1. BASHARAT AHMAD SHAIKH, J.---Appellant Abdul Ghani Farooqi is a Treasury Accountant in the Audit and Accounts Department under the Azad Jammu and. Kashmir Council. He and six other Treasury Accountants, who were previously placed in B-11, were promoted to B-16 against thirty three per cent selection grade posts, but the designation continued to be Treasury Accountants.
2. The aforesaid promotion was ordered by the Accountant-General Azad Jammu and Kashmir on 28th June, 1997 but effect was given from 1st May, 1997. For reasons to be discussed later, the appellant and others felt aggrieved on account of the hope which they had been entertaining for a long time that they would be granted B-11 with effect from 18th March, 1969 and B-16 with effect from 1st July, 1975. They challenged the above said order of the Accountant-General by filing departmental appeal before the Chairman of the Azad Jammu and Kashmir Council and, after waiting for the statutory period of ninety days, filed two appeals before the Federal Service Tribunal, which also functions as Service Tribunal for the civil servants belonging to the Azad Jammu and Kashmir Council. The appeals were dismissed by the Tribunal. Abdul Ghani FaroOqi alone challenged the order of the Service Tribunal in this Court and he was granted leave to appeal.
3. We have heard the learned counsel for the appellant, Syed Nazir Hussain Shah Kazmi and the learned counsel for the respondents, Mr. Farooq Hussain Kashmiri.
4. The learned counsel for the appellant has taken us through some lengthy details which need not be stated here. The Summary is that the appellant joined Audit and Accounts. Department of Azad Jammu and Kashmir in 1963 as Junior Auditor. He passed the required departmental examination and was promoted as Treasury Accountant in 1967 which post he continues to hold even though thirty two years have meanwhile elapsed. Government of Azad Jammu and Kashmir issued a notification on 22nd March, 1969 in which it was notified that the Government had sanctioned the same pay scales for non-gazetted employees of the Azad Government as were in force for the corresponding posts in West Pakistan. However, it was stipulated that the above said order would be applicable to only those non gazette posts in respect of which the qualifications, method of appointment and promotion are the same as in the corresponding posts in West Pakistan. It was clarified that the existing scales of the posts which did not fulfil the above said conditions would not be revised. Treasury Accountants in Azad Jammu and Kashmir were placed in a lower scale than their counterparts in West Pakistan, as it then was. The Treasury Accountants of Azad Jammu and Kashmir initiated a move with the Azad Government that the posts of Treasury Accountants may be given the same scale as in force in West Pakistan and subsequently in the Punjab. The request was not accepted by the Government. At one stage President of Azad Jammu and Kashmir, who was the Chief Executive of the Government under the Azad Jammu and Kashmir Government Act, 1970, did pass an order that Treasury Accountants in Azad Jammu and Kashmir be given the same scale in which Treasury Accountants of Punjab were placed with effect from 22nd March, 1969 but this order was not issued. Treasury Accountants continued their struggle and great deal of correspondence was exchanged between the Azad Government and the Auditor-General etc. but no favorable result was achieved. After coming into force of Azad Jammu and Kashmir Interim Constitution Act, 1974, the Department of Accountant-General of Azad Jammu and Kashmir was transferred to the Azad Jammu and Kashmir Council. In 1972, in the normal course, Treasury Accountants were granted BPS-9 in place of BPS-5. Meanwhile the Treasury Accountants in Punjab had been placed in BPS-13.
5. The struggle of the Treasury Accountants continued with the authorities of the Azad Jammu and Kashmir Council. Ultimately in May, 1997 Azad Jammu and Kashmir Council created a separate cadre of Treasury Accountants in BPS-16 with effect from 1st May, 1997. Thereafter, the appellant as well as six other Treasury Accountants were promoted to BPS-16 on the basis of seniority-cum- fitness on the recommendations of Departmental Promotion Committee, as already stated. The appellants, like other Treasury Accountants, had hoped that their promotion would be given effect from 18th March, 1969 because they were of the opinion that it was their right to be given the same pay scale as in force in West Pakistan/Punjab from the date in light of the notification enforcing the West Pakistan scales in Azad Jammu and Kashmir issued on 22nd March, 1969. Feeling aggrieved the appellant first represented to the Chairman of the Azad Jammu and Kashmir Council and then filed appeal before the Federal Service Tribunal which has dismissed the appeal by the order, which is challenged before us.
6. A law point which goes to the root of the case has been raised by the learned counsel for the respondents, Mr. Farooq Hussain Kashmiri, in his concise statement and was vehemently argued before us by him. This point does not find mention in the judgment under appeal and it appears to have been raised for the first time in this Court. It is a settled practice of this Court that a law point which goes to the root of the case is allowed to be raised even during arguments and can be raised as of right if it is duly incorporated in the memorandum of appeal or the concise statement.
