' KHAWAJA MUHAMMAD SAEED, J---Supra titled appeals, with leave of the Court, are directed against the judgment of the Service Tribunal dated 14-12-2001. As the identical questions of law and facts are involved in both of them, therefore, these are disposed of through this common judgment.
2. The facts giving rise to the present appeals, briefly stated, are that both the appellants were inducted as Junior Clerks in B-5 in the Education Department of Azad Jammu and Kashmir after the induction of private respondent as Junior Clerk B-5 in the same department. They were promoted as Senior Clerks in B-6 and Head Clerks in B-10 after the promotion of private respondent in B-6 and B-10. In the year 1983, two separate Directorates of Schools and Colleges were established in the Education Department by the Government. The private respondent was posted in the Directorate of Colleges, whereas the appellants were adjusted through posting orders in the Directorate of Schools. A tentative seniority list was prepared of low grade employees of the Education Department serving in college cadre in which the private respondent was shown at serial No.14, posted in Girls College Bagh. In the same way a tentative seniority list for ministerial staff of Education Department serving in school cadre was also drawn in which both the appellant were entered. Gul Zaman Awan, appellant, was entered at serial No.6, whereas Ghulam Hussain Gannai, the other appellant, at serial No.7. All the concerned employees were directed to file their objections, if any, about the correctness of any entry upto 25-7-1985. No person filed any objection about these seniority lists which shows that the parties were satisfied about the entries of both the tentative seniority lists circulated by the Education Department. Therefore, the private respondent was senior to the appellants up to Head Clerk, B-10. On 25-1-1986 the appellants were promoted as Accountant, B-11. Their promotion order was never challenged by the private respondent, therefore, on account of this reason the private respondent was declared junior to the appellants by the departmental authority. The appellants were given Selection Grade B-14 on 25-5-1986.
Subsequently the same post was upgraded to B-15 w.e.f. 1-7-1987. Resultantly both the appellants, as holders of the posts, were automatically upgraded to B-15 w.e.f: 1-7-1987. Thereafter the appellants were promoted as Superintendents B-16 with retrospective effect from 8-4-1992 and as selection grade Superintendents B-17 w.e.f. 1-10-1995. The series of these beneficiary orders in favour of appellants were neither challenged by the private respondent before the departmental authority nor before any forum established by law. Gul Zaman Awan, Appellant, herein, in Civil Appeal 22 of 2002, was lastly promoted as Assistant Director B-17 w.e.f. 25-7-1999 Side notification dated 21-6-2000.
3. Another seniority list of ministerial staff of the Education Department serving in schools and colleges both was circulated in which appellant, Gul Zaman Awan, was shown at serial No.4 and the other appellant at serial No.5, whereas the private respondent was entered at serial No.7. On the basis of promotion of the appellants in B-11 they were placed ahead of private respondent in the seniority. However while circulating this seniority list all the employees were directed to submit their objections, if any, within a period of one month. It was made clear that beyond this period no objection shall be entertained. It was further entered in the closing note of the seniority list that the entries made in this seniority list have been taken from pat seniority lists.
4. It is not the case of the private respondent that he challenged the legalities of these entries either before any departmental authority or before any Court established by law. However there is a notification at page 101 of the paper book which shows that both the appellants filed appeals before the Secretary Education challenging the seniority of Shah Zaman Abbasi, Ghulam Hussain Shah and Nazir Ahmed Mir, who at the relevant time were posted as Head Clerks in various officers of the Education Department. Their appeals were allowed on the ground that they were promoted in B-11 earlier than those persons and also on the ground that they had refused to serve outside the municipal limits of Muzaffarabad city against the post of Accountant B-11. On the basis of result of their appeals, the appellants were entered in the seniority list of ministerial staff of the Education Department ahead of these persons. However no final seniority list was ever prepared by the Education Department.
