2004 PLP 457 (YLR)

2. The necessary facts, giving rise to the present petition for leave to appeal, are that the petitioner herein was appointed in the Forest Department as Kuth Guard vide order dated 15-4-1974 who duly joined his service on 16-4-1974. On 16-3-1977 the petitioner was adjusted is Forest Guard. On 21-5-1997 the petitioner was promoted as Forester on the basis c4f recommendations of the Selection Committee. Against the promotion order of the petitioner, one Akbar Shah, filed a departmental appeal and the same was accepted and the petitioner was declared to be promoted after Akbar Shah. During this litigation many junior Forest Guards to petitioner were promoted as Foresters. The petitioner applied for his promotion and adjustment as many junior persons to Itim were promoted. The petitioner was proNoted and adjusted; consequently the junior most promotee, Syed Sarwar Hussain Shah, respondent No. I herein, was reverted vide orders dated 21-5-1997 and 22-12 1999. Respondent No. 1, Syed Sarwar Hussain Shah, filed an appeal before the Service Tribunal against the order dated 22-11-1999. After the completion of trial, the Service Tribunal was pleased to accept the appeal filed by respondent No-1 vide its judgment dated 19-11-2001 against which the petitioner herein filed an appeal before the apex Court on 27-11-2001. This court accepted the appeal of the petitioner and by setting aside the judgment of the Service Tribunal remanded the case to tile Service Tribunal for fresh decision according to service miles and admittedly seniority lists.

3. After the remind of case, the Service Tribunal accepted the appeal of respondent No.1 vide its impugned judgment dated 4-10-2003. It is the aforesaid judgment of the Service Tribunal which is the subject-matter of present petition for leave to appeal.

4. In support of petition for leave to appeal it was vehemently contended by Kh. Muhammad Naseem, the learned counsel for the petitioner, that the petitioner's basic date of appointment was 15-4-1974 as Kuth Guard and subsequently he was adjusted as Forest Guard on 16-3-1977. The post of Kuth Guard and Forest Guard is of the same scale, therefore,., the seniority of Forest Guards, Depot Guards and of Kuth Guards is determined jointly in accordance with their first appointments on respective posts. The seniority list prepared in the year 1989 shows the petitioner at Serial No.45 and his first appointment therein is entered as 15-4-1974 while respondent No.1 is entered at Serial No.54. The respondent or any other person never challenged the validity of this seniority list determined by the department. Thereafter in another seniority list of 1996-97, the petitioner is entered at Serial No.1 while respondent No. 1 is entered at Serial No.

11. Neither respondent No.1 nor anybody else has objected to this seniority list. Even before going to Service Tribunal, respondent No.1 never called in question the validity of the above noted seniority lists prepared and published by the department. It is also contended by the learned counsel for the petitioner that the first order of promotion of petitioner as Forester has not been challenged by respondent No.1, therefore, he was legally estopped to call in question the promotion of petitioner while ignoring the promotion of incumbents entered at Serial Nos.2 to

10. Thus respondent No.1 has admitted the correctness of this seniority list. The seniority list of Foresters published and prepared in 1998 also shows the date of first appointment of petitioner as 15-4 1974. This entry as a whole has never been challenged -by respondent No.

1. The learned counsel also contended that the Forest Department in its written statement before the departmental authority as well as before the Service Tribunal admitted the first appointment of petitioner as 15-4-1974, now they cannot take. a different and inconsistent stand. The learned counsel contended that the Service Tribunal has relied on that record which was not part and parcel of the file of Service Tribunal and which was not tendered in evidence and no opportunity of cross-examination was given to the petitioner.

5. Controverting the arguments of the learned counsel for the petitioner, Mr. Abdul Rashid Abbasi, the learned counsel for respondent No. 1, contended that the petition for leave to appeal does not give rise to any question of law of public importance as visualized by section 47 of the AJ&K Interim Constitution Act, 1974. The petition, therefore, merits dismissal without going into merits thereof. The learned counsel argued that respondent No. 1 is senior to the petitioner in his capacity as Forest Guard according to the seniority list of the concerned Division, wherein the answering respondent is placed at Serial No.9 as compared to the petitioner who is placed at Serial No. 19 of the list. The copy of this seniority list has been attached as Annexure ' RA' . Respondent No. 1 was inducted into service of the Forest Department as Forest Guard on 19-3-1975 as against the petitioner who was inducted into such service on 1-3-1977. Respondent No. 1 has qualified the departmental training, whereas the petitioner is still untrained and not eligible for promotion as Forester. The seniority of respondent No. 1 vis-a-vis the petitioner was finally determined by the competent authority on 8-10-1978., where respondent No.1 was ordered to be placed at Serial No.39 and petitioner was ordered to be placed at Serial No.49 of the same list. The order dated 8-10-1978 having never been challenged by the petitioner at any forum, had attained finality by virtue of law and no exception can be taken by the petitioner in this regard. Copy. of this order has been attached with the caveat as Annexure ' RB' . The learned counsel for respondent pressed into service the submission that one Abdul Rashid, Forest Guard, Muzaffarabad Division, was promoted vide Order No.326, dated 8-5-1999. Respondent No.l challenged the said promotion of Abdul Rashid which was accordingly cancelled and respondent No.1 was promoted as Forester B-7 instead of Abdul Rashid. The promotion of Abdul Rashid, who is junior to respondent No.1, was not challenged by the present petitioner. He is, therefore, estopped to challenge the promotion of respondent No.1. The learned counsel pressed into service the submission that it is pertinent to take note of the fact that the Conservator of Forest ordered the cancellation of promotion of respondent No. l in spite of the fact that no appeal was filed against the promotion of respondent No.

