1999 PLP (C (PLC(CS))

The appellant filed a writ petition in the High Court on 17th May, 1992. The High Court issued pre‑admission notice as to why the writ petition may not be admitted for regular hearing. Director Auqaf Department filed his comments alongwith copy of the minutes of the Selection Board which, according to the order of the High Court, disclosed that: "the case of the petitioner is also considered by the Selection Board and learned counsel for the respondent also stated at bar that the case of the petitioner is being considered and proper orders will be passed in due course of time". Thereupon, the High Court came to the conclusion that no further proceedings were required. The writ petition was disposed of on 27th May, 1992. On 7th July, 1992 the respondents were duty promoted on the recommendations of the 'Selection Board. Case of the respondents is that the appellant's case was duly considered by the Board but he was not recommended for promotion. The promotion of the respondents was giver effect from 15th October. 1990. The appellant filed a review petition against this order on 13th September, 1992. He averred in the petition that since he was posted as 'Shadi Shaheed', it was only on 13th September, that he came to know that the respondents had been promoted and thereupon he was filing the review petition which was within time from the date of knowledge.' From 13th September, 1992, the date on which he filed the review petition, the appellant took no other steps in this connection till 3rd March, 1994 when he filed another writ petition in the High Court praying that the respondents be directed to honour the commitment made to the High Court that the appellant's case would be considered for promotion to BPS‑

17. This petition was dismissed two years later on 1st April, 1996. The appellant contended before the High Court that the official respondents were bound in light of the order of the High Court passed on 27th May, 1992 to redress the grievance of the appellant by promoting him. This plea was rejected on the ground because, to quote from the order passed by the High Court, "in absence of any proof otherwise to it, it is presumed that the case of petitioner has been considered by the Selection Board, and so is stated at bar that in view of the petitioner's record, he was not considered fit for promotion". The learned Judge in the High Court further observed that remedy against the order of promotion of Said Hussain and Masood‑ul‑Hassan Qureshi was available to Muhammad Fazil Nadeem by way of review petition but Muhammad Fazil Nadeem had instead filed a writ petition and that too after one year and eight months after the promotion order. The appellant then filed petition for leave to appeal in this Court which was dismissed on 10th June, 1996 on the ground that the appellant's remedy was by way of appeal etc. before the departmental authorities and then to the Service Tribunal and not by invoking the writ jurisdiction of the High Court. Immediately after the dismissal of the petition for leave to appeal, the appellant approached, the Service Tribunal on 16th June, 1996 by filing appeal against the promotion on regular basis of the respondents vide order, dated 7th July, 1992. The appeal was accompanied by an application for condonation of delay., He pleaded extension in time on the ground that he was pursuing this remedy before the High Court and subsequently before the Supreme Court'‑ The prayer for condonation did not find favour with the Tribunal the result that the appeal was dismissed. At, this stage of time both the review petitions filed by the appellant had not yet been decided. One had been filed by the appellant on 12th' November, 1990 against the order of conditional promotion of the respondents while the other was filed on 13th September, 1992 against the regular promotion of the respondents which took place on 7th July.‑, 1992. 'After the judgment of the Supreme Court the first review petition filed by the appellant was decided on l0th, December, 1996. It. read as follows‑ "Notification. ‑‑The Prime Minister of. Azad Jammu and Kashmir is pleased to accept the review petition filed by Mr. Muhammad Fazil Nadeem, Manager Auqaf, on 12th November, 1990 against Government Order No.3491‑5304, dated 15th October 1990. Auqaf Department will take necessary steps consequent to the acceptance of the review petition." (Translated) This order was challenged by respondents Nos.1 and 2 before the Service Tribunal. As seen above, it has been set aside by the Tribunal. The present appeal has been filed to challenge the said order. Sardar Rafique Mahmood Khan, the learned counsel for the appellant, contended that the Service Tribunal has wrongly held that the order of 15th October, 1990 could not be set aside in review because it had attained finality when the appellant did not challenge it by filing appeal ' against it before the Service Tribunal within one hundred twenty days from the date on which filed review petition against it before the Prime Minister. It‑was submitted that the Service Tribunal has wrongly applied the dictum of this Court in Shabbir Ahmad v. Azad Jammu and Kashmir Government and another (1996 SCR 382). He explained that the circumstances of the present case are clearly distinguished because it is not the appellant who went to the Service Tribunal but it i$ the Prime Minister who has exercised his powers under the Azad Jammu and Kashmir Civil Servants (Appeal) Rules and has accepted the review petition filed by the appellant. It was contended by him that there is no legal provision that a review petition filed before the Prime Minister Would be tendered futile if the petitioner does not file appeal before the Service Tribunal. According to the learned counsel if the order had been unsuccessfully challenged before the Service then it could be argued that the Prime Minister could not pass an inconsistent order. It was also contended on behalf of the appellant that the rejection of the appeal filed by the appellant against the order of 7th July, 1992 by which the order of 15th October, 1990 was confirmed is also not an adverse factor because the order of 7th July, 1992 was based on order of 15th October, 1990 and if the order passed on 15th October, 1990 is set aside the order of 7th July, 1992 shall stand automatically cancelled. The arguments of the learned counsel for the appellant are met by Syed Nazir Hussain Shah Kazmi, the learned counsel for respondents Nos. l and 2, by submitting, that the order of 15th October, 1990 has been replaced by the order of 7th July, 1992 and the Prime Minister was left with no power to accept the review petition filed against the order of 15th October, 1990. He explained that, the order of 15th October, 1990 was a temporary order by, its very nature and was operative till' the regular appointments were to be made against the posts in BPS‑17 in light of the recommendations of the Selection Board. He contended that when the Selection Board considered the case of the appellant as well as the respondents. It was found that the appellant was, not fit to be promoted fund found the respondents to be suitable for promotion. It is on the recommendations of the Selection Board that the order of 7th July; 1992 was passed by the Government to give regular promotion to the respondents. Syed Nazir Hussain Shah Kazmi vehemently contended that the order of 7th July, 1992 held the field when the Prime Minister 'Passed the order to set aside the order of 15th October 1990, therefore, it in any case dial not affect the order of 7th July 1992 which continues to subsist to hold the field with the result that the private respondents continue to hold their posts in BPS‑

