1993 PLP (C (PLC(CS))

SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN): ‑‑This is an appeal by Mr.‑ Rehmat Ali Ahmad, Lecturer, Degree College, Mirpur against the order dated 8‑8‑1990 made by respondent No.l by which the appeal of the appellant was rejected and the seniority list dated 18‑11‑1986 published by respondent No.2 was upheld. In his appeal besides Secretary and Director, Education Department (Colleges), Azad Kashmir Government, the appellant has impleaded 38 Lecturers for seeking his remedy against them.

2. In the memo of his appeal, it is submitted by the appellant that on the recommendations of Public Service Commission he was appointed as Lecturer in the Education Department on 6‑1‑1975 and he is continuing as such till today. A seniority list dated 18‑11‑1986 in which the name of the appellant was placed at serial No.61 was published by the Director of Education Department (Colleges) respondent No.2 and that in the same seniority list a direction was passed on to the enlisted persons to file an appeal before the Director if any of them would feel himself aggrieved by the entries of the impugned seniority list within the period specified. ‑The appellant being aggrieved by the adverse entries in the list submitted an appeal/review petition before respondent No.2. The respondent No.2 instead of deciding the matter of seniority himself forwarded the appeal to respondent No.l who rejected the same by his letter dated 8‑8‑1990 conveyed to the Principal, Degree College, Mirpur on 21‑8‑1990 and communicated to the appellant on 29‑8‑1990. The appellant claims his appeal to be within time from the date of communication of order to him and he has also tiled an affidavit in support of his contention that the impugned order was communicated to him on 29‑8‑1990. The appellant claims that the entry pertaining to him in the seniority list may be set aside and he may be allotted proper position in the list on the following grounds:‑‑ (a) That the seniority of the civil servants is to be determined by the Authority competent to appoint them but in the present case the seniority of the appellant and that of respondents was determined by an Officer other than the appointing Authority. Hence the impugned seniority list is not maintainable in law. (b) That under the provisions of Azad Jammu and Kashmir Education Service Class I Colleges Branch Rules, 1973 (Men's Section) the seniority in case of members of the aforesaid service appointed by initial recruitment was to be determined in accordance with the order of merits assigned to them by the Public Service Commission. It is also provided in that rule of law that a member of this service selected in an earlier selection shall rank senior to the member of service selected in the later selection. But in case of the appellant this rule of law was violated and the members of service (respondents Nos.3 to 40) selected in the later selection were placed senior to the appellant in the seniority in utter disregard of relevant rules of seniority. Apart from that the impugned seniority list was also prepared in violation of Rule 8 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service Rules, 1977) and it was not maintainable on that account too.

3. It is prayed by the appellant that the impugned orders be set aside and the appellant may be held senior to respondents Nos.3 to 40.

4. By a short order of this Tribunal dated 21‑10‑1991, the above‑noted appeal was admitted for regular hearing in this Tribunal and by the same order, the respondents were called upon to submit their objections, if any, in the said appeal. In a separate application it was submitted by Mr. Muhammad Rashid Butt, respondent No.9 that the appeal brought against him was incorrect and was not maintainable in law because he had entered the service of the Education Department long before the appellant. On behalf of respondents Nos.l and 2 it is submitted that the, recommendations of the Public Service Commission on the basis of which the appellant was appointed as Lecturer in the Education Department were set aside by the Government under a Government Ordinance No.190‑LD/84 dated 29‑1‑1984. The appellant having been selected by the Public Service Commission in a later selection and under the order of preference fixed by the Public Service Commission, he was placed at serial No.61. Similar objections were taken on behalf of respondents Nos.3, 4, 6, 8, 13, 18, 23, 25, 28, 29, 31, 33, 34, 35 and 40 through their counsel Kh. Abdus Samad and Syed Nazir Hussain Kazami, Advocates while the rest of respondents were proceeded ex parte.

5. We have considered the arguments as were addressed in this appeal by the learned counsel of each party. We have also examined the impugned orders and the record placed on the appeal file. It is argued on behalf of the appellant that under the rule of procedure a seniority list is always prepared by the Appointing Authority but in the instant case, the seniority list has been prepared and issued under the signatures of Director of Education Department (Colleges) which is not maintainable to be preserved as service record of the members of service in the cadre of Lecturers. In reply arguments, it is submitted by the learned counsel for the respondents that the impugned seniority list has been published by respondent No.2 on the basis of the recommendations of a Committee set up by the Government under No.SE/10704-10/86, dated 2‑11‑1986 and as such the impugned seniority list is maintainable because it has its legal recognition by the Government. There is nothing on the file to show that any committee was set up by the Government for determining the inter se seniority in the cadre of Lecturers. It is, no doubt, true that under rule of procedure the Government alone was competent to determine the inter se seniority of the appellant as well as that of respondents and if at all a Committee was set up by the Government to do that work even then, the Director of Education Department (Colleges) held no powers to issue the same under his own signature without seeking the previous permission of the Government. Under the Rules of Procedure a seniority list is ordinarily issued after calling the objections on a tentative seniority list to be circulated by the Department for the information of the members of a particular service. But in the instant case we find that no such step was taken by the Department and the impugned seniority list was issued without calling objections from the members of Lecturers service and the Director of', Education Department (Colleges) had nominated himself to be the appellate' Authority also if any member of the service would feel himself aggrieved by the entries of the impugned seniority list.

6. Under section 4 of the Service Tribunals Act, 1975 the appellant if aggrieved by an entry in the impugned seniority list was required to avail of departmental remedy before invoking the jurisdiction of this Tribunal but here we find that the appellant was not well‑advised to bring a review petition before the competent authority i.e. in his case was Government. He fled an appeal/review against the adverse entry in the seniority list with the Director (respondent No.2) while he had absolutely no jurisdiction to entertain the same. The Secretary of Education Department to whom the appeal was forwarded had also no jurisdiction to adjudicate the disputed seniority between the present parties. Hence the appeal fails and the same is hereby dismissed. No order as to the costs. A.A./196/SrA Appeal dismissed