1. This fact is acknowledged even by the Conservator of Forest in his order dated 22-12-1999. Copy of order No. 186 dated 22-12-1999 is attached with the caveat as Annexure. 'RD'. The order regarding promotion of respondent No.1 having attained finality by virtue of law, the same could not have been cancelled by the Conservator of Forest after the lapse of eight months. The order, thus, passed by the Conservator of Forest was patently illegal and without jurisdiction which has rightly been set aside by the Service Tribunal through the impugned judgment which does not merit interference by this Court. The learned counsel submitted that the petitioner has been unsuccessful in challenging the order of promotion of respondent No. 1 in the earlier round right from the office of Secretary Forest up to the High Court and then before the apex Court. The orders having merged into the appellate orders of the high forums, could not have been reopened by the Conservator of Forest in any shape. The order passed by the Conservator of Forest was without jurisdiction from this angle as well which has rightly been set aside by the Service Tribunal. According to the learned counsel the order dated 22-12-1999 has been passed by the Conservator of Forest in the absence of a valid appeal. Therefore, the same is totally without jurisdiction which has been set aside by the Service Tribunal for valid reasons.

6. I have examined the impugned judgment passed by the Service Tribunal wherein the Service Tribunal has observed at pages 2 and 3 of its judgment in the following manner: "(i) From the service record of appellant, Sarwar Hussain Shah, (respondent herein) it is proved that he was appointed as Forest Guard vide order of the official respondent dated 13-4-1975. This entry. is incorporated in his Service Book as 1st appointment and signed by the concerned officer. This date is not even disputed by respondent No.4 (petitioner herein) in written statement and written arguments. (ii) From the service record of respondent No.4 (petitioner herein) it is established that he was first time appointed as Forest Guard in place of one Ghulam Mustafa, his real brother vide order dated 22-9-1976 for six months in the leave arrangement. It is necessary to note that there is no mention in this order that respondent, Ghulam Sarwar, was already inducted in Forest Department in capacity as Kuth Guard. (iii) After expiry of six months leave arrangement, the respondent (petitioner herein) was regularly appointed against the vacant post of Forest Guard vacated by Ghulam Mustafa. In the service book of respondent No.4 (petitioner herein) the date of his first appointment is entered as 1-3-1977 which is signed by him at Serial No.8 of Service Book and by concerned officer at Serial No.9. The appointment order and entry- in Service Book are in consonance with each other and are above all doubts. (iv) The contention of respondent (petitioner herein) that he was appointed as Kuth Guard in the year 1974 and on the basis of his appointment as Kuth Guard he was given the seniority and was promoted as Forester in the year 1997 is not supported by record." According to the Service Tribunal no order of appointment of petitioner herein as Kuth Guard was available in his personal file; had it been so, the same would have been mentioned in the first appointment order of petitioner dated 22-9-1976 and in the other order dated 1-3-1977. Even otherwise this contention of the petitioner is belied by the entry in his service book and his regular order of appointment dated 1-3-1977. So it was observed by the Service Tribunal that the appointment of petitioner herein was made on 1-3-1977 and he was junior by length of service to respondent No.

1. It was further observed by the Service Tribunal that in the seniority list of the year 1994 the date of appointment of both the incumbents is entered. Respondent No. 1 is entered at Serial No.9 while the petitioner is entered at Serial No.

19. This seniority list, according to the Service Tribunal, is in accordance with the service record of the contesting parties.

7. Mr. Abdul Rashid Abbasi, the learned counsel for respondent No. 1, also contended that if any false statement has been' made by the Forest Department which is against the record, his client is not bound by such an assertion.

8. The Service Tribunal has rightly pointed out that according to the record submitted by the Forest Department, Order No.27 of 1974 is not the order of appointment of Kuth Guard but it it is an order of lost of some forest wood. Moreover its dispatch number is 1984-89 issued on 21-12-1974, whereas, no dispatch number is present in the file regarding appointment of petitioner as Kuth Guard. It was therefore, observed by the Service Tribunal that the order of appointment of petitioner as Kuth Guard is a fake document. It was further observed by the Service Tribunal that had the petitioner been appointed as Kuth Guard in 1974, which is a post of Grade B-2, then why he has accepted the temporary appointment as Forest Guard B-2 and he was admittedly confirmed on this post on 1-3-1977. In the seniority list annexed with the file of Service Tribunal at page 174, which was submitted by the Forest Department, the date of appointment of the petitioner is mentioned as 1-3-1977 which is signed by him at Serial No.8 of Service Book and by concerned officer at Serial No.9.

9. In view of above, I am of the view that the petitioner has failed to make out any case for grant of leave. The impugned judgment passed by the Service Tribunal on 4-10-2003 suffers from no infirmity or illegality nor any point of vital legal importance is involved in this petition; the same therefore stands dismissed. In view of dismissal of petition for leave to appeal, the stay order issued by this Court on 9-10-2003 also stands vacated. S.A.K./395/SC(AJ&K) Petition dismissed.