5. The contesting respondent who was promoted as Head Clerk in B-10 on 21-5-1978 on account of revision of pay scales of the post of Head Clerks got up-gradation of his post from B-10 to B-11 vide notification dated 25-7-1987. He was subsequently awarded Selection Grade B-15 on 14-1-1987 w.e.f. 1-7-1987 and promoted as ' Superintendent B-16 w.e.f. 25-10-1995, as compared to the appellants who were promoted as Superintendents B-16 w.e.f. 8-4-1992. On 6-7-1999 the private respondent filed first appeal before the Service Tribunal challenging the order dated 12-2-1995, regarding the promotion of the appellants as Superintendents B-16 w.e.f. 8-4-1992. His appeal was entered at serial No.217. He filed second appeal No.343 of 1999 on 30-9-1999, before the Service Tribunal whereby he challenged the notification dated 1-7-1999, regarding the 'promotion of the appellant, Gul Zaman Awan, as Assistant Director Schools in B-17 on current charge basis. On 18-8-2000 he filed third appeal No.364 of 2000, challenging the notification dated 21-6-2000 regarding the regular promotion of Gul Zaman Awan, as Assistant Director Schools in 3-17 w.e.f. 27-7-1999. As the parties to the litigation were the same and dispute listed in the appeals was in respect of promotion and seniority, therefore, the Service Tribunal felt it appropriate to consolidate all the three appeals for joint proceedings. After necessary proceedings as required by law through common judgment dated 14-12-2001, the Service Tribunal accepted all .The three appeals of private respondent. The order of promotion of the appellants as Superintendents B-16 dated 12-2-1995 was amended, instead of the appellants the private respondent was promoted from the aforesaid date as Superintendent B-16. The date of promotion of the appellants thus as Superintendent B-16, was.
Changed from 8-10-1992 to 25-10-1995. The order dated 1-7-1999, regarding the promotion of Gul Zaman Awan as Assistant Director Schools B-17 on current charge basis and his permanent promotion as such in B-17 on regular basis, was set aside by holding the private respondent as senior to him. The . Order of promotion of other appellant as Superintendent B-16 was also amended. He was held entitled to promotion as Superintendent B-16 from 25-10-1995 instead of 8- 4-1992 and the private respondent was held entitled to promotion as Superintendent B-16 from 8- 4-1992 instead of 25-10-1995. The official respondents Nos.2 to 5 were directed to include the name of private respondent in the panel meant for the consideration of Departmental Selection Board for further promotion. This judgment of the Service Tribunal has been assailed before this Court by the appellants through the present appeals on various grounds.
6. Mr. Abdul. Rashid Abbasi, the learned counsel for the appellant, Gul Zaman Awan, argued that his client in his written statement had never admitted the seniority of the private respondent beyond B-10,. Therefore, the judgment of the Service Tribunal is based on misreading and non-reading of record, as such, is not maintainable. According to him in the written statements of his clients, copies of which have been placed at pages 49 to 59 of the paper book, the relevant contents contained in paras. 1 and 4 of the appeal have been denied. If the private respondent in the tentative seniority list was wrongly placed below the appellants. He should have challenged the correctness of the same firstly before the departmental authority and then before the Service Tribunal which at the relevant time was the requirement of section 4 of the Service Tribunals Act, 1975. The reliance was placed upon cases titled Nazar Ahmed Khan v. Syed Sabir Hussain Naqvi and 3 others 2001 PLC (C.S.) 303 and Muhammad Ilyas Khan and 6 others v. Sardar Muhammad Hafeez Khan and 3 others 2001 PLC (C.S.) 445, wherein it is laid down that the seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to a post in that grade. He also relied upon a case titled Muhammad Ilyas Khan and 5 others v. Sardar Muhammad Hafiz Khan and 4 others 2002 PLC (C.S.) 1282, wherein the retrospective promotion was not challenged by the appellant within the period of limitation and it was laid down that even a void order adversely affecting the interest of a person should be challenged within a reasonable time. In this case the relevant petition was dismissed on account of indolent and negligent attitude of the petitioner who had not challenged the retrospective promotion of the respondent within time.
7. It was further argued by the learned counsel for the appellant that private respondent in the seniority list was placed at serial No.7 ahead of his client and one Ghulam Hussain Shah was entitled in the same seniority list at serial No.6. The seniority of Ghulam Hussain Shah was challenged by the appellants and their appeals were allowed and appellants were ordered to be entered ahead of Ghulam Hussain Shah in the seniority list, Ghulam Hussain Shah moved an application before the Service Tribunal in appeal No.217 of 1999 filed by the private respondent for being impleaded as a party. The private respondent before the Service Tribunal admitted Ghulam Hussain Shah senior to him. On account of this reason Ghulam Hussain Shah did not press his application before the Service Tribunal for impleading him in the line of respondents to defend his case of seniority against the private respondent. He further argued that the private respondent alter admitting Ghulam Hussain Shah senior to him is not justified in law to claim seniority against the appellants who are already entered ahead of Ghulam Hussain Shah in the same seniority list.
