1999 PLP (C (PLC(CS))

SARDAR SAID MUHAMMAD KHAN. C.J.‑‑‑This appeal has been directed against the judgment of the Service Tribunal dated 11‑3‑1998, whereby accepting the appeal filed by respondent No. 1, the appellant, herein, was demoted to his junior scale as teacher.

2. The brief facts of the case are that the appellant and respondent No. 1. are both serving as Primary Teachers in the Education Department of Azad Jammu and Kashmir. According to the case of the appellant, he was inducted in the service on 8‑6‑1970 and was given junior scale on 22‑10‑1973, whereas respondent No. l was inducted in service as teacher on 2‑2‑1980 and was given junior scale on 1‑11‑1981. It is further contended that the appellant appeared in B.Ed. Examination in the year 1986 but he was placed in compartment and cleared the said examination on 1‑5‑1988, whereas respondent No. I passed B.Ed. Examination on 30‑11‑1987, earlier than the appellant herein. It is contended that in view of the judgment of this Court, a seniority list was prepared and on the basis of the same, the appellant was promoted as Senior Teacher on Acting Charge basis on 26‑12‑1994 but subsequently, he was confirmed as Senior Teacher vide order dated 3‑10‑1995 with retrospective effect from 26‑12‑1994, the date on which he was first promoted to senior scale on ad hoc basis. It is further contended that respondent No. 1 filed a miscellaneous application before the Director Education for this promotion against one Muhammad Walayat Khan but he could not get the senior scale; thereafter he submitted another application before the Director Education who, vide his order dated 28‑11‑1995, promoted respondent No. l as Senior Teacher in place of appellant herein. The appellant filed an appeal to the Secretary Education against the order of the Director Education which was accepted and the order of Director Education whereby the appellant was demoted, was set aside. However, the Secretary Education, vide same order, also promoted Perviz Akhtar, respondent, to B‑

16. The respondent filed an appeal to the Service Tribunal against the order of the Secretary contending that he was not declared senior to the appellant, herein the Service Tribunal set aside the order of the Secretary Education holding that the appeal against the order of Director Education to the Secretary Education was not competent because no second appeal could be preferred in view of the Appeal Rules.

3. We have heard the arguments and perused the file. It has been argued by Syed Nazir Hussain Shah Kazmi, Advocate, the learned counsel for the appellant, that the perusal of the application of the respondent dated 4‑1‑1995, which ultimately culminated in the demotion of the appellant, herein, was not an 'appeal' before the Director Education, rather it was a miscellaneous application. Thus, the learned counsel has contended that the order passed by Director Education which was assailed before the Secretary Education was an original order and consequently, the appeal before the Secretary Education being the first appeal was rightly filed. The learned counsel has maintained that the Service Tribunal has committed an error in holding that the appellant should have assailed the order of the Director Education before the Service Tribunal instead of assailing the same before the Secretary Education. The learned counsel has argued that the mere fact that in the miscellaneous application, the contesting respondent has used the word 'appeal' or the Director Education has described the miscellaneous application of the respondent as an 'appeal' would not make the same an 'appeal' because an 'appeal' can be filed only against an order passed by a subordinate authority to the appellate authority. The expression 'appellate authority' has been defined in the Appeal Rules, 1991 which, in the present case, was Education Secretary. The learned counsel has also contended that even otherwise the respondent has no case because the appellant was allocated senior scale on 3.10‑1995 with retrospective effect from 26‑12‑1994 against which no appeal was preferred by the respondent to the competent Authority. Thus, the promotion of the appellant to B‑16 had become final and could not be set aside by the Director Education on a miscellaneous application in view of the relevant law on the subject. The learned counsel for the appellant has further argued that when the appellant was allocated junior pay scale, the respondent had not yet joined service. Thus, it cannot be said by any stretch of imagination that the respondent was senior to the appellant merely because he passed B.Ed. Examination before the appellant, especially so when in consequence of said qualification the respondent was not given promotion to B‑16 and the appellant was promoted vide notification dated 3‑10‑1995.

4. In reply, Mr Suleman Niaz, Advocate, the learned counsel for Perviz Akhtar, respondent, has controverted the arguments advanced by the learned counsel for the appellant. He has argued that the application before the Director Education was in fact an appeal and, thus, the Service Tribunal was correct in holding that the appeal should have been preferred by the appellant, herein, to the Service Tribunal and not to the Secretary of the Department because no second departmental appeal is `competent under the relevant rules. The learned counsel has also argued that it is correct that the appellant joined service earlier than the respondent and he was also given the junior scale before the respondent but the fact remains that the respondent passed his B.Ed. Examination before the appellant and, thus, he would be deemed senior because the promotion to pay scale 16 cannot be ordered without said qualification.

5. We have given due consideration to the matter. It may be observed that on appeal filed by the appellant, herein, before the Secretary Education. the respondent has also been given senior pay scale. Therefore, only the dispute between the parties is with regard to the seniority of the contesting parties. It may be observed that the mere fact that the respondent passed B.Ed. examination before the appellant would not entitle him to seniority against the appellant especially so when the appellant was allocated senior scale vide order dated 3‑10‑1995 with retrospective effect from 26‑12‑1994 and no remedy was sought against the said order before the proper forum. The perusal of the application dated 4‑1‑1995 would reveal that it was a miscellaneous application whereby the respondent sought his promotion to B‑16 without assailing the promotion of the appellant. Therefore, the order passed on the said application cannot be regarded as an "appeal" against the appellant, herein. Thus, the order which was passed by the Director Education, was an original order an not an appellate order, as has been held by the Service Tribunal. Therefore, we are of the considered opinion that the appeal filed by the appellant, herein, against the order of Director Education to the Secretary. Education was competent. The Service Tribunal was not correct in holding that the order passed by the Secretary Education was not maintainable because the order passed by the Director Education should have been challenged before the Service Tribunal and not before the Secretary Education. In view of section 4 of the Service Tribunals Act without filing an appeal to the Secretary Education an appeal to the Service Tribunal would have been incompetent. In the light of what has been stated above, we accept the appeal, set aside the order passed by the Service Tribunal and restore that of the Secretary Education holding that the appellant is senior to respondent, Perviz Akhtar. H.B.T./372/SC(AJK) Appeal accepted.