7. The point raised by the learned counsel for the respondents is that version of pay/scales up- gradation of posts of Treasury Accountants was sanctioned by the Azad Jammu and Kashmir Council on 13th May, 1997 in which it was laid down that the revision of pay scales was to take effect from 1st May, 1997 but the appellant did not challenge this order and challenged his promotion order issued by the Accountant-General on 28th June, 1997. It was contended by the learned counsel that the order of the Accountant-General was passed in pursuance of the order of the Azad Jammu and Kashmir Council in which the date from which the up-gradation was to take place was fixed as 1st May and the Accountant-General had no option but to follow the order of the Council while giving effect to the promotion order of the appellant. He, therefore, submitted that the appeal before the Service Tribunal was not maintainable and that no relief can be granted to the appellant in view of the situation explained above.
8. We find from appeal filed by the appellant before the Service Tribunal that he challenged the order passed by the Accountant-General on 28th June, 1997. It may be useful to reproduce the order:-- "OFFICE ORDER Consequent upon the up-gradation of the posts of Treasury Accountants (B-9/11) in the set up of the Audit and Accounts Department Azad Jammu and Kashmir Council to BS-16 as a separate cadre with effect from 1-5-1997 and on the recommendations of Departmental Promotion Committee, the Accountant-General Azad Jammu and Kashmir has ordered the promotion of the following Treasury Accountants in BS-16 with effect from 1-5-1997 on the basis of seniority-cum- fitness against 33% of the posts of Treasury Accountants.
9. S.No, Name of Treasury Accountants M/S From the above, it is clear that:--
(i) Up-gradation of the posts of Treasury Accountants to BS-16 as a separate cadre had already been approved when the above quoted order was passed;
(ii) that up-gradation was to take effect from 1st May, 1997; and
(iii) that case had been examined by the Departmental Promotion Committee.
10. It follows that there was another order by which the up-gradation had been approved and that the Accountant-General only ordered the promotion of seven Treasury Accountants with effect from 1st May, 1997. It is clear, therefore, that the Accountant-General only promoted the appellant and six other Treasury Accountants making the promotion, effective from 1st May, 1997 which is the date from which the post under discussion were upgraded. Thus, Accountant-General was clearly not empowered to give effect to the promotions from a date earlier that 1st May, 1997.
11. Mr. Farooq Hussain Kashmiri stated that the order by which the up-gradation of the posts was approved was issued on. 13th May, 1997 and has been placed as Annexure 'DA'. It is a letter which conveys the approval of the Azad Jammu and Kashmir Council to the up-gradation of the posts of Treasury Accountants. The letter is in the following words:-- It In partial modification of the Council Seretariat's letter of even number, dated the 28th July, 1991, I am directed to convey the approval of the AJ&K Council to the revision of Pay Scales/Up-gradation of the posts of Treasury Accountants (BS-9/11) in the setup of the Audit & Accounts Department of AJ&K Council to BS-16 as a separate cadre subject to the observance of prescribed promotion procedure and passing of Departmental Examination as laid down with prescribed standard, w,e,f, 1st May, 1997 and until further orders."
12. This is the decision of the Azad Jammu and Kashmir Council by which the date on which the up- gradation was to take effect was fixed as 1st May, 1997. We find force in the contention of Mr. Farooq Hussain Kashmiri that the order of the Azad Jammu and Kashmir Council was the order which should have been challenged by the appellant if he thought that the posts should have been upgraded from 18th March, 1969 or any date earlier to 1st May, 1997. This order was not challenged by the appellant with the result that it has attained finality.
13. Since the Accountant-General could not give effect to his promotion on a date prior to 1st May, 1997, the appellant could not have any legal grievance against the Accountant-General's order. It may be added that the Accountant-General is not the competent Authority to issue up-gradation order of posts. This power is vested in the Azad Jammu and Kashmir Council. Thus, the Accountant-General's order suffers from no legal defect. The result is that the appeal filed by the appellant is a futile exercise.
14. The Service Tribunal has dismissed the appeal filed by the present appellant mainly on the ground that no violation of any specific statutory right was shown. The learned counsel for the appellant could not show that the view taken by the Service Tribunal is incorrect. In our opinion the notification of 22nd March, 1969 did not create a right to be enforced through Courts of law. The notification laid down the principle of parity with West Pakistan subject to certain conditions.
15. Whether in the given case those conditions had been fulfilled or not was to be seen by the Government which did not grant the corresponding scale, in West Pakistan, to the Treasury Accountants of Azad Jammu and Kashmir. The case of the appellant is that he should have been given promotion from 18th March, 1969 on the principle of parity. However, there is nothing on the record to show that the Azad Jammu and Kashmir Council has upgraded the posts of Treasury Accountants on the basis of notification of 22nd March, 1969. In fact the Azad Jammu and Kashmir Council has taken the stand trot it was not bound by the commitment or policy decision taken by the Azad Government of the State of Jammu and Kashmir in 1969.
16. In light of the foregoing discussion we hold that this appeal has no c merit and accordingly order its dismissal.