According to him, even if the seniority list was void then too there was no justification for the private respondent to sleep over the matter for an indefinite time. According to the learned counsel when this tentative seniority list was circulated among the members of the ministerial staff of Education Department the private respondent should have filed his objections within the period fixed in the foot note of the same list or challenged the result of the appeals decided by the Secretary Education in favour of appellants, against Ghulam Hussain Shah and others who were declared ahead of private respondent in the seniority list but no departmental remedy or appeal before the Service Tribunal was filed by him within the prescribed period of limitation, therefore, the entry of the appellants ahead of the private respondent had attained finality which was wrongly ignored by the Service Tribunal while drafting judgment under challenge in the present cases. The indolent attitude of the private respondent was altogether ignored while allowing remedy in his appeal by violating the service laws applicable in the Azad Jammu and Kashmir. In this regard he strenuously argued that despite this fact that-question of limitation was specifically raised in the written statements and was pressed in the written arguments but the same was not resolved by the.
Service Tribunal. The lethargic attitude of the Service Tribunal in this regard cannot be appreciated.
According to. Him in para. 6 of the written statement it was specifically pleaded by the appellants that the private respondent was in know of the promotion of the appellants but he never challenged the same. In support of this assertion an affidavit was also filed by the appellants but neither any counter-affidavit was filed by the private respondent nor the assertions of the appellants in the aforementioned para. Of written statement was specifically denied by him in his replication.
8. Mr. Abdul Rashid Abbasi, the learned counsel for Gul Zaman Awan, further argued that appeals Nos.217/99 and 343/99 filed by the private respondent before the Service Tribunal on 6-7-1999 and 30-9-1999 were liable to be dismissed on the ground that before invoking the appellate jurisdiction of the Service Tribunal the private respondent had not availed the departmental remedy as was required by law applicable at the relevant time. He referred his written statement in which this objection was specifically raised by the appellants but the same was not attended to by the Service Tribunal while drafting the judgment under challenge. He also brought to our notice the written arguments which were submitted on behalf of the appellants by their learned counsel in which this objection was once again. Pressed. The failure on the part of Service Tribunal to resolve such important legal objection without assigning any reason renders two consolidated judgments as invalid and liable to be set aside. He admitted that private respondent was senior to the appellants upto B-10. However, according to him, the appellants were promoted in B-11 w.e.f. 25-1- 1986 as compared to the private respondent who availed this pay scale on 25-5-1986, when post of Head Clerk was upgraded from B-10 to B-11 vide notification dated 25-7-1987. According to him, the private respondent did not challenge the promotion of the appellants in B-11 either before the departmental authority or before the Service Tribunal. Thus by his conduct he waived his seniority.
The appellants were also granted selection grade B-14 which order he never challenged before the departmental authority or before the Service Tribunal, therefore, the appellants who were given better grade were rightly promoted as Superintendents B-16 ahead of private respondent. He further argued that the promotion of appellant Gul Zaman Awan on current charge basis against a post in B-17 and then his regular promotion in B-17 against the same post was in accordance with the service laws applicable in this part of the State. Lastly it was argued that the private respondent is not qualified to be promoted in B-16 as he lacks the prescribed length of service in B-11 but the Service Tribunal failed to apply the correct law while allowing relief to the private respondent.