17. It was further contended by the learned counsel for respondents 1 and 2 that the appellant was dismissed from service on 29th April, 1986 on proof of serious allegations and also that his B.A. Degree was found to be bogus. In this connection he relied on Annexures F/2 and K. Relying on documents K/2 it was further stated by him that the appellant was reinstated on technical ground on 27th December, 1988 because it was found that Efficiency and Discipline Rules under which he was dismissed were not applicable to the employees of the Auqaf Department. The learned counsel further brought to our notice by referring to Government order Annexure K/2 that on 3rd December, 1995 the appellant was found guilty of some charges and, having been proceeded' against under the Efficiency and Discipline Rules, he was awarded the penalty of stoppage of increment for one year and he was also censured. He submitted that these are the factors which led the Selection Board to the finding that the appellant was not a fit person to be promoted. Sh. Abdul Aziz, the learned counsel for pro forma‑respondent No.5, supported the arguments of Syed Nazir Hussain Shah Kazmi. As seen above, the order of 7th July, 1992 by which the respondent were regularly promoted on the basis of the Selection Board was challenged by the appellant by tiling appeal before the Service Tribunal but the appeal was dismissed. It is true that the appeal was dismissed as being badly hit by rule of limitation but that does not take away the finality attached to the order of the Service Tribunal. The result is that respondents Nos.1 and 2 stand regularly promoted to BPS‑17 posts held by them. Since the order of promotion on regular basis has attained finality the only argument worth consideration which has been raised by the learned counsel for the appellant is that the order of 7th July, 1992 was in continuation of the order of 15th October, 1990, therefore, the rejection of the appeal against the order of the 7th July, 1992 did not take away the powers of the Prime Minister to set aside the order of 15th October, 1990. In our view this argument has not force. By order of 15th October, 1990 the respondents were conditionally promoted subject to confirmation by the Selection Board while the order of 7th July, 1992 is order of regular promotion which was passed on the recommendations of the Selection Board. The order of 7th July, 1992 is not based on the order of 15th October, 1990 but is based on the recommendations of the Selection Board. Therefore, the argument cannot be accepted that the order of 7th July, 1992 is a superstructure which stands on the order of 15th October, 1990. It may be observed that if the respondents had not been promoted on 15th October, 1990 they would have been even otherwise promoted when the Selection Board recommended their case finding them suitable for promotion. Our considered view is that the order of conditional promotion has lost its existence after regular promotion of the private respondents and, therefore, could not be set aside in a review petition. It is also significant that regular promotion of the respondents also attained finality when the appellant's appeal against it was dismissed by the Service Tribunal. It was argued by Sardar Rahque Mahmood Khan that the order of 7th July, 1992 confirmed the respondents against posts in BPS. 17 with effect from will October, 1990 which was a clear indication that the subsequent order was based on the earlier order. In our opinion this fact does not outweigh the clear legal position, as stated above, that the subsequent order is order of regular promotion based on the recommendations of the Selection Board and not on the order of conditional promotion. It may be observed that the order of the Prime Minister does not contain any reasons as to why the order of 15th October, 1990 has been set aside when it was no longer in force. , It follows from the foregoing discussion that this appeal has no force. Therefore, we order its dismissal. H.B.T./388/SC(AJ&K) ?????????? ??????????????????????????????????????????????????????????? Appeal dismissed.