1999 PLP (C (PLC(CS))

BASHARAT AHMAD SHAIKH, J.‑‑‑The appellant, Abdul Latif, was Inspector‑cum‑Deputy Superintendent in B‑14 in the Taxation Group under the Azad Jammu and Kashmir Council when on 26th of September, 1995 respondents Nos. 3 and 4, Zulfiqar Ali Mirza and. Muhammad Hameed Khan, were promoted to the posts of Income Tax Officer‑cum -Superintendents, Central Excise, B‑16, on acting charge basis. This order was challenged by the appellant by filing appeal before the Federal Service Tribunal after exhausting departmental remedy. His appeal has been dismissed. He has now filed this appeal by leave of the Court.

2. We have heard Shah Abdur Rashid, Advocate in support of the appeal. Ch. Muhammad Afzal and Raja Hassan Akhtar argued the case on behalf of the respondents.

3. The inter se seniority of the contesting civil servants as Inspectors (B‑14) is not in dispute. The appellant was not considered for promotion on the sole ground that, although he had passed the departmental examination, he had not obtained 50% or more marks. The Service Tribunal has upheld the view adopted by the departmental authorities that the condition in order to qualify for promotion an Inspector must obtain. 50% or more marks in the departmental examination was still in force and had not become inoperative.

4. Initially Income Tax Department was a part of the Azad Government of the State of Jammu and Kashmir but, with the promulgation of the Azad Jammu and Kashmir Interim Constitution Act. 1974, the subject of Income Tax was given within the purview of the legislative and executive Authority of the State of Jammu and Kashmir Council. In the year 1962 the Azad Government of the State of Jammu and Kashmir laid down in Government Order No. 193 of 1962, dated 5th of April, 1962 the syllabus for departmental examination of Inspectors. It was also provided in the aforementioned Government Order that, although pass percentage in the said examination shall be 33% in each paper and 40% in aggregate. Inspectors who pass the examination by higher standard, namely, they get not less than 50% of the marks will be eligible for promotion to higher cadre. In 1994 Azad Jammu and Kashmir Council vide Notification, dated 2nd of May, 1994 laid down the method of appointment, qualifications and other conditions for appointment to posts in the Taxation Group carrying BPS‑16 and, above. Inter alia the following conditions of eligibility from the post of Inspector Income Tax‑cum‑Deputy Superintendent (BPS‑14) were laid down:‑‑ "(i) 5 years service in BPS‑14, and (ii) have passed the departmental examination. "

5. The short question involved in the appeal can be resolved by deciding whether the Notification of 2nd of May, 1994 is a self‑contained provision or whether it has to be read in continuation of Government Order of 5th of April, 1962. The Notification o: 2nd of May opens with these words:‑‑ "In pursuance of sub‑rule (2) of rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, as adopted, the following method of appointment, qualifications, experience, age limits and other conditions are laid down for appointment to the under mentioned posts . ........... ....... ...... ........ .. . .. . .. .. . .

6. Sub‑rule (2) of rule 3 of the Rules 1973 under which this notification was issued is to the following effect:‑ "(2) The method of appointment and the qualifications and other conditions applicable to a post shall be as laid down by the Ministry or Division concerned in consultation with the Establishment Division." It is clear from sub‑rule (2) that the Azad Jammu and Kashmir Council is empowered to lay down qualifications and other conditions for appointment. The Notification of 2nd of May, 1994 lays down all these matters with great detail. It clearly lays down that an Inspector in B‑14 will be eligible for promotion if he has five years' service to his credit and if he has passed the departmental examination. It does not lay down obtaining of 50% marks as a condition for promotion. The notification under reference is a self‑contained provision and supersedes any other order or rule which was previously in operation. There is no principle of law under which the previous provision can be considered to be in force. However, it was pointed out that to Government Order of 5th of April the syllabus for the departmental examination had been prescribed and examinations were still being conducted on the basis of the same syllabus. It was argued that it was manifestation of the fact that Azad Jammu and Kashmir Council was treating the Government Order of 5th of April, 1962 to be in force. In our view this fact does not advance the case of the respondents. The old syllabus may continue to by applicable because new syllabus has not been prescribed but since a notification has been issued to lay down the conditions of eligibility, the previous Government Order has ceased to be operative to that extent. Therefore, we accept the appeal and set aside the order passed by in the Service Tribunal. Consequently, the appeal filed by the present appellant before the Service Tribunal is accepted and the Azad Jammu and Kashmir Council is directed to review the case of the appellant for acting charge or regular promotion, as the case may be, in light of the above dictum. H.B.T./319/SC (AJ&K) Appeal accepted.