RAJA BASHIR AHMAD KHAN (CHAIRMAN,).---Appellant Zaheer Ahmad Khan has preferred this appeal against the order NoV-::e0 ---39/2864-77/92, dated 31-8-1992 whereby the respondent No. 2 has been appointed as Senior Trade Instructor in B-16 against a vacant post in Automobile Vocational Institute, Kotli.
2. The case set up by the appellant in his appeal is that he was appointed as Trade Instructor Automobile on 22-8-1985 in Vocational Institute, Rawalakot. Vocational Training Institute being run under the control of the Department of Commerce and Industry. The post of Senior Trade Instructor in various departments became vacant and the impugned order was issued by the department with previous approval of the Minister of Industry and Commerce.
3. The appellant has challenged the said order on the grounds that while making the impugned order the departmental rules for promotion have been ignored and respondent who is not a fit person to be promoted as Senior Trade Instructor has been given undue advantage by giving promotion as Senior Trade Instructor by violating the terms and conditions of service of the appellant.
4. The respondents have denied the contents of memorandum of appeal and have also raised the preliminary objection about the maintainability of the appeal.
5. We have heard the learned counsel for the parties. We have also gone through the record.
6. The respondents have questioned the maintainability of the appeal on the ground of limitation.
This is an admitted fad that appellant filed the review application before the Government on 28-9- 1992 and preferred the present appeal on 27-1-1993 in this Tribunal. The contention of the learned counsel for the respondents is that the present appeal could be filed before this Tribunal within a period of 120 days from the date on which the review petition was filed before the Government. The period of 120 days if calculated from 28-9-1992 expires on 25-1-1993. The present appeal appears to be time-barred by two days. The learned counsel for the appellant tried to meet this objection by arguing that the period spent for obtaining the copy of the impugned orders is to be excluded from the period of limitation. It is evident from the impugned order placed on the file that appellant gave the application for obtaining the order on 26-1-1993. The period for obtaining copy could be excluded if the application for obtaining the copy was presented on or before 25-1-1993. Since the application for obtaining the copy was given after the expiry of the period of limitation the days spent for obtaining the copy of the impugned order cannot be excluded for the purpose of calculating the period of limitation. The appellant has not submitted any application for condonation of delay. The appeal is clearly time-barred and liable to be dismissed on this ground.
7 On merits it has been submitted by the learned counsel for the appellant that every eligible civil servant- has a right of being considered for promotion to a post the time being reserved under the rules for departmental promotion under section 8 of Civil Servants Act, 1976. Respondent No. 2 has been appointed against a higher post of B-16 and this order, in fact is an order of promotion. This argument of the learned counsel for the appellant has been based on the decision of Supreme Court Azad Jammu and Kashmir in Civil Appeal No. 3 of 1992, decided on 15-8-1990 in case of Mubashar-ul-Haq v. Azad Government and others. The Hon'ble Supreme Court was pleased to observe: "That the question whether the order appealed from was a final order or not has to be resolved in the light of 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 contentions that the reserved quota had been already filled up and, therefore, the respondent 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 clearly found to have been adversely affected by the order. In that case it could be contended that the Executive Engineer finally decided the rights of the appellant qua the respondents:
8. The Supreme Court decision shows that the matter was remanded to the Service Tribunal for consideration whether the impugned order in said appeal is final or not. The appellant in that appeal based his case on the ground that being a graduate engineer he was senior to the respondents. In the present case the record shows that the percentage of marks obtained by the respondent at the time of his initial appointment was 64.26 as against the appellant who got 56% marks. The promotion under the departmental rules can be made on the basis of seniority-cum- fitness. The higher percentage obtained by respondent might have prevailed with the authority for appointment of respondent in his own pay and scale against a post of B-16. The argument of the learned counsel for appellant is not without force. Under the above-referred section of Civil Servants Act all eligible persons should be considered for the promotion to the next higher grade.
The impugned order is, no doubt, a stopgap arrangement and order of this kind is not a promotion in the strict sense of the word but unfortunately this practice is resorted to avoid the rules so as to favour a particular person and thus the provisions of the rules are deliberately violated. We would like to advise the competent authority to send the cases of all eligible civil servants for promotion against the post of Senior Trade Instructor Automobile.
9. Under the circumstances we are of the opinion that the impugned order is stopgap arrangement and does not call for any interference by this Tribunal. We, shall, however, like to record that appellant has a right of being considered for the promotion against the said post alongwith other eligible civil servants.