1. BASHARAT AHMAD SHAIKH, J.--- Arising out of a judgment of the Service Tribunal this appeal relates to a dispute about seniority of three Assistant Engineers in the Local Government Department. The Service Tribunal has, by accepting a joint appeal filed by Muhammad Muskeen and Sarfraz Ali, respondents before us, set aside a Government Notification issued on 28th of November, 1992. By that Notification a review petition filed by appellant Muhammad Fazal was accepted by the Government.
2. A seniority list of the officers of the Local Government and Rural Development Department was finalised on 2nd of. November, 1991 in which respondents Muhammad Muskeen and Sarfraz Ali were placed senior to appellant Muhammad Fazal, who filed a review petition on 20th of November, 1991.
3. The review petition was accepted and to give effect to it the impugned Notification was issued on 28th of November, 1992. The decision of the Government, as incorporated in that Notification, was that all the three civil servants had been temporarily promoted as Assistant Engineers against different development schemes and their promotion bad not been approved by the Selection Board and, therefore, the seniority list of Overseers prepared by the Department shall be treated final between the three contesting civil servants mentioned above.
4. The Service Tribunal took note of the fact that Muhammad Muskeen and Sarfraz Ali were promoted as Assistant Engineers on 24th of November, 1975 and they have all along been performing duties as Assistant Engineers, while appellant Muhammad Fazal did not possess a Diploma in Engineering and requirement of the prescribed qualification was relaxed by the Government for appointing him as Assistant Engineer. It was held by the tribunal that respondents Muhammad Muskeen and Sarfaraz Ali were promoted against permanent posts of Assistant Engineers while Muhammad Fazal could only claim seniority from the date on which the order of relaxation was passed on 6th of May, 1981. The Service Tribunal also expressed the view that rights, which accrue to a civil servant and are operative for a number of years cannot be taken back from him.
5. The pivotal point in the case is whether respondent Muhammad Muskeen and Sarfraz Ali are holding the posts of Assistant Engineer on permanent basis. It was claimed by them in the appeal filed before the Service Tribunal that they had been promoted as Assistant Engineers on 20th of November, 1975. This claim was repudiated in the written statement and it was averred that both of them were promoted temporarily and their promotions had not been regularized. In face of these pleadings it was necessary for respondents Muhammad Muskeen and Sarfraz Ali to prove that they had been promoted on regular basis. They did not lead any evidence to substantiate their abovementioned claim. A perusal of the record of the Service Tribunal shows that there is no material on the file to show that the appellants were ever promoted on regular basis. On the other hand the Notification of 28th of November, 1992, however, clearly states that all the three contesting civil servants are holding the posts of Assistant Engineer on temporary basis and their cases have not been sent to the Selection Board. It is thus clear that the finding of the Service Tribunal that respondents Muhammad Muskeen and Sarfraz Ali are permanent Assistant Engineers is factually incorrect and is vacated. So far as appellant Muhammad Fazal is concerned he does not claim that he is holding the post of Assistant Engineer on regular basis. Thus, all the three of them are held to be permanent Overseers who have not been promoted as Assistant Engineers on regular basis. It may be observed that they have been working as such for a number of years but that does not change the nature of their incumbency.
6. The principles determining seniority are clear. Seniority is dealt with in section 7 of the Azad Jammu and Kashmir Civil Servants Act. Subsection (2) of that section lays down that seniority has to be counted from the date of promotion on regular basis. It reads: -- Seniority---(1) xxx xxx xxx (2)Seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to a post in that grade: xxxxxxxxx xxx--- The provision in Kashmir Civil Service Rules (K.S.R., Vol. II) was also the same. According to rule 24 seniority has to be determined from the date of first appointment to a service, class, category or grade, as the case may be. The connotation of the term "first appointment" mentioned in rule 24 was examined by this Court in Ghulam Mustafa Qureshi v. Azad Government and others (unreported case of this Court -- Civil Appeal No. 35 of 1993, decided on 5-12-1993) (1994 PLC (C.S.)
7. 1078) and it was held that this term applies to regular promotion in accordance with relevant rules and not to temporary promotion.
8. According to the scheme of all civil service laws seniority, particularly in non-selection posts, is a major factor for promotion to the next higher post. According to section 8 of the Civil Servants Act promotions in cases of non---selection posts are based on seniority-cum-fitness. In the Kashmir Civil Service Rules it was laid in rule 25 that promotion to a selection post shall be made on the ground of merit and ability while seniority was to lie considered where the merit and ability were approximately equal. It was also provided in that rule that all other promotions were to be made on the basis of seniority. The question as to which seniority has to be considered in such matters poses no problem. It is obviously the seniority in the post substantively held by a person, which has to be considered while promotion to the next higher post is being considered.
9. In this view of the matter the Government Notification which was challenged before the Service Tribunal, issued on 28th of November, 1992, reflected the correct legal position by laying down that the matter of promotion of the contesting civil servants shall be referred to the Selection Board and the seniority list of Overseers will be brought under consideration by the Board.
10. The Service Tribunal has relied on some judgments of the Supreme Court of Pakistan and has taken the view that when an order is passed and implemented it cannot be recalled by the authority making it. This principle has no application to temporary promotions because such promotions are ordered without regard to merit and suitability, without approval of the Selection Board and do not create any right. It cannot, therefore, be said that if a person who had been temporarily promoted is ordered to go back to his original position a right is being taken away from him. Law is clear that no right comes to vest in consequence of a temporary promotion.
11. Sardar Rafique Mahmood Khan, the learned counsel for Muhammad Muskeen, contended that appellant Muhammad Fazal had filed an appeal before the Service Tribunal in the year 1980 in which he challenged the promotion of Muhammad Muskeen as Assistant Engineer but this appeal was dismissed. An uncertified copy of a judgment of the Service Tribunal was placed on the file of the Service Tribunal but it does not find any mention in the judgment of the Service Tribunal, which leads to the conclusion that this point was not pressed before the Tribunal. This point has not been taken in the concise statement filed in this Court by respondent Muhammad Muskeen. It, therefore, cannot be allowed to be raised for the first time during arguments.
12. We consequently accept the appeal and vacate the order passed by the Service Tribunal. This would have the effect of reviving Government Notification No.6163-80/SLG/92, dated 28th of November, 1992.