1993 PLP (C (PLC(CS))

SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN).‑‑‑This appeal is directed against the Government Order No. Revenue/P(I)‑139/2993 3005/87, dated 9‑5‑1987 by which the respondents Naib‑Tehsildars Nos. 4 to 6 were promoted and appointed as Tehsildars in their own grade and pay. The appellant has impleaded Azad Government through Chief Secretary, Secretary, Revenue Department, Commissioner, Revenue Department, Syed Aftab Hussain Shah, Naib‑Tehsildar posted as Tehsildar Ushr and Zakat Rawalakot, Raja Abdur Rashid, Naib‑Tehsildar posted as Tehsildar PWD and Kh. Pervaiz Ahmad, Naib‑Tehsildar posted as Tehsildar, Rawalakot as respondents for seeking his relief against them.

2. In the memo. of his appeal, it is stated by the appellant that after Patwar training he was appointed as Patwari on 1‑7‑1961 in the Revenue Department of Azad Kashmir. At the relevant time of his posting as Patwari he was a Matriculate and was soon promoted as Girdawar on 1‑6‑1965. In the meantime he passed his Intermediate Examination in the year 1967 and was promoted as Naib‑Tehsildar on 6‑10‑1973 and posted as Relief Inspector. Later on, he was posted as Naib‑Tehsildar in P.W.D. of Azad Government of the State of Jammu and Kashmir. The respondent No. 4 was originally appointed as Girdawar on 16‑9‑1966 and promoted as Naib‑Tehsildar, Settlement on 27‑9‑1978. The respondent No. 5 joined service of Revenue Department on 18‑4‑1962 as Patwari and was subsequently promoted and posted as Surveyor in Demarcation Wing of the Forests Department. Then he was further promoted as Naib‑Tehsildar integrated Rural Development Programme on 17‑5‑1975. The respondent No. 6 was initially appointed as Naib‑Tehsildar on 4‑12‑1975. At the relevant time of their promotion, the respondents Nos. 4 to 6 were junior to the appellant in their capacity as patwari, Girdawar and Naib‑Tehsildar. In the seniority list published in the year 1974, the appellant's name was placed as Naib‑Tehsildar whereas none of the contesting respondents were shown as such because till then none of them had joined the service in the cadre of Naib‑Tehsildars. It is further stated by the appellant that with a view to showing undue favour to them, the respondents Nos. 4 to 6 were given senior position in the seniority list. The appellant went in appeal against the wrong entries made in the seniority list and while his appeal was still pending for decision, the respondent No.l illegally promoted the respondents Nos. 4 to 6 as Tehsildar under the impugned order. The order of promotion made under the impugned order was against the law and rule of procedure and the principles of natural justice: The appellant has impugned the order of their promotion on the following grounds:‑‑ (a) that the terms and conditions of service of the appellant were violated and he was not considered for his promotion to the post of Tehsildar despite the fact that he was senior to respondents; (b) that the order of promotion of respondents Nos. 4 to 6 is mala fide for the reason that it was made while the matter regarding inter se seniority among the appellant and contesting respondents was pending with the competent Authority for adjudication. The impugned order is mala fide for another reason that it is made in the garb of a temporary order; (c) that keeping in view the appellant's length of service, efficiency, ability, training and qualifications, the impugned order was not made on merits and was smacking favouritism; (d) that respondent No. 5 was not qualified as he was not confirmed as Naib‑Tehsildar on the date of his promotion. Feeling himself aggrieved by the impugned order, the appellant filed a review petition with the Government but the same was not decided by the respondent‑Government and after having awaited the statutory period of 90 days fixed for the decision since the date of filing review petition, the present appeal was brought to this forum which is quite in time.

3. It is prayed by the appellant that after setting aside the impugned order of promotion of respondents Nos. 4 to 6, he may be ordered to have been promoted to the post of Tehsildar w.e.f. 9‑5‑1987 and that he may also be awarded seniority in the cadre of Tehsildars.

4. The above appeal was admitted for regular hearing by a short order of this Tribunal dated 8‑10‑1987 and the respondents were asked to submit their objection, if any, as to the maintainability of this appeal.

5. The appeal has been contested by respondents Nos. 1 to 3, 4 and

5. A preliminary objection has been raised on behalf of respondents Nos. 1 to 3 and 5 that the present appeal is not maintainable for the reason that the appellant has not availed of departmental remedy which was available to him by way of review petition before the respondent/Government. Secondly the appeal is not directed against the final order and hence it is not maintainable against a temporary order. Thirdly the appeal is barred by limitation. Similar objections were raised by respondent No. 4, Syed Aftab Hussain Gardaizi.

6. We have heard the arguments as were addressed by the learned counsel of each party and have also examined the contents of appeal as well as the impugned order by which the respondents Nos. 4 to 6 were promoted to the post of Tehsildars. A copy of the memo. of review petition dated 4‑6‑1987 is available on the file by which it appears that the appellant had submitted his review petition before the respondent/Government against the impugned order although there is nothing on the file to show when this review petition was actually received in the Office of Prime Minister of Azad Kashmir Government. Para. No. 10 of memo of appeal shows the review petition against the impugned order was filed by the appellant on 4‑6‑1987 and this fact is duly supported by an affidavit on the file. There being no counter‑affidavit to controvert the allegations of the respondents, we shall have to accept it that the departmental remedy has been availed of by the appellant well in time and after awaiting the statutory period of 90 days, he had brought his appeal before this Tribunal on 20‑9‑1987 which is quite in time. Hence both the objections that the departmental remedy was not availed of by the appellant and that his appeal was time‑barred are devoid of force and are repelled. The second objection is that the promotion of the respondents Nos. 4 to 6 was temporarily ordered in their own pay and grade which they enjoyed as Naib‑Tehsildar and, therefore, the impugned order was not a final one to be impugned at this forum. This is the most important point which is to be resolved in this appeal by this Tribunal. The impugned order was made on 9‑5‑1987 and a period of more than five years has elapsed between the date of issue of order and the date on which the judgment is being written. To be more clear on this point, it seems essential that the impugned order may be reproduced below for its correct appreciation:‑‑