9. Sardar Muhammad Habib Zia, the learned counsel for Ghulam Hussain Gannai, the appellant in Civil Appeal No.50 of 2002, owned the arguments addressed by the learned counsel for Gul Zaman Awan and submitted that appeals Nos.217 and 343 of 1999 were filed without availing the departmental remedy, therefore, these appeals were liable to be dismissed summarily on this ground; whereas the appeal No.364 of 2000 was filed after the prescribed period of limitation without furnishing any valid ground for the condonation of delay. According to him, the assertion of the private respondent that he was not aware of the promotion of appellants in B-11 was not sufficient to bring his appeal within limitation. He should have specifically mentioned in detail the facts and supported the same through an affidavit. On the basis of general pleadings the time fixed by law cannot be relaxed in favour of a negligent party. The reliance was placed upon a case titled Ch. Ajaib Hussain and another v. Mst. Zareen Akhtar and 11 others 1999 YLR 1426 and unreported judgments of this Court in cases titled Muhammad Mushtaq Khan v. Board of Revenue decided on 25-11-1998 and Azad Kashmir. Cooperative Bank v. Sardar Muhammad Ashraf Khan, decided on 9-8-2001.
10. Raja Ibrar Hussain, the learned Advocate-General, supported the arguments of Mr. Abdul Rashid Abbasi, and Sardar Muhammad Habib Zia, the learned counsel for the appellants. According to him, the private respondent has waived his right by not availing the departmental remedy against the promotion orders of the appellants in B-11 and other orders passed thereafter, through which the appellants were given further better grades, therefore, the belated appeals filed by him in the Service Tribunal were liable to be dismissed, whereas without any justifiable reason through impugned judgment his appeals were allowed.
11. Conversely Mr. M. Tabassum Aftab Alivi, the learned counsel for the private respondent, argued that the promotion order of the appellants in B-11 was bad in law as in their promotion order the words Hasab Safarish Selection Committee' were not mentioned. He said that only such official acts are respected by the Courts which stood performed in accordance with the scheme laid down by law. It was further submitted that his client had never given his choice for adjusting him in college cadre at the time when Education Department was bifurcated in schools and colleges cadres. He strenuously opposed that any benefit can be extended to the appellants on the basis of tentative seniority lists. He further argued that all the seniority lists contained a foot note that any person whose entries are incorrect may file objection within a period fixed therein. There was also a note that if no objections are filed then the same seniority list shall be made absolute but no final seniority list was ever published/issued by the Education Department, therefore, on the basis of the entries recorded in the tentative seniority list the appellants are wrongly claiming the benefit of seniority over his client. According to him, the official respondents in their written statement admitted the seniority of his client. Even the official respondents have not specifically denied paras 'A' and '13' of the grounds of appeal. He referred the written statement filed by the official respondents and page 51 of the paper book, the written statement filed by the appellants, and submitted that as material question of fact was not denied in their written statement, therefore, it shall be assumed that the grounds 'A' and 'IV contained in the memorandum of appeal of the appellants in appeal No.217 of 1999 was admitted by the appellants as well as by the official respondents. The reliance was placed upon the following authorities:--
(1) Qurban Hussain v. Mst. Bashir Begum and 6 others (PLD 1986 SC (AJ&K) 109) and
(2) Muhammad Lal v. Mohko and 2 others (PLD 1979 SC (AJ&K) 15).
12. He also relied upon annexure (I), a seniority list in which the name of the private respondent was entered at serial No.23 as against the appellants who are entered at serials Nos.26 and 27, therefore, as his client was ahead of the appellants in the seniority list, therefore, there' was no justification to ignore him while promoting the appellants in B-16. While meeting the objection of limitation he argued that his client was sent in college cadre without his consent and during the period the appellants were given promotion in B-11 without considering his merit and without the recommendations of the relevant Selection Board. Therefore, their promotions cannot deprive his client from his seniority who admittedly was senior to them up to B-10. According to him, when the illegal promotions of the appellants came in the knowledge of his client, he after obtaining the copies of the relevant documents, filed appeals in the Service Tribunal. By allowing his appeal it shall be presumed .That the Service Tribunal excused the delay in filing appeals before it.
Alternatively he argued that in service matters the limitation shall start from the date when order is communicated to the aggrieved civil servant.. In this case the orders of promotion of the appellants were never communicated to his client, therefore, limitation cannot commence from the date when such promotions were given to the appellants. The reliance was placed by him on the following authorities which are as under:--
(1) Qazi Faizul Haq v. Govt. Of N.-W.F.P. Through Chief Secretary Peshawar (1987 SCMR 110);
(2) Tasneem Yaseen v. Azad Govt. And 11 others (2004 PLC (C.S) 850)
(3) Sardar Muhammad v. The Chief Administrator, Auqaf (1989 PLC (C.S.) 262).
