' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave of the Court, has been directed against the judgment passed by the Service Tribunal on 29-2-2000, whereby the appeal filed by Malik Shahid Iqbal, respondent No,1 herein, was accepted.
2. The necessary facts, giving rise to the present appeal, the Service Tribunal has accepted the appeal filed by respondent Malik Shahid Iqbal, Sub-Inspector, Anti-Corruption Police, and has set aside the order passed by Secretary Home rescinding his predecessor's order for promotion of respondent No,1 as Sub-Inspector Police. Three Inspectors of Police and eleven Sub-Inspectors, appellants herein, have filed the appeal, with the leave of the Court, challenging the judgment of the Service Tribunal. They were not respondents before the Service Tribunal and seek permission to challenge the judgment of the Service Tribunal on the ground that if the same A is allowed to stand, it would adversely affect their service rights. It is stated by, the appellants that respondent Malik Shahid Iqbal is junior to all the appellants. The father of respondent moved an application before the Prime Minister for accelerated promotion of respondent on 14th October, 1990. The application was also recommended by two Ministers of the Government. The Prime Minister asked the Inspector-General of Police to give his comments. The Inspector-General of Police opposed the accelerated promotion of Malik Shahid Iqbal as Sub-Inspector inter alia on the ground that there were 49 Assistant Sub-Inspectors who were already on the "E" list and were waiting for promotion.
Despite these comments the Prime Minister passed an order on 11th of June, 1991, directing that respondent No,1 be promoted as Sub-Inspector as a mark of encouragement for meritorious B services rendered by him. The Inspector-General of Police did not accept the order and declined to promote him through the order passed on 30th March, 1995. Respondent Malik Shahid Iqbal filed appeal before the Home Secretary and after waiting for 90 days preferred an appeal before the Service Tribunal which was dismissed on 16th October, 1995. The Service Tribunal held that no post was available against which Malik Shahid Iqbal could be promoted. It was also held that promotion could not be claimed as of right.
3. No appeal was filed against the aforesaid judgment of the Service Tribunal but the matter did not end. It so happened that the departmental appeal filed by respondent Malik Shahid Iqbal against the order of Inspector-General of Police on 13th March, 1995, was accepted by the Home Secretary acting as appellate authority on 20th November, 1996 and he ordered the accelerated promotion of respondent. On coming to know of it, the Inspector-General of Police wrote a letter to the Home Secretary in which he pointed out that there was nothing in the official record to justify the out of turn promotion of respondent Malik Shahid Iqbal over the head of 49 senior A.S.Is. He wrote in the letter that the order of his promotion was passed by the Prime Minister on the basis of political pressure which was specifically prohibited in the Police Rules. He pointed out that employing such tactics seriously violated the discipline of Police Service Rules. In light of letter, mentioned above, the Home Secretary of the time withdrew the previous order of the Home Secretary on 9th January, 1999. It may be pointed out here that respondent Malik Shahid Iqbal, had in the meantime been promoted as ,Sub-Inspector on his turn. Malik Shahid Iqbal filed an appeal before the Service Tribunal 'which has been accepted and order passed by the Home Secretary on 9th January, 1999 has been set aside. In practical terms in means that Malik Shahid Iqbal shall stand promoted as Sub-Inspector w.e.f 1991. It is the aforesaid order of the Service Tribunal passed on 29-2-2000 which is the subject of present appeal.
4. The appellants have moved an application for condonation of delay for filing the appeal which is apparently barred by time. The application for condonation has been moved on the ground that appellants were not arrayed as respondents in the appeal and the appeal is within time from the date of knowledge. .5. It has vehemently been contended by Mr. Ashfaque Hussain Kiani, the learned counsel for the appellants, that at previous occasion the Service Tribunal had rejected the appeal filed by respondent and had thus, judicially determined the fact that he was not entitled to be given accelerated promotion. No appeal was filed against the aforesaid order with the result that it has attained finality. It is contended that in presence of the aforementioned judgment of the Service Tribunal the matter could not be reopened by the Secretary Home and even by the Service Tribunal. It is also submitted, that even on merits it was not lawful to promote the respondent as Sub-Insapector. In this connection reliance is placed on the stand taken by the Inspector-General of Police. It is vehemently contended that order of accelerated promotion passed by Prime Minister was an act of political interference and was not based on official record.
6. Controverting the arguments raised by the learned counsel for the appellants, Mr. M. Tabassum Aftab Alvi, the learned counsel for respondent No,1, contended that in the first instance the appeal filed by the appellants was barred by limitation, as such the same was liable to be dismissed on this sole ground. It was next contended by the learned counsel for respondent that with the passage of time the appellants have been promoted, as such they have no locus standi to challenge the accelerated promotion of the respondent. The learned counsel in support of his contentions relied upon reported cases titled Azad Jammu and Kashmir Government v. Habibullah.
Lone (PLD 1984 SC (AJ&K) 13) and Government of Pakistan v. Gul Zaman (PLD 1993 SC (AJ&K) 8) by contending that the appellants being not aggrieved were not competent to lodge the present appeal. The learned counsel submitted with vehemence that on account of rendering meritorious services in the Police Department, the respondent was given accelerated promotion and the allegations of exerting any political interference on the Prime Minister did not arise in the circumstances of the case.
