1994 PLP (C (PLC(CS))

SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN): ‑‑This is an appeal by Syed Ali Ashraf Shah Gillani who is at present posted as Tehsildar at Muzaffarabad. Through this appeal, the appellant has impugned the Government order dated 30‑5‑1990 by which his representation/review petition dated 2‑2‑1989 brought before the Prime Minister against the order dated 18‑5‑1976 passed by the Minister Incharge of Revenue Department regarding fig of his seniority and further promotion was rejected. The appellant has impleaded Azad Government of the State of Jammu and Kashmir through its Chief Secretary, Minister Incharge of Revenue Department, Secretary, Revenue and Revenue Commissioner, Azad Government as respondents.

2. The facts giving rise to this appeal are that the appellant joined the service of Revenue Department as Patwari in the year 1956 and was promoted as Girdawar on 1‑1‑1956. Subsequently he was placed against the post of Revenue Accountant on 26‑4‑1968, the post, which was then graded equivalent to the post of Naib‑Tehsildar. According to the appellant, the post of Revenue Accountant and that of Naib‑Tehsildar were inter‑transferable and both the posts fell in the same cadre of service. But unfortunately the seniority of the appellant as Revenue Accountant was not fixed in the cadre of Naib‑Tehsildar of the Revenue Department. The appellant submitted numerous applications to the authorities for his seniority being reckoned with Naib‑Tehsildars w.e.f. the date of his appointment as Revenue Accountant viz. 26‑4‑1968 but no decision was taken on his applications. In the year 1975, the appellant submitted a representation to the Prime Minister for fixing his seniority and promotion to the next higher post but no decision was taken by the Prime Minister on his representation and the appellant was informed by the Revenue Commissioner that his representation was consigned to the record by the Minister Incharge of the Revenue Department vide his order dated 18‑5‑1976. The appellant once again submitted a fresh representation to the Prime Minister of the Azad Government alleging therein that the Minister Incharge of the Revenue Department was not competent to pass any order on the representation of the appellant, which was directly addressed to the Prime Minister of the Government. This representation was, however, rejected by the Prime Minister himself on 30‑5‑1990 and feeling himself aggrieved by the aforesaid order of Prime Minister, the appellant has brought the present appeal to this Tribunal for the redress of his grievances. In the memo of his appeal, the appellant has taken the following grounds:‑‑ (i) that the post of Revenue Accountant and that of Naib‑Tehsildar being in the same grade of pay were inter‑transferable and were also constituting a unified unit for the purposes of combined seniority of their holders; (ii) that the seniority of the appellant was to be fixed in the cadre of Naib -Tehsildar but without hearing him, his representation was illegally consigned to the record by the Revenue Minister who held no powers under any rule of law to do that; (iii) that the order passed by the Prime Minister on the appellant's representation/review petition was not communicated to him and hence his appeal is quite within time from the date of his knowledge of rejection of his representation/review petition; (iv) the appellant seeks for a declaration of this Tribunal to this effect that his seniority may be determined in the cadre of Naib‑Tehsildars w.e.f. 26‑4‑1968 because he enjoyed the same grade of pay as was allowed to a Naib‑Tehsildar.

3. It is prayed by the appellant that the order of respondent No.l dated 3‑5‑1990 and the order of Revenue Minister dated 18‑5‑1976 may be set aside with this direction to the respondents that the appellant's seniority shall be fixed in the cadre of Naib‑Tehsildars from 26‑4‑1968 the date on which the appellant was appointed as Revenue Accountant and that he shall be allowed maximum service benefits under rules.

4. The above was admitted for regular hearing by an order dated 15‑10‑1990 made by Raja Muhammad Ashraf Kayani, learned Member of this Tribunal. The following points of law and facts were formulated to be determined by this Tribunal for the disposal of this appeal:- (i)Whether the appeal is maintainable without impleading the necessary parties? (ii) Whether without impugning the seniority list, the appeal is maintainable? (iii) Whether the departmental appeal against the seniority list was preferred in time and the present appeal is also in time? (iv) What is the date of appointment of the appellant as Naib‑Tehsildar and whether the seniority of the appellant as Naib‑Tehsildar can be determined from his appointment as Revenue Accountant w.e.f. 26‑4‑1968? (v) What were the relevant rules for the determination of the seniority of the appellant at the relevant time? (vi)Whether the Azad Jammu and Kashmir Tehsildari and Naib Tehsildari Rules, 1980 have any affect on the present appeal? The appeal was opposed by the respondent on the following grounds:‑‑ (i) That the appeal is time‑barred; (ii) the appellant did not submit his appeal to a competent authority. His application dated 29‑12‑1975 before the Prime Minister of Azad Government is not an appeal in nature. It was an application and was consigned to the record on 18‑5‑1976. The appellant kept himself silent over the matter till 2‑2‑1989 when he submitted another application to the Prime Minister on the same subject that his seniority may be fixed in the cadre of Naib‑Tehsildars and he may be promoted.

