SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).-This service appeal under section 4 of the Azad Jammu & Kashmir Service Tribunal Act (hereinafter referred to as an Act) is directed against the Government Order No. Admin/18453-57/75 dated 22-9-1975 whereby respondent No. 4 was promoted to the post of District Qazi by the respondent No. 1.
2. The brief facts leading to this appeal arc that few persons including Muhammad Abdul Aziz Abassi the appellant and Molvi Muhammad Ashraf Shah Kazmi the respondent No. 4 were temporarily appointed on ad hoc basis as Tehsil Mufties by Government respondent No. 1 vide its order No. Ifta/78-85/72 dated 5-1 i-1972 and were later on confirmed as such on the recommendation of Public Service Commission vide Government Order No. 3214-25/73 dated 7-10- 1973. The Government respondent after some time promoted the respondent No. 4 to the post of District Qazi vide its order No. Admin/1853-57/75 dated 22-9-1975.
3. Feeling aggrieved by the aforementioned order of promotion of the said respondent, the appellant has filed the present appeal with the prayer that by setting aside the impugned order he be promoted to the post of District Qazi in place of the promotee respondent. He has challenged the impugned order on the sole ground that he being senior to the respondent No. 4 in the cadre of Tehsil Mufties on account of having submitted the joining report earlier than him was entitled to promotion to the post of District Qazi in preference to the said respondent.
4. The respondents have contested the appeal and put in written objec--tion which are mainly to the effect that the appeal is barred by time; that the appeal is not competent as no appeal lies against the order of promotion and that the appellant was not senior to the promotee respondent at the time of making the impugned order.
5. We have heard the learned counsel for the parties and have also gone through the relevant record of the case. The arguments of the learned counsel for the respondents regarding the incompetency of an appeal against the order of promotion like the impugned one has much substance in it. The right of appeal to an aggrieved civil servant before this Tribunal is given by section 4 of the Act but its proviso (b) (i) specifically takes away the jurisdiction of the Service Tribunal to entertain and hear an appeal against an order of the competent authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade. By the impugned order from amongst the Tehsil Qazies the respondent No. 4 was promoted to the post of District --Qazi and as such the appeal is clearly hit by the bar created by the aforesaid provision of law as it is against the order of the departmental authority determining the fitness or otherwise of the appellant and respondent No. 4 to be promoted to higher post or grade, It may not be out of place to mention here that it is not the case of A the appellant that while making the impugned order he was not consider for promotion to the post of District Qazi by the respondent No. 1.
For the reasons stated above we have no hesitation in holding that was the Present appeal is riot maintainable before the Service Tribunal.
6. Even otherwise the appellant has no case on merits. The appellant claims preferential entitlement to promotion as compared to respondent No. 4 to the post of District Qazi by reasons of being senior as Tehsil Qazi 'to the said respondent but neither he nor his counsel has been able to show any law or service rules under which the appellant could claim seniority over the said respondent at the time of passing the impugned order. The contention of the learned counsel for the appellant that the appellant was senior to the respondent No. 4 at the relevant time because after having been appointed as Tehsil Mufti alongwith said respondent and other he had submitted the joining report a day earlier than the promotee-respondent is without any merits. The appellant and respondent No. 4 alongwith some other person, were appointed temporarily as Tehsil Mufti-" on the same date and were also confirmed in that capacity on the same date. Thus the appellant and the respondent No. 4 being the appointee of the same date the seniority between them was required to be determined by rule 24 (a & b) of Kashmir Service Regulations, Volume II which reads as under :- Rule 24 (A & B) of K. S. R.
"(a) The seniority of a person who is subject to these rules has reference to the service, class, category or grade with reference to which the question has arisen. Such seniority shall be determined by the date of his first appointment to such service, class, category or grade, as the case may be.
(b) Where the date by which seniority is determined under sub-rule (a) i.e. The same in the case of two or more members of a service, class, category or grade, their seniority inter se shall be determined by the order of preference laid down by the appointing authority in their case. If no such order of preference is laid down, or in case of doubt, seniority shall be determined by the appointing authority."
7. The above provision of law would show that the inter se seniority between the appellant and respondent No. 4 was to be determined by the appointing authority, which was government in the present case either in the letter of their appointment itself by laying down to it their order of preference and if it was not so determined or was doubtful, then by a separate order. In the instant case the Government while confirming the temporary appointment of Tehsil Qazies, had also determined their inter se seniority by categorically stating in its order number E3moor-Diniya/3214- 25/73 dated 7-10-1973 that their Inter se seniority will be in the same order of preference as their name appear in the said order. In the above said order the name of the appellant finds place at S. No. 6 in order of preference whereas the name of respondent No. 4 appears at S. N.
4. It is, of course, true that the seniority of the Tehsil Mufties fixed in the aforementioned order was modified by Government Order No. 3445-49/75 dated 5-11-1975 to the extent that Molvi Syed Habib-ur-Rehman Shah was made senior to respondent No. 4 but even after this amendment the seniority of the said respondent vis-a-vis the appellant remained un-effected and thus he was definitely senior to the appellant at the time of his promo--tion to the post of District Qazi. The learned counsel for the appellant has not been able to show any service rules under which among the appointees of the same date in a particular service the one who submits his joining report first becomes senior to others.
7-A. For the foregoing reasons the appeal fails both on legal grounds as well as, on merits and accordingly the same is dismissed with no order as to costs.
8. The parties shall be informed of this order.
KH. GHULAM QADIR (MEMBER).-I agree.