1992 PLP (C (PLC(CS))

(h) Civil service

Promotion of a person to a post would be termed as an appointment by promotion. (i) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977-- --R.3

Mode of appointment

Appointment to a post would he made by promotion, transfer or initial recruitment

Word "shall" as used in R.3(2), Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, signified that procedure laid down in the Rules would have to be followed for appointment by promotion. (V) Words and phrases

Word "shall" used with reference to procedure for appointment or promotion, would signify that procedure prescribed in relevant rules had to be followed for appointment by promotion. (k) Civil service

Appointment by promotion

Word "shall" as used in procedure prescribed in rules for appointment by promotion would signify that such procedure had to be followed for appointment by promotion. (l) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977

R.2

Word "post"

Meaning

Word "post" would mean a "post" in connection with the affairs of the Government. (m) Words and phrases

......????? Post"

Word "post"

Meaning

Word "post" would mean a "post" in connection with the affairs of the Government. (n) Civil service

Post in civil service would mean a post in connection with the affairs of the Government. (o) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977

Rr.l, 10 & 12

Promotion _ of civil servant would be dependent upon possession of necessary qualifications and other conditions prescribed for the purpose

Temporary relaxation in such qualifications was, however, permissible. No person would be promoted etc. unless he possessed the qualifications and met the conditions laid down for that purpose. Rule 10 in fact prohibited the Selection Authority from even considering the case of such a person. Rule 12, Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, gives a temporary relaxation that till the framing of the rules laying down the qualifications and other conditions postulated by rule 10, promotion of a civil servant could be ordered but only as a result of a test which would be specified by the appointing authority. The Rules of 1977 are in the nature of fundamental rules which were applicable to all civil servants as is clear from sub-rule (3) of rule 1 and whenever a post was to be filled by appointment by promotion, transfer or deputation or an ad hoc appointment had to be made these rules had been made applicable. These rules eliminate to a great extent arbitrary exercise of powers by the concerned authority in the matter of appointment and promotion of civil servants. The wording in which the Rules have been couched shows, in unmistakable words, that these rules were mandatory. Relevant post could not be legally filled up whether by promotion or otherwise unless there were rules conforming to the requirement of rule 10, Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. (p) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977

Rr.10 & 12

Appointment by promotion

Eligibility

Locus standi--?Minutes of Selection Board indicated that respondent's case was to be considered by the Selection Board alongwith the case of appellant but it was not done because of the fact that Chief Executive ordered that vacancy to be filled up through promotion should be from the cadre to which appellant. belonged

Fact that respondent was otherwise eligible for promotion but was not considered would make him aggrieved person having locus standi to challenge the promotion of appellant and he successfully challenged the same before Service Tribunal

Respondent was thus, competent to raise grievance against the promotion of appellant. A civil servant would only be aggrieved by an order of the departmental authority whereby any of the terms and conditions of his service guaranteed by law or rules had been adversely and prejudicially affected. When the case of the respondent was examined in the light of the above state of law there remained no manner of doubt that the respondent was not a person aggrieved by the impugned order of promotion of the appellant inasmuch as none of the terms and conditions of the service guaranteed to him under the Civil Servants Act or any rules made thereunder had been infringed or violated. (q) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977

Rr.10 & 12

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42

Eligibility for promotion

Both the respondent's and appellant's names were to be considered for promotion by the Selection Board

Chief Executive's directive resulted in non-consideration of respondent's name for promotion

Respondent being the senior most civil servant, was entitled to promotion

Service Tribunal's decision that appointment by promotion of appellant was invalid was upheld by the Supreme Court. Syed Manzoor Hussain Gillani Advocate on 13th February, 1991 and Kh. Shahad Ahmad Advocate on 3rd November, 1991 for Appellant (in Civil Appeal No.35 of 1990). Raja Muhammad Hanif Khan Advocate for Respondent No.l (in Civil Appeal No.35 of 1990). Nemo for Respondents Nos. 2 and 3 (in Civil Appeal No.35 of 1990). Sardar Muhammad Sadiq Khan, Additional Advocate-General on 13th Fabruary, 1991 and Kh. Shahad Ahmad Advocate on 3rd November, 1991 for Appellants (in Civil Appeal No36 of 1990). Raja Muhammad Hanif Khan, Advocate for Respondent No.l (in Civil Appeal No.36 of 1990). Syed .Manzoor Hussain Gillani, Advocate for Respondent No. 2 on 13th Febraury, 1991. Kh. Shahad Ahmad, Advocate on 3rd November, 1991 for Respondent No.2 (in Civil Appeal No. 36 of 1990). Dates of hearing: 13th February and 3rd November, 1991.