7. A plain reading of the above order shows that it was a temporary order having been made in their own grade and pay which the respondents Nos. 4 to 6 at the relevant time of promotion enjoyed as Naib‑Tehsildar. Apart from that the wording of the impugned order further shows that the respondents Nos. 4 to 6 were promoted to officiate the post of Tehsildars from the date of the order: Since the respondents Nos. 4 to 6 are holding the charge of the post of Tehsildars for a period over five years, we arrive at this conclusion that the impugned order does not provide a temporary arrangement to function and in fact, it has allowed the appointments to be more likely of permanent character. It is perhaps this reason that the arrangement is still continuing despite the lapse of a period of five years against clear vacancies in the regular cadre of Tehsildars. Therefore, the argument that no appeal is maintainable against the impugned order is not convincing and we cannot contribute to this view that the impugned order is not the final order and the appeal brought against that order is not maintainable. Hence the second objection is also without force and is not tenable.

8. Adverting to the merits of the case, it may be noted here that the appellant is claiming his promotion on the sole ground of seniority which is one of the essential qualifications for granting promotion to Naib‑Tehsildars to the next higher post of Tehsildar. Rule 7 of Azad Jammu and Kashmir Tehsildari and Naib‑Tehsildari Rules, 1980 provides that among other qualifications a candidate for the post of Tehsildar must hold a degree from a recognised university and under Rule 5 of the aforesaid Rules, it is provided that the post of Tehsildar shall be filled up by selection on merit with particular reference for higher responsibilities from among members of subordinate service. It is true that the appellant joined his service as Patwari and Girdawar in the Revenue Department before he was appointed as Relief Inspector against an ex cadre post. A copy of the order of his appointment as Relief Inspector dated G‑10‑1973 placed on the file as Annexure B/A shows that the appellant was not promoted to the post of Naib‑Tehsildar and rather he was given promotion against ex‑cadre; post on 6‑10‑1973. Subsequently he was posted as Naib- Tehsildar in P.W.D. and there is nothing on the file to show when he had actually joined the service of the Revenue Department in the regular cadre of Naib Tahsildar There is no seniority list pertaining to the year 1974 on the file to show that the appellant was placed therein as Naib‑Tehsildar long ago in the year 1974. According to the seniority list prepared by the Office of Commissioner, Revenue Department for the year 1988‑89 placed on the file of Syed Aftab Hussain Gardairi respondent No. 4, the appellant is shown for the first time to have been appointed as Naib‑Tehsildar on 13‑6‑1977 but this entry is not supported by a regular order of the Office of Commissioner, Revenue Department. It transpires from a copy of the Order No. SR/126‑65/89, dated 24‑1‑1989 placed on the personal file of the appellant at page 147 that the appellant continued as Naib‑Tehsildar in Integrated Rural Development Programme up to the date of that order on which he was promoted and appointed as Officiating Tehsildar Settlement at Tehsil Hattian. As compared to the appellant, the respondents Syed Aftab Hussain Gardaizi joined as Naib -Tehsildar on 28‑9‑1978, Raja Abdur Rashid Khan on 1‑7‑1978 and Kh. Pervaiz Ahmad on 4‑3‑1976. It is, no doubt, that the appellant has been holding the rank of a Girdawar in the subordinate service of Revenue Department but his promotion having not been made in the regular cadre of Naib‑Tehsildar, he cannot be given the benefit of seniority for the service rendered by him as Relief Inspector and that of Naib‑Tehsildar in Integrated Rural Development Programme.

9. There is, no doubt, in it that the appellant belonged to the Revenue Department but his posting against ex‑cadre post of Relief Inspector and that of Naib‑Tehsildar in P.W.D. shows it that he was never employed as Naib- Tehsildar in the regular cadre under the Revenue Department. It is unfortunate that while posting him against the ex‑cadre post, his services in the parent Department were not kept intact for the purposes of seniority and future promotion. The appellant was also required to be cautious for his future service and promotion but he did not care much before joining the Office of Relief Inspector and that of Naib‑Tehsildar in P.W.D. by a general Order No. P/1/15/SM/3090‑3146/81, dated 15‑10‑1981 placed on the personal file of the appellant; page 86, the Chief Executive has tried to protect the services of the employees of the Revenue Department posted out of the Department. But this order is of general nature and extends no help to the appellant because at the relevant time of his promotion against ex‑cadre post of Relief Inspector, his services were neither barrowed to Relief Department nor he was promoted against the post of Naib‑Tehsildar in the regular cadre of the Revenue Department and under such circumstances after having failed to challenge the promotion orders of his juniors to the post of Naib‑Tehsildars in the regular cadre, the appellant lost his position that he was entitled to gain by his promotion in the regular cadre. Therefore, it is difficult for us to accept the seniority of the appellant w.e.f. 13‑6‑1977 while he was posted as Naib -Tehsildar in the P.W.D. after his post of Relief Inspector was brought under reduction.

10. For the above reasons, the appeal is dismissed on merits. No order as to the costs. A.A./191/Sr.A Appeal dismissed.