13. Lastly he argued that the points which have been raised before this Court were not pressed before the Service Tribunal as the learned counsel for the appellants failed to appear before it for arguments, therefore, the points not argued before the Court below cannot be allowed to be raised for the first time in appeal before this Court. The reliance was placed upon the following authorities:--
(1) Raja Muhammad Sohrab v. AJ&K Govt, and 6 others 2002 PLC (C.S.) 1138;
(2) Inhabitants of Singola through Muhammad Hanif and another v. Azad Government and 22 others 2001 YLR 3190; and
(3) Mst. Farooq Bibi v. Abdul Khalid and 26 others (1999 CLC 1358).
14. We have considered the respective arguments of the learned counsel. For the parties and gone through the record of the case. The dispute between the parties is in respect of their seniority and promotion. Admittedly, as is apparent from the facts mentioned in detail in the opening part of this judgment, the parties were inducted in service in the ministerial staff of Education Department.
Upto BPS-10, the private respondent was senior to the appellants according to his length of service as he was inducted in service earlier than the appellants and he also got promotion upto this grade ahead of appellants. Before resolving the dispute between the parties, it appears appropriate to have a look of the law, which is applicable in this part of the State. The Azad Jammu and Kashmir Civil Servant Act was enforced in the year 1976. Prior to that Kashmir Civil Service Rules in two volumes were enforced. In the Civil Servants Act, 1976, the word 'promotion' has not been defined. However in rule 1, Kashmir Civil Service Rules, volume H, this term was defined in the folios, ing words:- "The appointment of a member of a service or class of service in any category or grade to a higher category or grade ot such service or class."
' Keeping in view this definition, it was laid down in a case titled Sh. Ghulam Ahmed v. Government of Azad Jammu and Kashmir (PLD 1968 AJK 64), that on careful analysis of this definition; it can easily be inferred that what is essential to constitute a promotion is the appointment of a public servant from a lower category or class to a higher category or class of service. Under Civil Servants Act, 1976, as said earlier, the term 'promotion' has not been defined. However under sections 8 and 8-A, how promotion is to be made, is given. These provisions being relevant are reproduced below:-- "8. Promotion.--(1) A civil servant possessing such minimum qualification as may be prescribed shall be eligible for promotion to a post, for the time being, reserved under the rules for departmental promotion in any higher grade of the service or cadre to which he belongs.
(2) A post referred to in subsection (1) may either be a selection post or a non-selection post to which promotion shall be made as may be prescribed.
(i) in the case of a selection post, on the basis of selection on merit; and
(ii) in the case of non-selection post, on the basis of seniority -cum-fitness.
8(A) Out of turn promotion etc.---Notwithstanding anything contained in this Act or any other law for the time being in force or in any contract, or rights claimed or acquired under any judgment of any Court or Tribunal, civil servant who provenly exhibits exemplary intellectual, moral and financial integrity and high standard of honesty and gives extraordinary performance in the discharge of his duties, may be granted out of turn promotion or award or reward in such manner as may be prescribed."
15. From the bare reading of the above referred provisions, it becomes clear that further promotion in case of a selection post, the selection is to be made on merits and not on the basis of seniority, whereas in the case of non-selection post, the promotion is to be made on the basis of seniority- cum-fitness. From the bare reading of the above referred provisions of law. It becomes clear that promotion to the next higher grade cannot be claimed as of right, therefore, whether promotion should be given to a particular civil servant or the same should be refused to him, appears to be within the exclusive discretionary domain of the concerned competent authority. However, a person possessing such minimum qualification as is prescribed for a particular post, having unblemished service record and fulfilling other requirements as laid down for next higher post, can claim right for consideration for his promotion which definitely is not equal to right of promotion.
The words used in section 8 subjection (2) clauses (a)and (b) "Selection on merit or on the basis of seniority-cum-fitness" show that the competent authority has to consider while assessing their merit, experience gained, rectitude and antecedent service record. If these are equal in the wisdom of the competent authority, then the person having better qualification can claim edge over the contesting candidates. In 1957 the Government of West Pakistan vide Circulation Letter No.S(R)1- 13/57 dated 1-8-1957, laid down following principles to regulate promotion.
