SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).-The facts out of which this service appeal arises, shortly stated, are that respondents Nos. 2 to 7 were employed as Superintendent in various departments of the Azad Jammu & Kashmir Government whereas respondent No. 8 was an Assistant in a Section of Finance Department and among them the respondents Nos. 2 to 5 were in grade 13 of the National Pay Scale while others were in grade 11. The appellant was a Selection Grade Assistant in grade 15 of National Pay Scale. The Government respondent temporarily promoted the said respondents as Section Officers subject to the recommenda--tion by the Public Service Commission vide its No. Admin 9812-27 dated 11-6-1975 issued under the signature of the Secretary Services, and General Administration Department.
2. Feeling aggrieved by aforementioned order the appellant in the first instance filed a review petition against it before the Government which having remained undecided even after the lapse of 90 days from the date of its filing he has now approached this Tribunal for the redress of his grievances.
3. The case of the appellant is that his seniority was combined with the promotee respondents at the relevant time as per combined seniority list Annexure `B' and that be was senior to them on account of having been placed in a higher grade in National Pay Scale than that of said respondents as compared to whom he also possessed better merits and ability. It is further alleged that because of his seniority the Government respondent was bound to promote him to the post of Section Officer under rules in preference to the promotee respondents. On the basis of the above allegations it is prayed that by setting aside the impugned order the appellant be promoted to the post of Section. Officer- retrospectively w. e. f. 10-7-1974.
4. The appeal has been contested by all the respondents on legal grounds as well as on merits. The legal objections raised in the written statements filed by the respondents are to the effect that the appeal is barred by the time and that the impugned order being a provisional one is not appealable. On merits it is inter alia contended that the seniority of the appellant and the respondents except respondent No. 8 could not be combined as they belonged to different service, class, category and grade at the time of passing the impugned order; that the combined seniority list filed with the appeal as Annexure `B' is not an authentic copy of any seniority list issued by any competent authority and as such cannot be relied upon; that the appellant is placed at S. No. 36 in a seniority list issued by the Government vide No. Admin/15789-15829/ss. 70 dated 29-9-1970, that they were promoted on the basis of merits and ability in accordance with the relevant rules and that the promotion of the respondent No. 8 was made on the recommendation of the Public Service Commission.
5. We have heard the parties present and have also gone through the record of the case. The appellant during the arguments has laid much emphasis on the point that he being the official of the higher grade than that of the promotee respondents was senior to them and thus entitled to the promotion to the post of Section Officer in preference to them under Article 25 (a) (ii) of Kashmir Service Regulations, Vol, II. It is further contended by him that by ignoring him from promotion while making the impugned order the respondent No. 1 has violated the terms and conditions of his service. On the other hand it is contended by respondents Nos. 2 to 7 that the seniority of the appellant could not be combined with them in view of the provisions contained in Article 24 (a) of K. S. R., Vol. Il as being Superintendents they belonged to different service, class, category and grade than that of the appellant who was an Assistant and as such he could not claim seniority over them merely on the ground of having been placed in a higher grade of National Pay Scale as compared to them. It is further contended that even otherwise the appellant had no preferential right of promotion as against them solely on the basis of seniority because under Article 25 (a) (i) of K. S. R., Vol. 11 promotions were required to be made on the basis of merits and ability, seniority being considered only where the merits and ability were approximately equal and that they were promoted in accordance with the said provisions of the K. S. R. Mr. Abdul Rashid Beig respondent No. 8 who was an Assistant at the relevant time has contended that he was promoted by the Government on the recommendation of Public Service Commission made on the basis of the result of an examination held by it for the selection of Officer for appointment to the posts of Section Officers by promotion in which the appellant did not appear and as such the appellant cannot challenge his promotion which has been made under rules on the basis of merits and ability.
6. There is no doubt and it is also not disputed by the respondents that the appellant being a Selection grade Assistant enjoyed higher grade of pay than the promotee respondents at the time of making the impugned order although it is a different matter whether on this, alone he was senior to all of them or not in view of the contentions of the respondents Nos. 2 to 7 regarding their class, category and grade being distinct from that of appellant or if he was senior whether he was entitled to promotion on