Kh. Muhammad Nasim, ACJ. The above titled appeal by leave of the Court has been directed against the consolidated judgment of the Service Tribunal dated 24.11.2018, whereby the separate appeals filed by the appellants and proforma-respondents, herein, have been disposed of.
2. The facts of the case briefly stated are that the appellants and proforma-respondents, herein, filed separate appeals before the Azad Jammu and Kashmir Service Tribunal, through which they challenged the order dated 30.08.2013. It was alleged in the appeal filed by the appellants, herein, that the appellants and the respondents are the permanent employees of the Police Department, who have qualified the exams of List "A" and "B" on different dates, required for Lower Class Course under Chapter 13(6)(7) of the Police Rules, 1934. Subsequently, they were nominated for Lower Class Courses in different Schools/Colleges on different dates and after successful completion of the courses, seniority list was prepared under Chapter 13-8(1) of the Policy Rules, 1934, in the light of the Order of merit issued by the concerned Schools/Colleges. The appellants, herein, were placed at Serial Nos. 11 and 23, whereas, Respondents No. 7 to 15, herein were placed at Serial No. 79, 80, 96, 97, 122, 123, 140, 189 and 190, respectively. As per seniority positions, the appellants and proforma- respondents, herein, were senior to Respondents No. 7 to 15 and by all means eligible to be promoted as Head Constables prior to Respondents No. 7 to 15, but Respondent No 1, herein, illegally promoted Respondents No. 7 to 15, herein, on the basis of Chapter 13-5(a) under the recommendations of Respondent No. 2, vide Order Book No. 850, dated 30.08.2013. The same relief was claimed in the connected appeal filed by the proforma-respondents, herein. On filing of the appeals, the respondents herein, were summoned, who contested the appeals by filing written statements, wherein the claim of the appellants and proforma-respondents, herein were refuted in toto. The learned Service Tribunal consolidated both the appeals and after necessary proceedings, disposed the same, vide impugned judgment dated 24.11.2018, in the terms that the department (competent authority) is at liberty to promote the appellants, therein, as Head Constables being senior, in the light of the seniority list as well as the relevant rules, in accordance with law. Feeling dissatisfied from the impugned judgment, the appellants, herein, have filed the present appeal by leave of the Court.
3. At the very outset, Mr. Tahir Aziz Khan, the learned Advocate, representing the respondents, pointed out that during pendency of the appeal before the Service Tribunal the appellants, herein, have already been promoted as Head Constables, vide order Book No. 82, dated 02.02.2015 and order Book No. 566, dated 14.09.2015, respectively. The appellants, herein, have not challenged the aforesaid orders before the proper forum, rather while accepting the aforesaid orders, have joined the posts of Head Constables. In this state of affairs, by. their conduct the appellants, are estopped and acquiesced to file the instant appeal, which even otherwise, has practically become infructuous. In support of his version the learned Advocate, referred to and relied upon the cases reported as [1995 SCR 355], [1996 SCR 171], [2001 SCR 179] and [2010 SCR 208].
4. Mr. Anees-ul-Arfeen Abbasi, the learned Advocate, representing the appellants, admitted the said fact that during the pendency of appeal before the Service Tribunal the appellants, herein, have been promoted, however, he stressed on the point that admittedly the appellants, are senior to the respondents and should have been promoted prior to them. He forcefully argued that the learned Service Tribunal failed to resolve the real controversy involved in the matter and decided the appeal in a slipshod manner. He submitted that Chapter 13-5(a) nowhere exists in the Police Rules or any other book; the same are suspicious and has not been adopted in the Azad Kashmir, hence on the strength of aforesaid provision, the promotion of the respondents could not be made.
He further argued that the respondents were not eligible to be promoted but the learned Service Tribunal failed to consider these important aspect of the matter and disposed of the appeals in an arbitrary manner and prayed for acceptance of appeal.
5. Raja Mazhar Waheed Khan, the learned Additional Advocate-General, appeared on behalf of the official respondents and adopted the arguments advanced on behalf of the respondents and prayed for dismissal of appeal.
6. We have considered the arguments advanced at bar by the learned Advocates, representing the, parties and gone through the available record along with the impugned judgment. It is revealed from the record that the appellants, herein, through an appeal filed before the Service Tribunal challenged the order dated 30.08.2013, whereby Respondents No. 7 to 15, herein, were promoted as Head Constables, on the ground that the appellants are senior to the said respondents, hence before promoting the respondents, they were entitled for promotion. It is an admitted fact, that during pendency of the said appeal, the appellants, herein, were also promoted as Head Constables, vide orders dated 02.02.2015 and 14.09.2015, respectively, under the recommendations of the Departmental Selection Committee. The appellants, herein, have accepted the said promotion orders and have not challenged the same before the departmental authority or by amending the appeal before the Service Tribunal, hence their promotion orders dated 02.02.2015 and 14.09.2015 have attained finality. In this state of affairs, the appellants had acquiesced their right, if any and practically the appeal filed by the appellants had become infructuous. The same proposition, came under consideration before this Court in a case titled Syed Iftikhar Hussain Shah vs. Azad Govt. & others (Civil PLA-No. 285 of 2018, decided on 06.09.2018), wherein it was observed as under:- "4. ... Admittedly, the petitioner, herein, has been promoted during the pendency of the appeal before the Service Tribunal vide notification dated 16.05.2014. Previously, he was appointed on 22.05.2013, on current charge basis. Both the notifications have been accepted by the petitioner, herein, without any protest and have not been challenged by him before the next higher authority, or by amending the appeal before the learned Service Tribunal, therefore, the observation of the learned Service Tribunal is correct that without amending the appeal and challenging 'the legality and correctness of the said notifications, the appellant/petitioner, herein, is not entitled to any relief. The other contention of the learned counsel for the petitioner that he has already sought the relief is also devoid of any force because relief cannot be claimed in vacuum. The notification dated 16.05.2014, has been issued after institution of the appeal before the Service Tribunal and it was enjoined upon the petitioner, herein, to challenge the same by amending the appeal and placing the copy of the same before the learned Service Tribunal. The grievance raised in this PLA does not involve any question of legal importance rather the same is individual nature, therefore, leave cannot be granted in routine."
Similarly, in another unreported judgment titled Syed Mushtaq Hussain Shah vs. Azad Govt. & others (Civil PLA No. 627 of 2019, decided on 09.10.2019), it was observed by this Court in Para 6 as under: "6. I have considered the arguments of the learned counsel for the parties and examined the record made available. Leaving aside all other aspects, as admittedly, the petitioners have been regularly promoted to the posts of Section Officer vide notification dated 22.02.2018 and they have accepted the said notification and are performing their functions. They have not challenged the said notification through any departmental remedy or appeal before the Service Tribunal. This aspect has also been considered by the learned Service Tribunal in Para 10 of its judgment, thus, in view of the promotion notification dated 22.02.2018 and accepting the same by the petitioners, the previous appeal of the petitioners becomes infructuous. The impugned judgment of the learned Service Tribunal is quite in accordance with law calling for no interference."
In view of the above, this appeal merits no consideration, hence, stands dismissed with no order as to costs.