"Principles to regulate promotion.---In 1957, the Government of West Pakistan laid down the following principles to regulate promotion:- ( ) the principle of promotion from one post to another should be by selection on merit with due regard to seniority, and this principle should be applied uniformly all along the line from the lowest to the highest posts and from one class of service to-another;
(2) merit does not mean good service record only. It includes experience, qualifications and suitability for the post or service to which promotion is being made;
(3) the words "with due regard to seniority" imply that while emphasis is to be placed on good service record, qualifications and aptitude for the higher post, the officer's relative seniority in the cadre from which promotion is being made should be given due weight, the greater the disparity in seniority , the greater should be the junior officer's superiority in merit. West Pakistan Circular Letter No.S(R) 1-13./57, dated 1-8-1957."
16. The case-law which we have studied about the promotion shows that the sole Judge to determine the suitability for promotion to a particular post is the competent authority of the department and this principle can be interfered with only in a case of proved mala fide i.e. That the antecedent service record of the parties was ignored and any law on the subject was infringed. The respondent was F.A. As compared to appellants who are just matric but mere academic qualification has not been recognized sole criteria for determining comparative merits. The competent authority is required to look into experience, seniority, competence the past service record in addition to rectitude of the parties.
17. In the present case the respondent remained senior to the appellants upto the post of Head Clerk B-10. In the year 1983 two separate directorates for schools and colleges were established.
The parties without their consent were adjusted in different directorates. The appellants were adjusted through posting orders in the directorate of schools while private respondent was posted in the directorate of colleges. Separate tentative seniority list of the ministerial staff of schools and colleges were circulated. We have noticed that in the tentative seniority list prepared for low grade employees of the Education Department serving in college cadre, the private respondent was placed at serial No.14 and was shown posted in Govt. Girls College Bagh, whereas in the tentative seniority list for ministerial staff of Education Department serving in school cadre, the appellants were entered at serials Nos.6 and 7 respectively. All the concerned employees were asked to file their objections, if any, about the correctness of any entry upto a definite date. It is not the case of the parties before us that anyone out of them challenged the correctness of the entries recorded in these tentative seniority list. We have noticed that no final seniority list was ever drawn by the department, however, in the aforementioned tentative seniority list the employees, as said earlier, were directed to file their objections if any, upto certain date and it was further laid down in the foot note that in case no objection is filed, the final seniority list shall be drawn in the light of such tentative seniority list. On the record, there is a joint seniority list which was subsequently prepared by the department, in which both the contesting parties were entered at different serial numbers.
Undoubtedly the private respondent was shown ahead of the appellants. We have noticed that Shahzaman Abbasi, Ghulam Hussain Shah and Nazir Ahmed Mir, were shown the members of ministerial staff of Education Department, and were entered ahead of the private respondent. All these persons were Head Clerks by rank and were serving, as such, in various offices of Education Department. Both the present appellants challenged their seniority before the competent departmental authority. Their appeals were allowed and they were ordered to be entered ahead of them on the ground that even though aforementioned persons had longer length of service as compared to appellants but the benefit was granted to appellants on the score that they got promotion in B-11 earlier than those persons. Moreover the aforesaid employees had refused to serve outside the municipal limits of Muzaffarabad city in, past. On account of this reason even in the joint tentative seniority list which was circulated on 6-8-1992, the appellants were shown much senior to the private respondent. The private respondent never filed his objections about this seniority list thus at this belated stage he cannot be allowed to challenge it on the ground of lack of knowledge. If others got knowledge of this tentative seniority list and contested for their rights before the departmental authority, why this list was concealed from the private respondent. It was for him to explain the cause but the same is missing.
18. Now from the admitted facts it becomes clear, that the appellants were promoted as Accountant B-11 ahead of private respondent. Their order of promotion was never challenged by the private respondent. They got the selection grade B-14 on 25-5-1986. Later on a selection grade post was upgraded to B-15 with effect from 1-7-1987, resultantly both the appellants were automatically upgraded to B-15 with effect from 1-7-1987. They were promoted as Superintendents B-16 with retrospective effect from 8-4-1992 and as selection grade Superintendents B-17 with effect from 1-10-1995. The series of these beneficiaries orders in favour of the appellants, were ever questioned by the private respondent either before the departmental authority or before any forum or Court established by law to resolve the dispute between civil servants.
