1994 PLP (C (PLC(CS))

(I) That the appellant graves permission to argue other grounds at the time of hearing.

4. Objections 5 have been filed on behalf of the respondents. The respondents have not‑ accepted the claim of the appellant and the appellant has also filed replication wherein he has reiterated his case as made out in the memorandum of appeal.

5. We have heard the learned counsel for the parties and have minutely gone through the record

6. The service record of the appellant and claim of appellant as Senior Scale Stenographer in the Department of Local Government is not very much relevant from the decision of present appeal for the reason that the respective claim of the parties are to be considered from the date when the appellant was adjusted in the Department of Development on 1‑7‑1985. The appellant has stressed in his memorandum of appeal and it has also been agitated on his behalf during the course of arguments that his name was entered in the tentative seniority list which was issued on 4‑11‑1986. This seniority list was made final on 23‑5‑1989. This seniority is not helpful to appellant on the ground that he was according to his own version promoted in Civil Secretariat vide Order No. Admin/W‑IV/56‑114/87, dated 4‑6‑1987 as senior scale Stenographer. The wrong entry of the name of appellant in the said seniority list Ex. `DB' has been explained by the appellant's witness Manzoor Ali Khokhar, Section Officer who has stated that the name of the appellant was entered in the seniority list by mistake. The explanation given by this witness is that the appellant was in Scale B‑15 which was his personal scale in the parent Department and by mistake his name was entered in the temporary seniority list. The respondents have alleged in written objections that they were appointed as Stenographers in Grade B‑12 on 1‑7‑1983. It is again an admitted fact that appellant was adjusted in Civil Secretariat with effect from 1‑7‑1985 as Stenographer in the Department of Planning and Development vide order Exh. `DA'. This shows that the respondents were senior to the appellant in Grade‑12.

7. Inter se seniority of the parties is to be determined in accordance with section 7 of Azad Jammu and Kashmir Civil Servants Act, 1976 in the prescribed manner. This prescribed manner has been provided under Rule 8 of Azad Jammu and Kashmir Civil Servant (Appointments and Conditions of Service) Rules which is reproduced as under:‑‑ "The seniority inter se of persons appointed to post in the same grade in a Functional Unit shall be determined: (1)(a) In the case of persons appointed by initial recruitment, in accordance with the order of merit, assigned by the selection authority. Provided that persons, selected for appointment to the grade in an earlier selection shall rank senior to the persons selected in a later selection; and (b) In the case of persons appointed otherwise, with reference to the dates of their continuous appointment in the grade; provided that if the date of continuous appointment in the case of two or more persons appointed to the grade is the same, the .older if not junior to the younger in the next below grade, shall rank senior to the younger person. Explanation.‑‑If a person junior in a lower grade is promoted to a higher grade on ad hoc basis, in the public interest, even though continuing later permanently in the higher grade, it would not adversely affect the interest of his seniors in the fixation of his seniority in the higher grade. Explanation II.‑‑If a person junior in a lower grade is promoted to higher grade by superseding his senior and subsequently the later is also promoted, the promoted first shall rank senior to the one promoted subsequently. Explanation III.‑‑Subject to the provisions of Rule 14 of those rules, a junior appointed to a higher grade shall be deemed to have superseded his senior only if both the junior and the senior were considered for the higher grade and the junior was appointed in preference to the senior. (2) The seniority of the two persons appointed by initial recruitment to the grade vis‑a‑vis those appointed otherwise shall be determined with reference to the date of continuous appointment to the grade: Provided that if two dates are the same, the person appointed otherwise shall rank senior to the person appointed by initial recruitment: Provided further that inter se seniority of persons belonging to same category will not be altered. Explanation.‑‑In case a group of persons is selected for initial appointment at one time, the earliest date on which any one out of the group joined the service will be deemed to be the date of appointment of all persons in the group. Similarly in case of group of persons is appointed otherwise at one time in the same office order the earliest date on which any one out of the group joined the service will be deemed to be the date of appointment of all persons in the group. And the persons in each group will be placed with reference to the continuous date of appointment as a group in order of their inter se seniority. (3) Notwithstanding the provisions of this rule, the seniority lists already prepared in accordance with the rules applicable immediately before the commencement of these rules shall be construed as seniority lists for the respective now grades in respect of persons already in service and amendments therein shall continue to be made in accordance with those rules to settle inter se seniority disputes among them. Sub‑clause (b) of sub‑rule (1) of this rule is relevant in this case. According to this sub‑rule inter se seniority of persons appointed otherwise than initial recruitment is to be determined with reference to the dates of their continuous appointment in the grade. Admittedly the appellant entered in Grade B‑12 on 1‑7‑1985 in Civil Secretariat whereas respondents entered in the same grade on 1‑7‑1983. The selection authority did not care to take into account this seniority position of respondents and without considering the case of respondents for the higher grade promoted appellant as Senior Scale Stenographer in B‑

