SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).-----This is a service appeal under section 4 of the Azad Jammu and Kashmir Service Tribunal Act (hereinafter referred to as an Act) against the order of Director, Health Services No. 2658-60/75, dated 12-5-75, whereby respondent No. 3 Mr. Muhammad Ashraf was promoted to the host of Leprosy Field Officer from that of Senior Leprosy Technician.
2. Brief facts leading to this appeal are that Tassadaq Hussain Shah appellant and respondent No. 3 were both senior Leprosy Technician in the Health Department when the latter was promoted as Leprosy Field Officer vide the aforesaid order of the respondent No. 2.
3. Feeling aggrieved the appellant filed an appeal against the order of promotion of the respondent before the Health Minister and as the same remained undecided for more than a period of one year, he has now come to this Tribunal for the redress of his grievances.
4. The case of the appellant is that as a Senior Leprosy Technical he was senior to the respondent No. 3 and as such was entitled to promotion to the of post Leprosy Field Officer in preference to the said respondent under service rules but ignoring his seniority the said respondent was promoted to the said post in violation of the service rules. The appellant's claim to seniority over the respondent No. 3 in the cadre of Senior Leprosy Technician at the time of making the impugned order is based on the assertion that he joined the service in the Health Department much earlier than said reason--dent and that he was also promoted both as junior Dispenser as well as Senior Dispenser earlier than the said respondent. He has also claimed in the memorandum of appeal that he possessed better merits and ability as compared to the said respondent inasmuch as he had passed the course in the Leprosy Training at Karachi with distinction whereas the said reason-- dent had secured only second Division in the same.
5. On the basis of above contention the appellant prays that by setting aside the impugned order he be declared to have been appointed Leprosy Field officer in place of respondent No. 3 w. e. f. The date of the promotion of the said respondent and to be entitled to pay and other allowances of the post from the said date.
6. The respondents have put in separate written statements in which, besides contesting the appeal on merits have raised certain preliminary legal objections regarding the maintainability of appeal. The legal objections raised by them are to the effect that the appeal is not maintainable before the Service Tribunal on the grounds that the promotion of the respondent No. 3 being temporary in nature the impugned order is not final and that the appeal is also hit by proviso (b)
(i) to section 4 of the Act. On merits the claim of the appellant of his seniority over the respondent No. 3 in the cadre of Senior Leprosy Technician is controverted by alleging that both of them were appointed as Senior Leprosy Technician on one and the same date in 1972. The respondents have also in their written statements taken stand that the respondent No. 3 was promoted on the basis of merits and ability in preference to the appellant as he is a Graduate while the appellant is only a Matriculate and that the said respondent had passed the senior course in Leprosy with distinction.
7. We have heard the learned counsel for the parties and have also gone through the relevant record of the case. The learned counsel for the respondent first of all contended that the appeal is not maintainable before the Service Tribunal because the impugned order is not final inasmuch as under it the respondent No. 3 has been promoted temporarily to the post of Leprosy Field Officer. In support of his above contention he has referred to section 4 of the Act which confers a right of appeal on the aggrieved civil servant only against the final order of the competent authority made in respect of terms and conditions of his service. While quite agreeing with the general proposition of law regarding the non-maintainability of appeal against the order of the departmental authority which is not final, we find ourselves unable to agree with the contention of the learned counsel for the respondents that the impugned order is not final as we cannot subscribe to his view that the impugned promotion of respondent No. 3 is temporary. In the circumstances of the case the promotion of the respondent No. 3 under the impugned order is permanent which conclusion becomes inescapable to be arrived at when contents of the impugned order, are taken into consideration as a whole for the purpose of determining the nature of the same. In this connection the para 2 of the impugned order is of significance which reads as follow:- "He (respondent No. 3) will be on probation for 2 years and will be confirmed on this post if his work is found satisfactory."
8. In the presence of the aforesaid tiara of the impugned order there remains no doubt that the impugned promotion of respondent' No. 3 is not temporary but of permanent nature because he will stand confirmed on the satisfactory completion of the probationary period of 2 years. The mere mention of his promotion being temporary in para 1 of the impugned order becomes insignificant and is to be ignored while determining the character of the impugned promotion in view of the fact that a temporary appointment is never confirmed and only the permanent appointee is always kept on probation.
9. It is next contended by the learned counsel for the respondents that the appeal is not competent as the same is covered by proviso (b)(i) to section 4 of the Act. This objection is quite formidable and must prevail. The above-quoted proviso of section 4 reads as follows:- "4. (b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining-
(i) 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; "
10. From the bare reading of the proviso reproduced above it becomes quite clear that an order of the competent authority determining the fitness or otherwise of a person to be promoted to higher post or grade cannot be made subject of appeal before the Service Tribunal. The impugned order undoubtedly involves the question of determination of fitness of reason--dent No. 3 to be promoted to the higher post or grade in preference to the appellant arid thus is not. Challengeable before this Tribunal. In this view ,6 of the matter the appeal is incompetent. Even on merits we find no substance in this appeal. The appellant claims promotion to the post of Leprosy Field Officer on the basis of his seniority over the said respondent, at the time of making the impugned order. In view of the facts of the case the appellant cannot be held senior to the respondent No. 3 at the time of passing the impugned order. The appellant and respondent No. 3 both were appointed as Senior Leprosy Technician on the same date and thus none of them can claim seniority over the other in the cadre of Senior Leprosy Technician. The seniority at the relevant time was to be determined under Article 24 of Kashmir Service Regulations, Volume 11, the relevant portion of which reads as follows:-- "24. (6) where the date by which seniority is determined under sub --rule (a) is 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."
11. In view of the above-quoted service rules applicable at the relevant time the seniority among the appointees of the same date in a particular grade is to be determined by the appointing authority by laying down the order of preference and if it is not so determined at the time of their appointment then it is again the appointing authority with whom the power to determine inter se seniority vests. In the present case the seniority between the appellant and the respondent No. 3 as Senior Leprosy 'Technicians remained undecided by the appointing authority till the passing of the impugned order an therefore, the claim of seniority of the appellant over respondent No. 3 cannot be accepted or sustained. Prior to their appointment as Senior Leprosy Technician the appellant and the respondent No. 3 did not belong to same service and their seniority was not combined. The appellant originally joined service in the general Medical Department. Where he got promotion first as Junior Dispenser and then as Senior Dispenser whereas the respondent was an employee of the Leprosy Department right from his joining the Government service. 'The appellant has not been able to produce or refer to any document which may go to prove that he and the said respondent belonged to the same department or same service and their seniority was combined and not separate. Thus even if the seniority is considered to be the sole criteria for promotion to higher post the appellant had no preferential claim to promotion as compared to respondent No. 3 as he was not senior to him at the time of passing the impugned order.
In view of our above discussion the appeal fails both on legal grounds as well as on merits and the same is dismissed with no order as to costs.
The parties be informed of this order.
KHAWAJA GHULAM QADIR, MEMBER-------I agree.