' CH. MUHAMMAD IBRAHIM ZIA, J.---This appeal against the judgment of the Service Tribunal dated 26-10-2004 is filed with the leave of the court.
2. The brief facts of the case are that the appellant and respondent No,1 both were appointed against the of Assistant Lineman B-3 in the Electricity Department vide order dated 31-3-1987.
According to the appellant he held 10th position in the order of merit as is incorporated in the appointment order, whereas respondent No,1 was at serial No,47. According to the appellant, the basic appointment of respondent was invalid because according to rules 100% vacancies of Assistant Lineman are to be filled by direct recruitment, whereas respondent was promoted from the rank of Coolie. Later on both were promoted as Lineman B-4 vide order dated 5-4-1990, wherein the seniority position of contesting parties was disturbed, thus the appellant preferred an appeal which was accepted by the departmental authority vide order dated 15-1-2000. In furtherance of afore-said order, an administrative order was issued on 14-3-2002 by respondent No,3. Ultimately inter se seniority position of contesting parties was substituted with each other.
3. Respondent No,1 was promoted in selection grade B-7 vide order dated 7-3-1998, but when the seniority position was substituted vide order dated 14-3-2002, respondent No,3 vide order dated 17- 4-2003 recalled the promotion order of respondent No,1 and the appellant was retrospectively promoted in his place with effect from 7-3-1998. It was further ordered to recover monetary benefits gained by the respondent on the basis of recalled promotion order. Notice for recovery was served upon the respondent on 18-9-2003, which forced him to file appeal before the Service Tribunal. In para 9 of memo. Of appeal the respondent specifically stated that the whole story is brought to his knowledge on 18-9-2003. All the orders were secretly passed and never communicated to him, therefore, the appeal is within time from the date of knowledge and alternatively prayed for condonation of delay. He also submitted his affidavit in support of this specific assertion. The appellant submitted his objections before the Service Tribunal and his reply to para 9 of the appeal is as follows:-- {{URDU TEXT}} The learned Service Tribunal through impugned order accepted the appeal and restored respondent to his position by setting aside the order of his revision and recovery of amount.
4. The judgment of the Service Tribunal dated 26-10-2004 is assailed by the appellant through this appeal on the ground that respondent's basic appointment as Assistant Lineman is illegal because he did not fulfil required qualification and also for the reason that the post of Assistant Lineman was not a promotion post. The order passed on his appeal in relation to seniority has become final, which has not been challenged by the respondent. The appeal before the Service Tribunal was hopelessly time-barred and lastly the Service Tribunal has misinterpreted the law on the subject.
5. Mr. Asghar Ali Malik, the learned counsel for the appellant, made detailed arguments by reiterating the grounds incorporated in the memo. Of appeal and also narrated whole service history of parties. According to him the respondent's basic appointment order was violative of rules. He cannot claim seniority. He has failed to challenge the order determining the inter se seniority and his appeal was also hopelessly time barred, therefore, the judgment of the Service Tribunal is not sustainable.
6. The learned counsel for respondent No,1, while defending the impugned order, argued that at this stage the stand of the appellant that the basic appointment of respondent No,1 was invalid is of no use because it has attained finality. Both the appellant and respondent No,1 were appointed through single order and the same was in the knowledge of appellant. The appellant has not challenged aforesaid order for a long period of sixteen years. It is further argued by the learned counsel that the respondent being senior was promoted in selection grade B-7 on 7-3-1998. The appellant has failed to challenge this promotion order within limitation. It was also contended that the whole fictitious story of acceptance of departmental appeals filed by the appellant is invalid because the respondent was neither made party nor provided an opportunity of hearing. For the first time the order dated 18-9-2003, for recovery of amount, was served upon the respondent. No other order has been communicated to the respondent. The respondent has taken a specific stand in this regard in para 9 of his memo. Of appeal before the Service Tribunal, but the appellant (respondent therein) and pro forma respondents have failed to deny this question of fact in their objections, therefore, it stands admitted and admitted facts need not be proved.
7. We have heard the learned counsel for the parties and minutely perused the record.
8. The first point which requires resolution is that whether the validity of appointment order of respondent as Assistant Lineman dated 31-3-1987 can be looked into at this stage. The appellant and respondent No,1 were appointed as Assistant Lineman on 31-3-1987 through single order which abundantly proves that this order was from the day first in the knowledge of appellant, but he has not challenged this order at any stage, which has attained finality and the same cannot be disputed at this stage. In this regard we find support from a case reported as Ch. Muhammad Zaman v. Azad Government and others 1996 PLC (C.S.) 901 in which this court observed as under:-- "The appellant was given the benefit of his service rendered in the Department of Peoples Works Programme vide order of the Government dated May 25, 1976, forming Annexure "P-7" in the paper book but this order was not challenged by respondents Nos.3 and 4 before any competent forum and as such it remained intact throughout. However this order was challenged by respondent No,5 in appeal before the Service Tribunal and thereafter in the Supreme Court but he failed before both the forums. Again there is another order dated April 15, 1980, forming annexure P-8 in the paper book whereby the Government accorded the sanction of the seniority of the appellant from the date of his initial appointment as Assistant Engineer in the Department of Peoples Works Programme towards Public Works Department. This order was also not challenged by respondents Nos.3 and 4 as such the respondents were illegally declared senior to the appellant."
9. The next point is inter se seniority. Both the appellant and respondent No,1 were appointed Assistant Lineman on one and the same date. It is an admitted fact that the respondent is older in age and also appointed as Assistant Lineman by promotion. Rule 8 of the AJ&K Civil Servants (Appointment and Conditions of Service) Rules, 1977, clearly lays down that in case of inter se, seniority of direct appointees and promotes, the promote shall rank senior. Even otherwise if the respondent is not treated as promote, he ranks senior because of older in age.
10. It is a celebrated principle of law that no party can travel beyond its pleadings. Respondent No,1 has categorically taken a stand in para 9 of memo. Of appeal before the Service Tribunal that no adverse order was communicated to him and he got knowledge of all the orders passed by the departmental authorities on service of order dated 18-9-2003. This factual assertion of the respondent has not been denied by the present appellant and pro forma-respondents. Para 9 of memo. Of appeal before the Service Tribunal is as follows:- {{URDU TEXT}} ' The reply of present appellant to aforesaid para is as under:- {{URDU TEXT}} ' The reply of pro forma-respondents is as under:- {{URDU TEXT}} ' The above quoted reference of pleadings of parties clearly proves that this factual aspect of the case has been legally admitted by the appellant and pro forma-respondents and under law admitted facts need not be proved. The impugned judgment of the Service Tribunal has been carefully perused. We find no infirmity in the impugned judgment, which is well-reasoned and in accordance with the principles of statutory law as well as the law enunciated by this court.
Therefore we do not find any fault with the impugned judgment which is upheld. The appeal stands dismissed.