15. The appellant could not, in the circumstances claim a senior position to that of respondents Nos. 3 and 4.

8. Despite of our above view of the matter, we have to address the proposition as to whether the impugned order is sustainable in the eyes of law. The perusal of the record shows that respondents on 27‑11‑1991 addressed a letter to Accountant‑General of Azad Jammu and Kashmir wherein they stated that the pay of appellant who is working in the Department of Law and Parliamentary Affairs has wrongly been fixed and requested for recovery of excess payment. The learned counsel for appellant has raised the point that the respondents have failed to challenge the order of promotion of the appellant. This order attained the finality and could not be disturbed by the Chief Secretary. Appellant was promoted vide Order No. 87/113/ (SHOBA-E-INTAZAMIA), dated 4‑6‑1987. The promotion was given effect from 2‑4‑1987. The learned counsel for respondents has replied that the order of promotion of appellant was made without any notice to them and they are not bound by it. The arguments of learned counsel for respondents could be sustained if the facts on the record prove that the respondents had no knowledge or notice of the order of promotion of appellant dated 4‑6‑1987. It is correct that the respondents were not considered along with the appellant and the order was made without considering their case but from their own letter dated 27‑11‑1991 addressed to Accountant‑General of Azad Jammu and Kashmir it is clear that they had the knowledge that appellant Khani Zaman was performing his duties as Personal Assistant in the Department of Law and Parliamentary Affairs and this post carries the Pay Scale B‑

16. The appellant as Personal Assistant was in Grade B‑16 and this was only possible if the appellant was previously placed in Grade B‑

15. The fact that the appellant was in Grade B‑16 on 27‑11‑1991 the respondents must have known that he was in Grade B‑15 before his appointment as Personal Assistant in Law Department. The order of promotion of appellant unless challenged and set aside by the competent appellant authority will continue to occupy the ground as a valid order. This order was passed by the Chief Secretary. Under the Appeal Rules the order could be challenged before the next higher Authority which in this case is the Prime Minister. Instead of approaching the competent authority the respondents pursued their case in form of miscellaneous applications before the Chief Secretary who was not competent to review his own order. If we reckoned the period from 27‑11‑1991 the appeal before the Prime Minister could be filed within sixty days of this date. We believe that the respondents have so far taken no step to get rid of the operation of the order of the promotion of appellant. This order, therefore, has attained finality and Chief Secretary was not competent to pass any order which could make the order of promotion of appellant as invalid and in operative. The Supreme Court of Azad Jammu and Kashmir in Civil Appeal No. 44 of 1993 entitled Rehmat Ullah Awan v. Azad Government and others has in the same set of facts held that the appellant allowed the seniority list to attain finality and, therefore, his appeal was rightly dismissed as time‑barred by the Service Tribunal. Following the decision of the Supreme Court, we are of the view that respondents failed to challenge the order of promotion of appellant within time and in accordance with the channel available to the respondents to get the declaration of invalidity of the order from a competent forum.

9. In view of the above, we are of the opinion that the impugned order is liable to be set aside and we proceed to ordered accordingly with the directions that the seniority position of the appellant be restored as originally assigned in seniority list issued under No. Admin/S.O‑IV/1Vi‑360/90 dated 25‑1‑1990. We make no order as to costs. H.B.T./239/SrA Order accordingly.