Ghulam Mustafa Mughal, J.--This appeal with our leave is directed against the judgment passed by the Service Tribunal on 30.06.2015 in Service Appeal No.349/2010.
2. The brief facts forming the background of the captioned appeal are that Tanveer-ul-Haq, appellant herein, challenged the legality and correctness of notification No.Admin/A-1(65)/2010 dated 28.04.2010 and Works/9141- 51/2010 dated 18.06.2010 by way of an appeal before the Azad Jammu and Kashmir Service Tribunal on 30.06.2010. It was claimed by him that he was a permanent employee of Public Works Department and stood appointed as sub-Engineer on 15.02.1989. Thereafter , he improved his qualification by obtaining the degree of B.Tech (Hons). Respondent No.7 was inducted as sub-Engineer on 28.02.2004, whereas, respondent No.8 was appointed as such on 07.07.1992. It was further claimed that the appellant is senior to respondents No.7 and 8. It was claimed that against the posts of Assistant Engineer , respondents No.7 and 8 have illegally been promoted in violation of the seniority because the appellant, herein, was at serial No.5, whereas, respondents No.7 and 8 were listed at serial Nos.9 and 10, respectively . The appellant, herein, was senior most and had right to be considered for further promotion. It was stated that respondent No.7 was sent on deputation vide notification dated 19.10.2006 against the post of Mechanical Engineer . The order was subject to the condition that his posting does not cloth him with any right of promotion within the department. It was further stated that the notifications dated 28.04.2010 and 18.06.2010 have been issued in violation of the rules. The substance of the appeal was that as the appellant, herein, was senior and respondents No.7 and 8 were junior to him, hence, they cannot be promoted by violating the seniority position. The appeal was contested by respondents by filing separate written statements. In the written statement filed on behalf of respondent No.7 it was pleaded that the appellant has no locus standi to file the appeal against the respondent. It was further claimed by him that in the year 2006 he was sent on deputation to Mangla Dam Raising Project as Mechanical Engineer (B-17), vide notification dated 19.10.2006. He served there for a period of three years but his transfer order has not been challenged by any other officer. The appellant filed the time barred appeal after a period of four years. It was further claimed that subsequently vide notification dated 28.04.2010 respondent No.7 stood transferred on the recommendation of respec tive Selection Board in Central Transport Pool as Assistant Engineer . As this posting is against ex-cadre post, hence, the appellant is not an aggrieved person. The appellant can claim the seniority in the parent department and not against the ex-cadre post of a different functional unit. In the written statement filed on behalf of responde nt No.8 it was claimed that the appeal of the appellant is time barred. It was further submitted that the appellant was not in possession of B.Tech
(Hons) degree at the time of promotion of respondent, hence, he cannot claim promotion/seniority against the reserved quota. It was also stated that the department of Physical Planning and Housing issued seniority list of B.Tech (Hons) Mechanical Engineers on 24.08.2009, whereby respondent No.8 is at serial No.2. The appellant has not been included in this seniority list due to lack of required qualification. This seniority list has attained finality for having not been challenged. It was also claimed that thereafter one Abdul Latif, sub-Engineer , has also been promoted on 11.02.2009, hence, the appellant has no case against the respondent. The written statement filed on behalf of respondents No.1, 3, 5 and 6 is to the same effect, hence, need not to be reiterated. After hearing the parties, the learned Service Tribunal has dismissed the appeal through the impugned judgment.
3. Raja Khalid Mehmood Khan, Advocate , the learned counsel appearing for the appellant vehemently argued that the learned Service Tribunal has passed the order without due application of judicial mind as the judgment is silent about the status of respondent No.7. He submitted that the appellant is senior from him but not a single sentence has been written about respondent No.7, hence, the judgment is nullity in the eye of law for lacking the necessary ingredients. The learned Advocate further argued that as the appellant was listed ahead to the respondent in the seniority list, hence, had right to be considered for the promotion prior to respondents No.7 and 8 because the appellant herein was at serial No.5 vis--vis to respondents No.7 and 8 who are listed at serial Nos.9 and 10, respectively . The learned Advocate further argued that respondent No.7 was illega lly sent on deputation to Mangla Dam Raising Project and subsequently he was promoted against the respective quota. The learned Advocate also contended that the seniority of the respondents was earlier challenged but the authority withdrawn the order , hence, it is not correct that the appellant has not challenged the seniority of the respondents.
4. Sheikh Masood Iqbal, Advocate, the learned counsel appearing for respondents No.7 and 8 vehemently argued that it is incorrect to say that the Service Tribunal has decided the appeal without due application of mind. The learned Advocate argued that the Service Tribunal has attended all the points involved in the appeal and categorically came to the conclusion that the order of promotion dated 19.10.2006 of respondent No.7, has not been challenged by anybody . The application for challenging the order in the instant appeal was xxx rejected by the Service Tribunal vide order dated 10.02.2 014, hence, the same has attained finality . As the order of promotion has not been challenged, therefore, the appeal has become infructous which has rightly been observed by the Service Tribunal. The learned Advocate further argued that at the relevant time the appellant was not fulfilling the required qualification hence he cannot be considered for further promotion. The learned Advocate argued that neither the Selection Board has been impleaded in the line of respondents nor the promotion orders have been challenged, therefore, the appeal was not maintaina ble. The learned Service Tribunal has rightly dismissed the same. In support of his submissions he placed reliance on the cases reported as Sardar Muhammad Naseem Khan vs. Brig.
