' CH. MUHAMMAD IBRAHIM ZIA , J.--- The captioned appeal with the. Leave of the Court is addressed against the judgment of the Service Tribunal dated 9-8-2010, whereby while accepting the appeal filed by respondent No,1, he has been declared entitled to promotion in grades B-17, 18 and 19 under the Up-gradation of Posts Rules, 1984, w,e,f, 15-9-1991, 15-9-1999 and 15-9-2007, respectively and the official respondents have been directed to promote respondent No,1 w,e,f, above mentioned dates on the basis of merit-cum-fitness and in accordance with civil service laws.
2. Necessary facts forming' the background of the appeal as alleged by respondent No,1 are that he was initially recruited in the Police Department. Subsequently, on the move of Presidential Secretariat, he was transferred as Security Officer, B-11 in the Presidential Secretariat on 15-9-1991.
He was permanently appointed as Security Officer vide order dated 14-3-1993 and it was also ordered that the previous service be counted for pensionary benefits. Respondent No,1, moved an application for up-gradation of his post in grade, B-17, on the parity of the post of Security Officer, AKLASC Department. In the meantime, the post of Security Officer was shifted with budget from Presidential Secretariat to Services and General Administration Department where he was appointed as Protocol Officer; vide order dated 16-11-1994. Another application for up-gradation of the post in grade, B-17 w,e,f, 15-9-1999 on the principle of parity and grant of grade, B-18 under the up-gradation of single post in light of notification of Finance Department w,e,f, 15-9-1999, was submitted by him before the Secretary, Services and General Administration Department. The official respondents promoted respondent No,1 vide notification dated 28-9-2006 as Assistant Protocol Officer, w.e.f 1-10-2006. Respondent No,1 was regularly promoted as Assistant Protocol Officer on 8-11-2006. Thereafter, he submitted a representation before the competent authority for grant of grade, B-17 w,e,f, 15-9-1991 instead of 8-11-2006, B-18 w,e,f, 15-9-1999 and B-19 w,e,f, 15-9- 2007, under the principle of parity and in the light of Finance Department's notification. The appellants rejected' the representation filed by respondent No,1 vide notification dated 25-5-2009, as being time barred. Feeling aggrieved from the notification dated 25-5-2009, respondent No,1 filed an appeal in the Service Tribunal. The official respondents contested the appeal by filing objections/comments. It is averred in the comments, that there is no justification of claiming parity with the AKLASC department and the representation filed by respondent No,1 is time-barred. The learned Service Tribunal, after hearing the parties, accepted the appeal filed by respondent No,1 vide judgment dated 9-8-2010 declaring him entitled for promotion in the manner indicated in para.
1. The appellants have assailed the judgment of the Service Tribunal before this Court, through the instant appeal.
3. Ch. Shoukat Aziz, the learned Additional Advocate-General, representing the appellants, argued the case at some length and seriously objected to the impugned judgment of Service Tribunal on the ground that the same is patently illegal. He submitted that it appears that the learned Service Tribunal has not applied its judicial mind and just reproduced the prayer clause of the respondent No,1, in the impugned judgment. In the Azad Jammu and Kashmir, the civil services are regulated by law made under the constitutional provisions. For each and every post, specific Rules have been framed prescribing the mode of appointment, required qualification and other conditions. Same like, for up-gradation of the posts, there are settled laid down criterias. Neither one can claim for up-gradation of any post as of right nor it can be granted as such. The Service Tribunal has fallen in serious error of law and facts while passing the impugned judgment. He further submitted that through the impugned judgment, a very anomalous situation has arisen. Respondent No,1 has been granted up- gradation, in a random manner; hence, the judgment is not sustainable.
4. We have dispassionately considered the arguments of the learned Additional Advocate-General and also minutely perused the record. According to record, respondent No,1 was posted by transfer as Security Officer in the Presidential Secretariat, subject to the pleasure of the Hon'ble President in grade, .B-11, vide order dated 15-9-1991.. Subsequently, vide order dated 16-11-1994, he was appointed against the post of Assistant Protocol Officer, B-11 and posted in the office of Chief Secretary. The post of Assistant Protocol Officer held by him was upgraded from grade, B-11 to grade, B-17 w.e.f 1-10-2006 vide notification dated 28th September, 2006, with the condition that it is his personal scale and after his retirement same will be deemed downgraded automatically.
