' SYED MANZOOR HUSSAIN GILANI, J---This appeal, with leave of the Court, is filed against the order dated 30-9-2004 passed by the Azad Jammu and Kashmir Council Service Tribunal, Muzaffarabad in Service Appeal No,6 of 2002.
2. The appeal was filed before the Tribunal against the orders of Collector Central Excise and Sales Tax, Azad Jammu and Kashmir Council, Muzaffarbad issued under No,Tax/Admin-13/5297- 5302/2000 dated 21-6-2000 and No,Tax.Admin-13/5281-86 dated 21-6-2000, whereby respondents Nos.4 and 5, who were Upper Division Clerks (B-7), have been promoted as Inspectors Income Central Excise and Sales Tax/E&T (B-11). The respondents were initially appointed as Lower Division Clerks on 14-1-1985 and 1-11-1986 and were promoted as Upper Division Clerks on 6-3-1996 and 20- 10-1998 respectively. The appellant was directly appointed as Upper Division Clerk by method of initial recruitment on 27-12-1995.
3. When the posts of Inspectors Income Central Excise and Sales Tax/E&T (B-11) fell vacant, the respondents were promoted against the posts through the orders impugned before the Service Tribunal. These orders were challenged before the Service Tribunal by the appellant on the ground that he was senior to the respondents as Upper Division Clerk, as he was appointed directly to the post and the respondents were promoted later on, hence he should have been promoted to the post of Inspector (B-11).
4. We have heard the learned counsel for the parties and perused the judgment of the Service Tribunal as well as the law cited at Bar.
5. The rules regulating the appointment to the post of Inspector Income Central Excise and Sales Tax/E&T (BS-11) are laid down under notification No,F-II-1/5/80-AJKC dated 5th May, 2000. Ten per cent of the posts are reserved for Supervisors who are graduate and possess five years "service" while ten per cent for Upper Division Clerks/Lower Division Clerks (UDCs and LDCs) who are graduate and possess five years "services". The contesting parties seek promotion against the 10% posts of Upper Division and Lower Division Clerks. It is admitted that none of them possess five years service as Upper Division Clerks, but all of them are graduate, however respondents possess more than five years service as Lower Division Clerks. They have been promoted, on account of possessing five years service as Lower Division Clerks.
6. The argument of the learned Advocate for the appellant that the appellant finds place at S. No,5 of the seniority list while respondent No,5. Arshad Nisar Mir, at S. No,6 and respondent No,6, Muhammad Khalid at S.No,18, hence the appellant should have been preferred for promotion for being senior, runs counter to the rules as the requirement of the rules is that one must possess at least five years "service" as Lower Division Clerk or Upper Division ,Clerk as the case may be.
Seniority alone is not criteria, length of service as visualises by rules, coupled with academic qualification is the criteria.
7. The learned Advocate for the appellant referring to the rules tried to make a distinction between clauses (i), and (ii) of rule 2(b) of the rules regulating the posts which are reproduced as follows:-- 10% posts will be filled in from amongst Supervisors who are Graduates and possess 5 years "services"; and ii. 10% posts will be filled in from amongst UDCs./LDCs who are Graduates and possess 5 years "services."
' He compared these words with column 4 of the rules providing condition of eligibility, prescribing that U.DCs and LDCs must be a graduate and possess five years "service as such". He made the distinction between the word "service" in clause (i) and the word "services" used in clause (ii) of rule 2(b) coupled with the words "as such" used in the eligibility clause of the rules. His contention is that the length of service of two posts cannot be combined together to make a person eligible for promotion, if one lacks the required length of service on the post which he is holding. According to him, length of service of the post which the incumbent is currently holding shall be the criteria not that which one held before that post. He placed reliance upon the case reported as Dr. Khawaja Mushtaq Ahmad v. Azad Government and 5 others 2002 PLC (C.S.) 1398. He contended that when the word "oblique" is used it means "alternate" and not "combination". Similarly, he placed reliance upon another case titled Zainal Abedin v. The State [PLD 1958 Dacca 1671. He contended that the words "as such" relate back to the post one is holding not the combination of the post.
8. It is admitted that the respondents are graduates and possess five years service as LDC not as UDC, while the appellant does not possess the length of service, as he is directly appointed as UDC.
Respondents cannot be deprived of the right of promotion against the posts simply for the reason that they have been promoted to the higher grades where they do not possess required length of service in that grade, although they did possess the required length of service in the lower grade for promotion to the present post. What is visualised by the rules is that one should possess five years service as UDC or LDC, as the case may be, to make him eligible to be promoted to the post of Inspector. Same is the spirit of the precedent cited by the learned Advocate for appellant himself i,e, [2001 SCR 170] that oblique signifies alternate, which means that one C should possess the qualification in either of the two and the words "as such" also relates back to it. One does not lose the acquired right for this reason only that he does not possess the length of service in the upper grade. Had they not been promoted as UDCs, they could still have been promoted to the post of Inspectors for possessing the required length of service as LDCs. The UDCs and LDCs stand at equal footing for promotion to the post of Inspectors provided they possess the required academic qualification and length of service. It would be a non-judicial approach to hold that a person in the higher grade who does not possess required length of service in that grade cannot be promoted while he would have been eligible to be promoted had he been in lower grade for possessing the required length of service in that lower grade.
9. The learned Advocate for the appellant in a benign tone contended that rules are ambiguous and require to be struck down. The Service Tribunal as well as other Courts are to administer the law, which of course includes the rules, as they are, and not as to what they should have been. If one is aggrieved of the rules for being contrary to any provision of Constitution or law, the jurisdiction of appropriate Constitutional Court can be invoked.
' In view of above, finding no fault with the order passed by the IE Service Tribunal, the appeal is hereby dismissed with costs.