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Superintendent in the subordinate judiciary - Lawyers of Pakistan

Superintendent in the subordinate judiciary

Citation Name : 2019 PLC(CS) 355 SUPREME-COURT-AZAD-KASHMIR
Side Appellant : QADEER HUSSAIN
Side Opponent : THE APPOINTING AUTHORITY/CHIEF JUSTICE OF HIGH COURT/HIGH COURT OF AZAD JAMMU AND KASHMIR
Service Tribunal---Jurisdiction---Scope---Superintendent in the subordinate judiciary---Promotion as Civil Judge---Selection Board, opinion of---Scope---seniority ---Determination of---Procedure---Respondent being superintendent in the subordinate judiciary was promoted as Civil Judge against the departmental promotion quota---Appellant filed appeal that he was senior and more experienced than the respondent---Service Tribunal observed that nothing was available on record to show as to why the Selection Board ignored the appellant for promotion as Civil Judge however opinion of Selection Board could not be substituted and dismissed the appeal---Validity---When Service Tribunal had reached to the conclusion that there was no reason for ignoring the appellant for promotion, it should have accepted the appeal and cured the illegality committed by the Authority---Service Tribunal on appeal might confirm, set aside, vary or modify the order appealed against---If order appealed was found issued on the recommendations made arbitrarily by the Selection Board, Service Tribunal was empowered to set aside, vary or modify the said order---When Service Tribunal came to the conclusion that employee had been superseded without any justification then mere recommendations made by the Selection Board were not hurdle in the way of Service Tribunal to perform its legal duty---Civil servant had vested right to approach the proper forum for redressal of grievances---When any Court or Tribunal was of the opinion that some illegality or perversity was found in the order impugned before it, said Court or Tribunal was bound to cure such illegality or perversity---Findings recorded by the Service Tribunal were against the spirit of law which could not be upheld---Post of Civil Judge was sensitive in character in the judicial system and selection against such post in an arbitrary manner was alarming for the cause of administration of justice---Appellant and respondent were promoted in BS-16 with effect from 27-02-2002---Appellant before his promotion was working as Senior Scale Stenographer, BS-15, whereas private respondent was working as Stenographer, BS-12---Appellant joined service in judicial department prior to the respondent---seniority had to be determined according to the Rules---No provision was available in the relevant Rules that an incumbent by acquiring LL.B degree would become senior to the others---Appellant was eligible for promotion when selection was made and he could not be considered junior to respondent merely on the ground that respondent had acquired requisite degree of LL.B prior to the appellant---Post of Stenographer was upgraded to BS-16 with effect from 27-02-2002---When an employee was senior in lower grade to the other and both were promoted in the next higher grade then the employee who was senior in lower grade was to retain his seniority ---Appellant senior in lower grade was also senior to respondent after promotion in the equal grade---Post in question was to be filled in on the basis of merit and not on the basis of seniority -cum-fitness---Selection Board had not considered the relevant factors requisite for determining the merit---seniority was not the sole criterion to determine the merit but same was considered as one of the relevant factors for determining the merit and could not be ignored entirely---When all other credentials/qualities were equal then seniority would play vital role in the determination of merit---Credentials of contestants in the present case were equal---Nothing adverse was available against the appellant---Appointment of respondent was made without adopting the proper course and appellant had been ignored without any reason---Court should not preempt the jurisdiction of Selection Board---Matter was remanded to the High Court by the Supreme Court with the direction to place the matter before the respective Selection Board for re-examination---Selection Board/Authority while revisiting the matter was to look into all the aspects of the case---Appeal was disposed of in circumstances.

 

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