1. ' BASHARAT AHMAD SHAIKH, J.---This appeal arises out of an order of the Service Tribunal passed on 19-9-1989. The Tribunal dismissed in limine an appeal filed before it by the present appellant.
2. ' The dispute in the case relates to the service rights in respect of promotion between graduate engineers and engineers who hold diploma in engineering. The appellant falls in the first category while respondents Nos.2 to 3, Ali Muhammad and Riaz Ahmad, belong to the other category.
3. Respondents Ali Muhammad and Riaz Ahmad, so far as length of service is concerned, are far senior to appellant Mubasher-ul-Haq, who became a Sub-Divisional Officer in the Public Works Department in 1982 when the two respondents had already put in many years in that capacity.
4. ' On 25th of January, 1989, the Azad Government of the State of Jammu and Kashmir issued an order whereby it transferred respondents Ali Muhammad and Riaz Ahmad, S.D.Os. And appointed/posted {{URDU TEXT}}' them as Executive Engineers in their own pay and scale.
5. Mubusher-ul-Haq filed an appeal before the Service Tribunal on 5th of January, 1989, against the order mentioned above contending- that All Muhammad and Riaz Ahmad had been promoted as Executive Engineers which was illegal. He claimed that he was senior most S.D.O. From amongst the graduate engineers serving in the Public Works Department and if Ali Muhammad and Riaz Ahmad had not been illegally promoted by the Government he was entitled to be promoted against one of the two posts filled up by the impugned order. He urged the following points in support of his contention that the two respondents had been illegally promoted as Executive Engineers:-
(a) In light of the provisions of Pakistan Engineering Council Act, 1976, which had been adapted in Azad Jammu and Kashmir with effect from 29th of March, 1986, only a person who was a graduate engineer could be promoted as Executive Engineer and no diploma-holder could hold that post; and
(b) Alternatively, the posts of Executive Engineers reserved for promotion from amongst non- graduate engineers under the reserved quota had already been filled up.
6. ' The appeal was dismissed in limine by the Service Tribunal on the ground that the appeal was not competent in view of the fact that the order appealed from was in the opinion of the Tribunal not a final order within the meaning of Section 4 of the Azad Jammu and Kashmir Service Tribunals Act.
7. ' Sardar Rafique Mahmood Khan, the learned counsel for appellant Mubusher-ul-Haq; submitted that the status of the two respondents had been raised by the impugned order and the powers being now exercised by them also were higher than the powers which they exercised as Sub- Divisional Officers. It is only pay of the scale which has not been allowed to them and contended that it is only to deprive him that the order had been worded in that way. He pleaded that it was in fact a promotion order. He also vehemently argued that there was nothing in the order which could indicate that it was a tentative arrangement. The learned counsel referred to the Azad Jammu and Kashmir Civil Servants Appointment and Conditions of Service Rules, 1977, and submitted that rule 3 of the said Rules provides only three modes by which a person can be appointed to a post, namely:
(a) by promotion; (b) by transfer; or (c) by initial recruitment. He submitted that transfer is between two posts which are of equal status and grade, therefore, a Sub-Divisional Officer cannot be transferred as Executive Engineer. Since it was not a case of initial recruitment the only mode left was by promotion. On the merits of the case he submitted that under part II of the Rules an appointment could only be made on the recommendation of the appropriate Selection Committee or Board and only those persons who possessed necessary qualifications and fulfilled the conditions laid down for promotion could be considered by the Selection Authority, but in accordance with the Engineering Council Act the two respondents did not fulfil the qualifications for promotion as Executive Engineers.
8. ' M/s. Muhammad Hanif Khan, Abdul Rashid Abbasi and Kh. Shahad Ahmad, the learned counsel for All Muhammad and Riaz Ahmad, contended that their clients had not been promoted and the order was only of temporary nature and the Tribunal has rightly held that it was not appealable.
9. They also contested the submissions that any provision of the Engineering Council Act as adapted in Azad Jammu and Kashmir debarred a diploma engineer from holding the post of Executive Engineer. They equally repudiated the claim that the appointment of their clients was over and above the quota reserved for promotion from amongst the diploma engineers.
10. ' The Service Tribunal expressed the view that: "From the perusal of these orders it is evident that the appointments of respondents against higher posts are purely meant as stop-gap arrangement conferring no additional benefit to them. They have been kept in their own grade and pay scale and they might be reverted to the posts actually held by them at any time in future."
11. ' In reaching this conclusion the Tribunal drew support from a case reported as Safia Rashid Malik v.
12. Secretary to the Government of West Pakistan 1974 PLC (C.S.) 5.
13. ' A perusal of the order of the Service Tribunal shows that the Tribunal has based its conclusions on the following two grounds:-
(i) the appointments of the respondents were purely stop-gap arrangements; and
(ii) these appointments did not confer any additional benefit on them.
14. We do not find anything in the Government order which may show that it was a stop-gap arrangement. Since the appeal has been dismissed by the Tribunal at the primary stage there was no occasion for the Government to put its view-point before the Tribunal. The result is that it cannot even be said that the appointing authority pleaded or proved that it was a temporary arrangement.
15. ' The other ground on which the order of the Service Tribunal proceeds is that no additional benefit had been conferred on the two respondents. We find this ground equally untenable. The two respondents are functioning as Executive Engineers which posts carry higher responsibilities and, therefore, enhanced powers and status. Under an Executive Engineer many S.D.Os. Work as their subordinates and the possibility cannot be ruled out that even the appellant himself could have been posted under one of the respondents. Mere fact that they have not been allowed salary in the higher scale does not lead to the conclusion that there is no additional benefit to them.
16. ' In the Civil Servants Act 'promotion' is dealt with in Section 8 which runs as follows:- "8. Promotion.- A civil servant possessing such minimum qualification as may be prescribed shall be eligible for promotion to a post for the time being reserved under the rules for departmental promotion in any higher grade of the service or cadre to which he belongs.
(2) xxx xxx xxx xxx xxx"
17. Section 8 reproduced above clearly demonstrates that by 'promotion' a person is elevated to a post carrying a higher grade. 'Promotion' is basically not to a higher grade but to a higher post.
18. That is why there are many cadres in which civil servants keep on working against the same posts but are given higher grades by way of selection grade or by move-over. In such cases the concerned civil servants are not said to have been promoted although they move in the higher grade.
19. ' It may be observed that the question whether the order appealed from was a final order or not has to be resolved in light of the circumstances of each case. The contention of the present appellant is that the respondents were not legally qualified to 'hold the post of Executive Engineer in view of the provisions of the Engineering Council Act. The other contention is that the reserved quota had been already filled up and, therefore, the respondents could not be appointed as Executive Engineers. If any of these two contentions as well as the claim that he is the senior most graduate engineer can be proved by the present appellant, he would be Cleary found to have been adversely affected by the order. In that case it could be contended that the order by which the respondents were appointed as Executive Engineers finally decided the rights of the appellant qua the respondents.
20. ' From the foregoing, we conclude that the appeal filed by the present appellant in the Service Tribunal raised important points and should not have been dismissed in limine. We, therefore, set aside the order of the Service Tribunal and direct that the appeal may be admitted for regular hearing.
21. ' We may observe that we are remanding the case mainly because it is not possible for us to decide the case on merits ourselves for the reason the appeal has been dismissed by the Service Tribunal in limine and the record does not contain the objections of the respondents before the Service Tribunal.