7. Raja Shiraz Kayani, the learned Advocate-General appearing on behalf of respondents Nos.2 and 3, also supported the contentions raised by Mr. Ashfaque Hussain Kiani, the learned counsel for the appellants, and maintained that the order of promotion of respondent No,1 was violative of law and the same was not passed in a lawful manner.
8. After hearing the respective contentions of the learned counsel for the parties, we may in the first instance deal with the objection raised by the learned counsel for respondent No,1 that the appeal filed by appellant was barred by limitation. Suffice it to say that appellants were not arrayed as party before the Service Tribunal, therefore, the present appeal was filed, as alleged by the appellants, on obtaining the knowledge of the impugned order passed by the Service Tribunal.
Thus, we have no hesitation in holding that the appeal filed by appellants was well within time from the date of knowledge of the appellants. The objection, therefore, raised by the learned counsel for the respondent No,1 stand repelled.
9. As regards the next contention of the learned counsel for the appellants, it may he stated that the order of Prime Minister, dated 11th June, 1991 was not accepted by the Inspector-General of Police and he declined to promote him vide his order dated 30-3-1995. Feeling aggrieved by the aforesaid order respondent filed appeal before the Home Secretary and after waiting for statutory period preferred an appeal before the Service Tribunal which was dismissed on 16th of October, 1995. In the aforesaid judgment the Service Tribunal held that no post was available against which Malik Shahid Iqbla could be promoted. It was further held that promotion could not be claimed as of right. This order attained finality as no appeal against it was filed by the respondent, but in the meantime the departmental appeal filed by respondent against the order of Inspector-General of Police, dated 30-3-1995 was accepted by the Home Secretary acting as Appellete Authority on 20th November, 1996 and he ordered the accelerated promotion of respondent. Inspector-General of Police again wrote a letter to the Home Secretary that there was nothing in the official record to justify out of turn promotion of respondent, but the Service Tribunal without any justifiable reason accepted the appeal filed by respondent and set aside the order of the Home Secretary, dated 9th January, 1999. In our view the Service Tribunal committed an error in accepting the appeal filed by respondent and the authority cited by the learned counsel for appellant's is squarely applicable to the facts of the present case. The extract from the case law cited by the learned counsel for appellants reported as Nisar Ahmed Kiani, ExSuperintendeing Engineer Electricity Department v.
Azad Jammu and Kashmir Government (1999 PLC (C.S.) 1002) may usefully be reproduced below Wherein it was observed as under:-- "It is appellant's own case that as his review petition was not decided within the statutory period Of -90 days as envisaged under section 4 of the Service Tribunals Act he went up in appeal before the Service Tribunal and to this Court but he was unsuccessful. Thereafter, according to him his review petition was decided in his favour but the order passed in his favour was not implemented by the respondents. Assuming for the sake of arguments that under section 4 of the Service Tribunals Act, the appellant had two choices either to wait till the decision of review petition and then to challenge any adverse order before the Service Tribunal or to seek the redressal of his grievance when his review petition was not decided by concerned authority within 90 days, even then he could not start the second round of litigation because he chose to avail the first option and he went up in appeal before the Service Tribunal without waiting for decision of his review petition. As stated earlier, his appeals were dismissed by the Service Tribunal and this Court. Therefore, he cannot be permitted to turn round and say that he was still at liberty to re-agitate the matter because his review petition was decided after he had already exhausted the remedy by filing appeals. If for instance his review petition would have been dismissed instead of having been accepted, he could not re-agitate the matter by filing appeal to the Service Tribunal second time due to mischief of res judicata. On the same analogy when his review petition could not be accepted consequently he could not seek the implementation of an order which could not be passed due to the bar of res judicata."
' Thus, following the dictum laid down in the aforesaid authority the contention raised by the learned counsel for the appellants has a substance and the same must prevail as the respondent was not competent to avail the remedy for the second time when the previous judgment passed by the Service Tribunal against him attained finality.
10. So far as the authorities cited by Mr. M. Tabassum Aftab Alvi, the learned counsel for respondent No,1, in cases Azad Jammu and Kashmir Government v. Habibullah Lone (PLD 1984 SC (AJ&K) 13) and Government of Pakistan v. Gul Zaman (PLD 1993 SC. (AJ&K) 8) are concerned, the same have no application to the case in hand. In the aforesaid authorities it has been observed that only an aggrieved person is competent to file an appeal before the Supreme Court who is aggrieved by the order or decree passed against him. We have no doubt in our mind that vide the impugned order of Service Tribunal virtually the respondent has stood promoted as Sub-Inspector w,e,f, 1991, when the appellants were admittedly senior to him. In this view of the matter it cannot be said that the appellants I were not aggrieved by the impugned order of the Service Tribunal and the same did not adversely affect their service rights.
11. In the light of what has been stated above, by accepting the appeal, we set aside the impugned order passed by the Service Tribunal with costs.