Whether such up- gradation of post and appointment order is valid or not, requires serious thought but as this order has not been impugned by anybody, therefore, we don't like to record any findings in this regard which are left open to be recorded in any other case when such question is brought before this Court for determination. In furtherance of this notification, another notification for appointment of respondent No,1 by promotion against this up-graded post was issued on 18-11- 2006. On 17-2-2009, he submitted a review against this notification wherein he claimed that in the AKLASC, the post of Security Officer B-17 has been upgraded in grade, B-18 in the year 1999 w,e,f, 15- 9-1991. He remained posted as Security Officer in the Presidential Secretariat; therefore, the post of Security Officer held by him is upgraded. In the light of Finance Department's notification dated 15th December, 1993, he also claimed that a single post, after a period of eight years has to be upgraded automatically. Thus, he is entitled under the principle of parity to be awarded grade, B-18 w,e,f, 15-9-1999 and B-19 w,e,f, 15-9-2007. The representation/review filed by respondent No,1 was dismissed by the competent authority vides notification dated 25th May, 2009, being hopelessly time-barred. The respondent's grievance has arisen from the notification dated 25th May, 2009.
While taking into consideration, the peculiar facts of this case, it was enjoined upon the Service Tribunal to first of all determine the question as to whether through the impugned notification, the representation/review has been rightly dismissed being time barred or not. It is very interesting that the learned Service Tribunal has not even bothered to ponder on this important basic vital legal proposition raised before it according to the laid down principle of law. Copy of the representation/review filed by the appellant is available, on record according to which, he has filed the same on 17-2-2009, after passage of near about three year's period. In the memorandum of representation/review, he has not mentioned any reason or justification for condonation of such long delay. According to law dealing with the subject, especially the Azad Jammu and Kashmir, Civil Servants Act, and the Civil Servants, Appeal Rules, the limitation for filing the departmental appeal/review or representation has been expressly provided. Thus, in the light of statutory provisions, respondent No,1 has not approached the proper forum within the prescribed period. As the representation/review on the face of it was time barred thus, while rejecting the same, the competent authority has not acted in violation of law.
5. Even otherwise, under the principle of law enunciated by full Bench of this Court in the case titled Shabir Ahmed v. AJK Government and another, reported as 1997 PLC (C.S.) 478 it has been observed that:--- "14. It has already been stated that in the instant case, the time from 28-3-1991 to 2443-1994, a period of almost three years, was consumed in pursuing the departmental remedy and thereafter, the appellant preferred appeal to the Service Tribunal, whereas he should have appealed within 120 days after filing of his review petition to the authority concerned. Thus, the appeal filed by the appellant was hopelessly time barred."
Thus, according to the principle of law enunciated by full Bench of this Court, the appeal filed by respondent No,1 before the Service Tribunal was also hopelessly time barred. The findings of the Service Tribunal on the question of limitation are totally against the settled principle of law, hence, not sustainable.
6. We have also considered the merits of the case in the light of statutory provisions dealing with the subject matter. The learned Additional Advocate- General has rightly argued that the services of a civil servant are regulated by law. For each and every post, Rules are enforced which clearly mention the grade of post, channel of promotion, criteria of up-gradation of the post, promotion of incumbent and without any statutory provision, neither any civil servant can be granted higher grade in random manner nor can be any post upgraded.
7. It is also very interesting to mention here that respondent No,1 claims parity with the post of Security Officer, in the AKLASC. It may be stated here that mere nomenclature of any post does not entitle the incumbent for the grade and privileges of the same nomenclature of the post in any other department or organization. In such situation, neither a principle of parity is attracted nor, it is recognized by any principle of law enunciated by the superior Courts.
8. It is also very amazing that respondent No,1 who has been appointed and holding the post of Assistant Protocol Officer, has claimed the up-gradation of the post as Security Officer on the principle of parity with the AKLASC whereas he, at the relevant time was neither holding the said post nor such a claim is acceptable.
' In the light of these peculiar facts, respondent No,1 has got no locus stand or cause of action. The grant of grades and up-gradation of post blindly, without taking into consideration the facts and background of the matter, is not an exercise of jurisdiction in a judicious manner. Therefore, in our considered view, the learned Service Tribunal has fell in grave error of law and facts while passing the impugned judgment which is totally against law, hence, is not sustainable. Therefore, we are constrained to accept this appeal and set aside the impugned judgment of the Service Tribunal with no order as to costs.