, in favour of a party, who has not appealed against a judgment, as held by our High Court, in the case Ghulam Hussain v. Asila Begum P L D 1978 AJ&K

1. For these reasons, the appeal of Mr. Ilyas Khan cannot be dismissed on the ground of Ahmad Mir and Muhammad Altaf Khan, due to identical facts. His appeal merits dismissal, on the ground of withdrawal of earlier appeal. The objection, with regard to the limitation, therefore, does not sustain. The case law cited by the learned counsel for the parties has been perused but it does not require discussion, in detail, for the view, we have taken.

28. As upshot of the above discussion, the appeal of Mr. Iqbal Ratyal is dismissed. The appeals of Chaudhry Inayatullah and Muhammad Ilyas Khan are accepted to the extent, indicated above. The Government shall maintain seniority, as indicated in paragraphs 19 and 25 of this judgment. There is no order as to the costs. AA./68/Sr. A Order accordingly.