1. KH. GHULAM QADIR (MEMBER).-By this appeal the appellant Aziz--ur-Rehman's has challenged the impugned order dated 27th September, 1975, whereby the respondent No. 2 Muhammad Hanif (now deceased) was transferred from Rural Development Programme Department to Agricultural Department and appointed as Agriculture Assistant. Respondent No. 2 died during the pendency of appeal. We heard the learned counsel for the parties. The Counsel for respondent No. 1 has raised three preliminary objections to the maintainability of appeal on the grounds that:---
(1) The appeal is time-barred ;
(2) The departmental appeal was also filed after lapse of prescribed period of limitation ;
(3) The order under appeal is not appealable under law.
2. We have given our serious thought to these contentions of the learn--ed counsel for respondent No. 1 which go to the root of the case if held in affirmative. As regards the first contention that the appeal before Service Tribunal is time-barred, we have seen from the record that the appellant filed a departmental appeal before the President Azad Govern--ment on 1st December, 1977, which .Was rejected on 18th April, 1979. The appellant filed this Service appeal on 12th June, 1979. The appellant had the right of filing appeal within thirty days from the date of com--munication of the impugned order under law. The appellant has alleged in paragraph 8 of his appeal that the order of rejection of appeal was communicated to him on 24th May, 1979. The appellant has filed an affidavit in support of the averments made in the memorandum of appeal wherein the fact of communication of the order of rejection of his departmental appeal by the President Azad Kashmir Government is also affirmed on solemn affirmation. As such the appeal filed on 12th June, 1979, before the Service Tribunal falls within 30 days from the date of communication of the order of rejection, that is 24th May, 1979, with the result that the appeal was filed within the prescribed period of limitation. No counter-affidavit was filed by the respondents to falsify the stand taken by the appellant in filing appeal within 30 days from the date of communication. Thus, the contention of the Counsel for the respondent No. 1 that appeal was filed beyond time falls to the ground as untrue and without any force.
3. The second contention is that the departmental remedy by way of an appeal availed by the appellant was also time-barred and as such the present appeal is liable to dismissal on this ground as well.
4. This contention is also weighty and needs serious determination. Firstly, the impugned order dated 27th September. 1975, was passed by the President of the Azad Jammu and Kashmir Government.
5. Legally a Review Petition only could lie against the impugned order and no appeal was legally competent as it was the Government itself which had passed the impugned order. The record does nowhere disclose that the com--petent authority treated the appeal as a review petition and disposed of as such. Secondly, if for argument sake it be assumed that an appeal could legally lie in the present case then the same should have been filed within 60 days of the impugned order as provided under rules but accord--ing to the appellant an appeal was filed somewhere in 1976 (the order of rejection of departmental appeal dated 18th April, .1979 speaks that departmental appeal was filed on 14th August, 1977) and that too against an order of the then Minister as is clear from annexure "A-8" filed by the appellant in support of his contention. This stand of appellant is belied by the fact that the impugned order was passed by the President and not by any Minister.
6. Moreover, if the assertion of the appellant be presumed to be correct that the appeal was filed beyond the prescribed limitation of sixty days for filing departmental appeals, the record does not indicate that the competent authority ever condoned the delay in filing the departmental appeal.
7. As such unless the delay was condoned for sufficient reasons, a belated appeal could not be entertained legally by they, departmental appellate authority with the consequence that present appeal before the Service Tribunal is incompetent as in the circumstances of this case it shall be deemed that no departmental remedy was availed of before filing the present appeal.
8. The third contention of the respondent is that the impugned order dated 27th September, 19.75, is not appealable under law because under this order only transfer of the respondent from one department to another de--partment took place and no promotion was made under this order.
9. The appellant is mistaken to deem the impugned order as a promotion order because the respondent was infect promoted from grade 5 to grade 16 on 13th August, 1975, as Agriculture Assistant as put by the appellant himself under para. 5 of his 'appeal The appellant, if at all, could chal--lenge this order of promotion dated 13th August, 1975, but it seems that he did not exercise his right of appeal against this order before the Service Tribunal but subsequently when the respondent was transferred in his capacity as Agriculture Assistant from one department to another department, the appellant were up and felt aggrieved at a much late stage and challenged before the Service Tribunal an order which infect did not affect the terms and conditions of service of the appellant by itself. The impugned order dated 27th September, 1975, simply speaks of a transfer only and as such is not appealable at all under the law. If by any stretch of argument it be said that the impugned order amounted to a promo--tion order even then the impugned order is unappealable under proviso (b) (i) to section 4 of the Service Tribunal Act, 1975.
10. In this view of the matter the appeal of the appellant is incompetent and untenable on this ground as well.
11. SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).-I agree.