19. From the above referred facts, it becomes clear that no doubt upto B-10 the private respondent was senior to the appellants but onwards the appellants were promoted in better grades earlier than respondent. If a person senior in grade is superseded through promotion by a junior and later on he is also promoted to that grade, the junior who was promoted first, shall rank senior to that person who even though was senior in lower grade but was promoted subsequently. We are fortified by the authority of this Court in a case titled Muhammad Ilyas Khan and 5 others 2002 PLC (C.S.) 1282, wherein it was laid down as under:- "8. So far as the contention of the learned counsel for the petitioners that under rule 8(1)-B Explanation II of the Azad Jammu and Kashmir Civil Servants (appointment and Conditions of Service) Rules, 1977, if a person junior in a lower grade is promoted to higher grade by superseding his senior and subsequently the latter is also promoted, the promoted first shall rank senior to the one promoted subsequently is concerned there is no cavil with the said principle. However in the present case the appeal was dismissed on the ground that as respondent Sardar Muhammad Hafeez Khan was promoted in the year 1995 with retrospective effect from 1987 and the said order was not challenged by the petitioners, herein, the same has attained finality. It needs hardly any authority that the seniority of a civil servant would be reckoned from the date of his regular promotion. As Sardar Muhammad Hafeez Khan was regularly promoted from the year 1987, his seniority would be reckoned from the said date, irrespective of the fact as to whether the retrospective effect to his promotion from 1987 was legal or not, because that was not challenged by the petitioners and had attained finality.... .... ...."
' In a case titled Ejaz Ahmed Awan and 5 others v. Syed Manzoor Ali Shah and another 1999 PLC (C.S.) 1439, it was observed as under:-- .... ....For instance if two Senior Teachers are serving in same category which has the same pay scale, one who was appointed in the said pay scale earlier would be deemed to be senior to the other and if junior one is promoted to the higher pay scale as being eligible for the promotion after having acquired the requisite training, he would be senior after his promotion, despite the fact that he was junior in the lower pay scale before his promotion. .... ..... "
' The other collateral points which agitated by the parties have little bearing on the main controversy, therefore, need not be discussed in this judgment. However two appeals Nos.217 and 343 of 1999 filed by the private respondent before the Service Tribunal were even otherwise not maintainable as these were filed without availing the departmental remedy. At the relevant time section 4 of the Service Tribunals Act, 1975, was as follows:-- "4. Appeals to Tribunals.--(1) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority, in respect of any of the terms and conditions of his service, may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal: ' Provided that:--
(a) Where an appeal, review or representation to a departmental authority is provided under the Azad Jammu and Kashmir Civil Servants Act, 1976 or any rules, against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or an application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred;
(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed or to hold a particular post or to be promoted to higher grade; and
(c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the Ist July, 1969: ' Provided further that question relating to eligibility, mala fide and Coram Non Judice may be decided by the Tribunal.
(2) Where the appeal is against an order or decision of a departmental authority imposing a departmental punishment or penalty on a civil servant , the appeal shall be preferred:--
(a) in the case of a penalty of dismissal from service, removal from service, compulsory retirement or reduction to a lower post or time-scale or to a lower stage in a time scale, to a Tribunal referred to in subsection (3) of section 3; and
(b) in any other case, to a Tribunal referred to in subsection (7) of section 3, and where no such Tribunal is established, to a Tribunal established under subsection (3) of that section."
20. From the language in which this section was couched, it is clear that it was prerequisite to avail the departmental remedy before invoking appellate jurisdiction of the Service Tribunal. The private respondent had filed these appeals without availing the departmental remedy, therefore, these were not maintainable on this ground.
21. In the light of above, we hold that appellants on account of their promotion in B-11 earlier than private respondent, which order was never challenged by him, became senior to him thereafter and were rightly promoted by the departmental authorities ahead of respondent. The appeals filed by private respondent before the Service Tribunal were without merit. The Service Tribunal, therefore, has wrongly allowed his appeal vide judgment under challenge dated 14-12-2001.
Therefore, while accepting these appeals, the impugned judgment dated 14-12-2001, is set aside.
However keeping in view the peculiar facts of this case no order is passed as to costs.