' RAJA BASHIR AHMAD KHAN (CHAIRMAN).---By way of this appeal the appellant Dr. Nazir Ahmed Khan has assailed Notification No,Admin/H-1-(66)/Section 11/94, dated 22-8-1994 whereby respondent No, 2 Syed Ibrar Ali Shah, Medical Specialist B-18 was appointed in his own pay and scale on purely temporary basis against the upgraded post of Medical Specialist in B-19.
2. Brief facts leading to this appeal are that the appellant joined service as Medical Officer B-17 on 7-2-1980 and was approved by the Public Service Commission on 18-4-1981. He was appointed/promoted in Grade B-18 vide Notification dated 14-3-1985 in view of his Specialisation as DCH. The respondent No, 2 was appointed as Medical Officer in Grade B-17 on 7-1-1986. He was promoted in Grade B-18 On 19-10-1991. The respondent-Government upgraded the post of Medical Specialist to Grade B-19 and the respondent No:2 was appointed against the upgraded post through the impugned Notification. The appellant was senior to respondent No, 2 as Medical Officer and as a promotee in Grade B-18. The appellant filed a review petition before the Government.. The review application remained undecided and after waiting for statutory period of ninety days the appellant has preferred the appeal before this Tribunal. The appellant has challenged the said Notification as being void ab initio consisting of malice and having been passed against the universally accepted principle of "audi alteram partem" and also discriminatory in nature.
3. The respondents have filed written objections. They have denied the entitlement of appellant to .Seek any redress from this Tribunal since the said Notification did not affect the terms and conditions of the service of the appellant and he is, therefore, not an aggrieved person. The respondents have also controverted the contents of appeal. The appellant has reiterated his original claim in his replication.
4. We have. Heard the counsel for the parties and have carefully gone through the record.
5. The contention of the counsel for the appellant is that the appellant is admittedly senior to respondent No,2 and had his preferential right to be considered for promotion against the upgraded post of B-19. In paragraphs 1 to 3 of the Memorandum of Appeal the appellant has stated that he was appointed as Medical Officer on 7-2-1980 and was promoted in Grade. B-18 on 14-3-1985 and whereas the respondent No,2 was appointed as Medical Officer on 7-1-1986 and was promoted in Grade B-18 on 19-10-1991. In written statement the respondents have not specifically denied the facts stated in the appeal. The respondents have only stated that the paragraphs 1 to 3 need no reply. In para. 2 of the written statement it has, nevertheless been stated that the appellant does not possess the recognized qualification and experience under rules. Since the respondents have failed to specifically deny the relevant contents of appeal in relation to seniority it will be deemed that the respondents accept the claim of the appellant. Even otherwise the seniority list although interim in nature, shows that the name of appellant appears at Serial No,14 and the name of respondent No,2 at Serial No,56. On the basis of this seniority the counsel for appellant has argued that being senior to respondent No,2 appellant has vested right to be promoted to the higher post in preference to respondent No,2 in view of section 8 of the Azad Jammu and Kashmir Civil Servants Act, 1976 which provides that a civil servant possessing minimum qualification as prescribed. Is eligible for promotion to a post, for the time being, reserved under the rules for departmental promotion. The relevant rules relied on behalf of the appellant are Rules 8 and 10 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. Rule 8 provides the criteria for the determination of the seniority inter se of the persons appointed to post in the same grade in a function unit and Rule 10 says that the person having required qualification and meeting the conditions laid down for the purpose of promotion shall be considered by the Selection Authority. The counsel for appellant on the basis of aforementioned provisions of Civil Servants Act and the Rules has supported the case of appellant by placing his reliance On 1991 PLC (C.S.) 128 and PLD 1991 SC 1118. In 1991 PLC (C.S.) 128 the appellant Muhammad Aslam Khilji was not considered for promotion on account of his failure to qualify Departmental Examination. Mr. Muhammad Aslam Khilji was not found fit or qualified to hold a post in B-18 and he was declared ineligible to. Hold a post in B-18 by the Service Tribunal.
Setting aside the view of the Service Tribunal the Supreme Court was pleased to hold as follows:-- "No doubt 'eligibility' and merit and fitness 'are entirely different matters. The fact that the appellant was eligible to become Assistant Commissioner did not necessarily mean that the must have been promoted as such. But the fact that he was eligible did create a right in him to be considered by the Selection Board. By denying this right a wrong was done to him and it should have been undone by the Service Tribunal which it has failed to do on the assumption that he was not eligible for promotion because he had not passed the examination under reference,"
' In PLD 1991 SC 1118 it was held:-- ' In the Punjab, seniority continued to be a vested right of the civil servants. On the view of the matter, there was to be a clear law justifying an order which interferes with the seniority settled according to law."
' In the matter of service we in Azad Jammu and Kashmir follow the principle of parity with,the Punjab and similar provisions in Civil Servants Act of 1976 have been incorporated as are found in Punjab Civil Servants Act, 1974. There is no quarred with the law laid down by the Hon'ble Supreme Courts of Azad Kashmir and Pakistan and the contention of the appellant that he is senior to respondent No,2 has to be accepted but in order to succeed in his contention the appellant has to establish that the impugned Notification tends to affect his terms and conditions of service. It has been rightly argued by the counsel for the respondents that the post has been upgraded by the Government which has all powers to upgrade the post. The very language of, the impugned Notification, according to counsel for respondents knocks out the appellant from the contest and the whole foundation built by the appellant falls to the ground.
6. We have carefully gone through the Notification and we find that the appointment of respondent No,2 against the post of Medical Specialist B-19 is purely temporary and subject to the conditions which are stated in the Notification as follows: {{URDU TEXT}} ' The law laid down by our Supreme Court in case of Mubasharul Haq V. Azad Government repotted in 1991 PLC (C.S.) 426 is also of no avail to the appellant. The Government has full authority to upgrade any post which it deems proper in given set of circumstances. The Service Tribunal cannot sit as a supervisory body to interfere with the authority of the Government. The post of Medical Specialist has been upgraded from Grade B-18 to B-19 and respondent No,2 has been appointed against this post in his own pay and scale. The law laid down in Mubasharul Haque case does not apply in this case because there is no similarity of facts.In instant case and the case of Mubasharul Haq. In that case the incumbent was made Executive Engineer with higher responsibilities and additional benefits attached to the post whereas in this case the respondent No,2 remains a Medical Specialist without there being any higher responsibilities and additional benefits attached to the post. The appointment of the respondent No,2 is purely temporary and was made to carry on the routine activities of the post. The regular promotion/appointment of the respondent No,2 was ordered to be made in accordance with the recommendations of the Selection Board. The case of the respondent No,2 has yet to be referred to the Selection Board and in that process the cases of all eligible Doctors are to be submitted for consideration. The order under appeal, in our view is not operative against the terms and conditions of the appellant. He may seek his remedy wherever respondent No:2 is promoted without taking care of the provisions of relevant law on the subject.
7.. The rest of the contentions raised by the counsel for appellant lose any relevance in view of the facts that the impugned Notification does not in any way affect the terms and conditions of the service of the appellant and he cannot be held as a person aggrieved by the impugned Notification.
8. In the light of the. Above-stated facts we find no force in this appeal which is hereby dismissed, leaving parties to bear their respective costs.