The appellant has preferred the present appeal on the grievance that in spite of his length of service in the department he was not considered for promotion and appointment on a newly-created post of Budget Officer B- 16, whereas the respondent No,5 (Qazi Aziz-ul-Rehman, Administrative Officer B-16) was appointed as such, vide impugned order. The impugned order being passed against departmental rules and natural justice be set aside and the appellant be promoted as Budget Officer B-16.
2. I have heard the learned counsel for the appellant and perused the record. Before invoking the jurisdiction of this Tribunal under Section 4 o Service Tribunal Act, 1975 (hereinafter referred to as the Act) the appellant submitted his appeal through proper channel to avail of the departmental remedy but the same was not forwarded by C.P.C vide No, 5719/First. 20-/Admin/8 dated 22-4-1989 as there was no bar for a person to be appointed as Budge Officer from out side the department and secondly the appellant was under consideration to be appointed as Superintendent B-16.
3. Under rule 5(3) of the Azad Jammu and Kashmir Civil Servant (Appeal Rules 1982 (hereinafter referred to as the Rules) every person preferring a appeal is required to submit his appeal directly to the appointing authority.
Rule 5 of the Rules reads as under:- "5.--(1) Every person preferring an appeal shall do so separately and in his own name.
(2) Every appeal preferred under these rules shall contain all material statements and concise arguments relied upon by the appellant. It shall contain no disrespectful or improper language, and shall be complete in itself.
(3) Every appeal shall be submitted direct to the appellate Authority.
(4) Every appeal shall be submitted within a period of sixty days of the communication of the order appealed against."
' It is also laid down in rule 7(1)(b) of the Rules that an appeal may be rejected by the appellate authority without hearing the appellant if it does not comply with the provisions of sub-rule (1), (2) or (3) of the Rules. Sub-rule (1) of Rule 7 of the Rules is also reproduced as under:- "7.--(1) An appeal may be rejected by the appellate authority without hearing the appellant if -
(a) it is an appeal in a case in which no appeal lies under these rules; or
(b) it does not comply with the provisions of sub-rule (1), (2) or (3) of rule 5; or
(c) it is not preferred within the time specified in sub-rule (4) of rule 5 and no reasonable cause is specifically shown for the delay; or
(d) it is addressed to authority to which no appeal lies under these rules:"
A plain reading of these rules would show that an appeal preferred through proper channel to the departmental authority is a clear negation of the Rules, therefore, the departmental remedy is essentially to be availed of before invoking the jurisdiction of this Tribunal and hence this appeal is not competent before this Tribunal under Section 4(1)(a) of the Act.
4. The present appeal is not even maintainable on the second score that the appellant he promoted and appointed as Budget Officer instead of respondent No,5. It is the discretion of the competent authority to appoint a person on a particular post or to promote anybody to a higher grade. Under Section 4(1)(b) of the Act, no appeal can lie to the Tribunal against such order by which any person is appointed by the competent authority in accordance with rules. At the same time the matter of promotion also does not fall within the jurisdiction of this Tribunal under the same provision.
5. Since the departmental remedy has not been exhausted in accordance with the relevant rules; and the matter is excluded from the purview of this Tribunal under Section 4 of Azad Jammu and Kashmir Service Tribunal Act, 1975. The appeal, therefore, is held to be dismissed in limine.