(R) Muhammad Akbar Khan and others [2003 SCR 142], Syeda Shaista Mumtaz vs. Secretary Education and others [2003 SCR 446] and Raja Muhammad Hayat Khan vs. Board of Revenue and others [1999 SCR 158]. The learned Advocate also submitted that all the documents appended with the appeal were unattested copies, hence, the appeal was liable to be dismissed in view of the law laid down in the cases reported as Ansar Sajjad and others vs. IGP & others [2016 SCR 45], Iffat Bibi vs. Azad Government & others [2015 SCR 83] and 2016 SCR 1343 [no judgment found on referred page ]. He also referred unreported case titled Azad Govt. & others vs. Dr. Kh. Rafique Ahmed & others [Civil Appeal No.266/2014 decided on 08.12.2015].
5. Mr. Mehmood Hussain Chaudhary , Additional Advocate-General, submitted that the Service Tribunal has covered all the points and there is no legal defect or dent in the impugned judgment, thus, this appeal has no merit.
6. We have heard the learned Advocates for the parties and gone through the record of the case. The perusal of the record appended with the memo of appeal before the Service Tribunal reveals that vide notification dated 28.04.2010, Mr. Iftikhar Ahmed Mir (respondent No.7 herein) Assistant Engineer Mechanical Mangla Dam Raising Project, was transferred to Central Transport Pool as Assistant Engineer Mechanical. The appellant cannot consider himself aggrieved from this order because the appointment of respondent No.7 has been made in different functional unit as well as cadre. Moreover , the order dated 28.04.2010 was regularized on the recommendations of respective Selectio n Board No.3 vide notification dated 27.07.2010. It has been rightly observed by the Service Tribunal that the said notification has not been challenged by the appellant. Though the appellant tried to challenge the said notification through an application for amendm ent before the Service Tribunal.
The application was contested by the other side and the record reveals that on 10.02.2014 the application was rejected. The order dated 10.02.2014 has not been further challenged by the appellant and has attained finality . As the final order of promotion of the appellant has not been challenged in the appeal, therefore, the appeal before the Service Tribunal against the notification dated 28.04.2010 was not competent.
7. The other notification which was subject matter of the appeal before the Service Tribunal was of 18.06.2010.
Through this order Muhammad Naseer Awan, respondent No.8 herein, was promo ted on officiating basis as SDO.
The perusal of the seniority list of sub-Engineers B.Tech (Hons) Mechanical, appended with the file of the Service Tribunal as Annexure "RA", reveals that respondent No.8 has been placed at serial No.2 and the name of the appellant does not figure in this seniority list. Though this seniority list was subsequently cancelled but the order itself is not final. The appellant who admittedly was not in possession of degree of B.Tech (Hons) at the relevant time could not have been considered for promotion against the reserved quota reserved for B.Tech (Hons) degree holders. Though the Service Tribunal has not dealt with the issue raised in appeal in comprehensive manner but consideration of the entire record by us leads to the conclusion that substantially the compliance has been made and without challenging the order of promotion of respondent No. 7, the appeal was not competent.
8. So far as the case of respondent No.8, is concerned, it has been categorically stated by him before the Service Tribunal that the appellant was not qualified at the relevant time because he was not in possession of B.Tech
(Hons) degree, hence, the question of his consideration at the time of promotion of respondent No. 8 does not arise.
9. One of the condition for filing the appeal before the Service Tribunal is that the civil servant should be an aggrieved person. A person who is not clothed with any right for consideration for promotion, cannot be termed as an aggrieved person for the purpose of filing appeal before the Service Tribunal as has been opined in the case reported as Syed Shoukat Hussain Gillani vs. Abdul Rehman Abbasi & others [PLJ 1992 SC(AJK) 1]. The relevant part of the referred judgment reads as under:- "Under Section 4 of the Service Tribunal Act 1975 a civil servant is competent to prefer an appeal only if he is found to be an aggrieved person. At least a civil servant challenging the appointment of another civil servant should, prima facie, show that he had a chance to be considered to appointment against the civil post at the relevant time.
If he is not found to be qualified for appointment either by initial recruitment or otherwise, he cannot be permitted to challenge the appointment of another civil servant on the ground that although he was not qualified to be considered for the appointment yet his rival was also suffering from the same, disqualification. The civil servant who invokes the jurisdiction for redressing his grievance must show that he was an aggrieved person as envisaged under the relevant law ."
10. The contention of the learned Advocate for the respondents that the appeal before the Service Tribunal was not maintainable on the ground that the attested copies of the impugned notifications have not been filed with, is devoid of any force. The argument has been raised on the strength of the case law referred to and relied upon by the learned Advocate for the respondents but subsequently this Court changed the view and it has been concluded that if the notifications or orders under challenge are admitted between the parties then the appeal cannot be dismissed on that ground.
The upshot of the above discussion is that finding no force this appeal stands dismissed.