5. We have examined the contents of the appeal and the record placed on the file. We have also considered the arguments as were addressed by the learned counsel for the appellant. It is argued on behalf of the appellant that the period of his service w.e.f. 26‑4‑1968 to 5‑11‑1975 during which the appellant held the post of Revenue Accountant was required to be counted towards his service of Naib‑Tehsildar and his inter se seniority was to be fixed in the cadre of Naib‑Tehsildars. But it was not done by the respondents and as a result of that, the appellant had lost many a chances of his promotion as Tehsildar in the Revenue Department. The word 'Cadre' is not defined in the Azad Jammu and Kashmir Civil Servants Act, 1976 and the learned counsel for the appellant has referred Appendix 2 of the Kashmir Civil Service Rules (General) wherein the word `cadre' has been defined under rule 1, clause (i) to mean the sanctioned strength of service, class category or grade (permanent or temporary). According to the learned counsel for the appellant, the post of Naib‑Tehsildar and that of Revenue Accountant were borne on the strength of Revenue Department with equal status and grade of pay and, therefore, the inter se seniority of the holders of those posts was to be determined from the date of their appointments as such. We are afraid, we cannot contribute to this view. The word `Cadre' is not the name of a group of the officers who enjoy equal grade of pay on the posts of different nomenclature. In fact, the word `cadre' has been defined in K.S.R. to mean the sanctioned strength of the officers placed in one class or group of service with equal status and grade of pay provided their nomenclature is the same. If the nomenclature of two posts is different, then uniformity of their grades of pay itself cannot provide them equal status for the purposes of fixing their inter se seniority in one group or class of service. Apart from that the duties of a Revenue Accountant are quite different in nature from that of a Naib‑Tehsildar and there is no rule of law to put them together on a combined seniority list for their further promotion to the post of Tehsildar.

6. It is very important to note here that the appellant has brought his appeal against the order dated 30‑5‑1990 which was passed on his review petition filed by him before the Prime Minister on 2‑2‑1989. In the above application and also in his previous application, the appellant has submitted his grievances for fixation of his seniority in the group of Naib‑Tehsildar with effect from the date of his appointment as Revenue Accountant viz. 26‑4‑1968. The appellant has not challenged the entries of any seniority list of Naib Tehsildars by which be was aggrieved and deprived of his promotion to the post of Naib‑Tehsildar. The appellant has failed to implead the names of Naib -Tehsildars who were junior to him and were promoted to the next higher posts and for that reason also, his appeal is not maintainable.

7. It is next argued by the learned counsel for respondent that the present appeal is not maintainable for being time‑barred. We find sufficient force in this argument. The appellant firstly had made an application to the Prime Minister on 29‑12‑1975 and kept himself silent till 2‑2‑1989 when he submitted another application on the same subject to the Prime Minister. The intervening period of both the applications is about fourteen years whereas the period provided for representation/review petition is not more than sixty days. Hence the review petition brought by the appellant before the Prime Minister was hopelessly time‑barred and also his appeal at this forum.

8. In view of the above discussion, the points of law and facts involved as are shown in para. 4 of this judgment for being determined by this Tribunal for the disposal of this appeal are answered as under:‑‑ (i) Under section 4 of the Service Tribunal Act, 1975 only an aggrieved civil servant is permitted to bring an appeal at this forum against a final order whether ‑original or appellate made by a Departmental Authority in respect of any of the terms and conditions of his service provided he has already availed of the departmental remedy allowed to him under some other rule of procedure. In the instant case, the appellant has not challenged the entries of any seniority list wherein his name has been omitted to be mentioned at the proper place or he is completely ignored because of his different cadre of service. It follows that the appellant did not suffer any infringement of his terms and conditions of service and for that reason he was not an aggrieved civil servant. The submission of an application for the redress of his grievances before the Prime Minister of the Government without following the relevant rule of procedure does not itself provide a remedy to an aggrieved civil servant unless the submission of the appeal or application is duly provided as a departmental remedy in the relevant rule of procedure. (ii) Through this appeal, the appellant has not impugned the entries of any seniority list, therefore, he cannot claim inter se seniority in the cadre of Naib‑Tehsildars and for that reason his appeal is not maintainable at this forum. (iii) It shall be noted here that the appellant has not brought any departmental appeal against the infringement of his terms and conditions of service. In fact, the appellant had made an application before the Prime Minister of Azad Government respondent No.l for the redress of his grievances and that application was not covered by any rule of procedure. Since the application was not directed against any order of the authority by which the appellant might have suffered any loss because of any infringement of his terms and conditions of service, his applications before the Prime Minister and his present appeal at this forum are misconceived and barred were by the law of limitation. The post of Revenue Accountant may be at par with that of Naib‑Tehsildar in the Revenue Department because of equal grade of pay but it cannot be amalgamated with the posts of Naib‑Tehsildars for seniority purpose. (iv) The appellant has not produced any copy of rules by which his seniority was to be determined in the cadre of Naib‑Tehsildar. (v) The Azad Jammu and Kashmir Tehsildari and Naib‑Tehsildari Rules, 1980 have no bearing so far the facts of present appeal are concerned. The appellant can be posted out as Naib‑Tehsildar in accordance with the seats reserved for the departmental promotion but he cannot base his claim for his promotion to the post of Tehsildar by claiming his seniority in the cadre of Naib‑Tehsildars.

9. We find no force in this appeal and the same is hereby dismissed. No order as to the costs. AA./179/SrA Appeal dismissed.