' MUHAMMAD YUNUS SURAKHVI, J.---The above titled both the Civil Appeals Nos.20 and 25 of 2000 have been filed, by way of leave of the Court, by Nazar Ahmed Khan and Syed Sabir Hussain Naqvi respectively against the consolidated judgment passed by the Service Tribunal of Azad Jammu and Kashmir on 15-12-1999, whereby ante-dated promotion of appellant Nazar Ahmed Khan was kept intact, whereas Syed Sabir Hussain Naqvi, the appellant in Civil Appeal No,25 of 2000, was declared senior to Nazar Ahmed Khan as Circle Registrar, for setting aside the same.
2. Since both the appeals arise out of the single judgment of the Service Tribunal and the facts and law are common in both of them and have been disposed of by the Service Tribunal through a consolidated judgment, therefore, we propose to dispose them of through this single judgment.
3. The necessary facts, giving rise to the appeal filed by Nazar Ahmed Khan, are that he was promoted as Assistant Registrar in the Cooperative Department (BPS-16) on 8-1-1976. However, this order of promotion was subsequently cancelled on 15-4-1976. The appellant after exhausting the departmental remedy filed an appeal before the Service Tribunal of Azad Jammu and Kashmir, which was accepted by the Tribunal vide its judgment dated 24-2-1988 and consequently the order dated 15-4-1976 was set aside. The Government was directed to pass fresh orders after hearing the appellant in accordance with law. The appellant was appointed as Assistant Registrar (BPS-16) w,e,f, 15-4-1976 vide notification dated 28-9-1991. He was further promoted as Circle Registrar (BPS-17) w,e,f, 16-7-1992 vide notification dated 19-9-1994. The appellant filed a review petition against the said order of his promotion as Circle Registrar (BPS-17) claiming ante-dated promotion w,e,f, 25-4-1985, when the post of Assistant Registrar (BPS-16) was upgraded and redesignated as Circle Registrar (BPS-17). The review petition of the appellant was accepted and the appellant was awarded retrospective promotion as Circle Registrar (BPS-17) w,e,f, 25-4-1985 vide notification dated 17-7-1998. Respondent No,1, Syed Sabir Hussain Naqvi, challenged the order dated 17-7-1998 regarding award of ante-dated promotion to =the appellant as Circle Registrar w,e,f, 25-4-1985, through an appeal before the Service Tribunal. The Service Tribunal accepted the appeal of the respondent vide *he impugned judgment dated 15-12-1999, to the extent that the respondent is declared senior to the appellant in his capacity as Circle Registrar, however, his ante-dated promotion was kept intact. It is the aforesaid order of the Service Tribunal which is the subject of present appeal filed by Nazar Ahmed Khan.
4. Syed Sabir Hussain Naqvi has lodged an appeal against the order of Service Tribunal, dated 15- 12-1999, whereby though he was declared senior to respondent No,1 as Circle Registrar but the ante-dated promotion of Nazar Ahmed Khan, respondent No,1, has not been set aside.
5. The necessary facts, giving rise to the appeal filed by Syed Sabir Hussain Naqvi, are that he was appointed as Junior Clerk in the Cooperative Department of Azad Jammu and Kashmir and after serving for a pretty long time was promoted as Superintendent BPS-15 and also as Administrative Officer BPS-16 on 14-10-1984. The case of Syed Sabir Hussain Naqvi is that he was promoted as Circle Registrar. BPS-17 w,e,f, 12-12-1991 vide Government Notification No,F/14505-14497/91, dated 12- 12-1991, on the recommendation of the Selection Board. He claims that he has been promoted as Deputy Registrar on current charge basis vide notification dated 17-4-1998, whereas Nazar Ahmed Khan, Respondent No,1, was appointed in the Cooperative Department as Sub-Inspector and was promoted as Inspector on 21-6-1975, and till 1991 had been working as Inspector. He further claimed that without the approval of the Selection Board respondent Nazar Ahmed Khan was illegally promoted as Assistant Registrar BPS-16 vide notification dated 28-9-1991 with retrospective effect.
The aforesaid order was challenged by the appellant before the departmental authority. Vide notification dated 19-9-1994 respondent No,1 was promoted as Circle Registrar w,e,f, 16-7-1992.
Nazar Ahmed Khan, respondent No,1 filed a review petition against the said notification before the departmental authority. However, this review petition was not decided within the statutory period of 90 days and no appeal was filed by respondent Nazar Ahmed Khan within the prescribed period of limitation before the Service Tribunal. On 17-7-1998, the time-barred review petition was illegally accepted and antedated promotion w,e,f, 25-4-1985 as Circle Registrar was given to the respondent, thereby adversely affecting the service rights of the appellant. From 1985 to 1992 the post of Circle Registrar was not available nor the same was vacant so respondent No,1, Nazar Ahmed Khan, was not eligible to be promoted as Circle Registrar w,e,f, 25-4-1985. Against the notification dated 17-7-1998, an appeal was filed by the appellant before the Service Tribunal and vide the impugned judgment the appellant, Sabir Hussain Naqvi, was declared senior to respondent. No,1, however, the illegal retrospective promotion of respondent No,1 was not set aside.
6. Hence these Appeals Nos.20 and 25 of 2000, one filed by Nazar Ahmed Khan and the other by Syed Sabir Hussain Naqvi.
7. In support of Appeal No,20 filed by Nazar Ahmed Khan, the learned counsel for the appellant, Mr. Abdul Rashid Abbasi, vehemently contended that the impugned judgment of the Service Tribunal is not maintainable in law on the ground that the seniority on a particular post or grade counts from the date of appointment to the said post/grade. The appointment of appellant by promotion to the post of Circle Registrar (BPS-17) w,e,f, 25-4-1985 having been maintained and upheld by the Service Tribunal, the appellant could not be declared junior to respondent No,1 whose date of appointment by promotion to the post of Circle Registrar was 12-12-1991. The judgment, according to the learned counsel for the appellant, recorded by the Service Tribunal runs counter to the provisions of law and rules on the subject. The learned counsel strenuously argued that the order of promotion of appellant having not been set aside by the Service Tribunal, the appellant could not have been deprived of its legal effects. The learned counsel contended that to award promotion from a particular date being within the discretion of the competent Authority could neither be assailed nor upsept by the Service Tribunal. The learned counsel contended that the appellant was senior to respondent No,1 in his capacity as Assistant Registrar (BPS-16) as he was promoted as Assistant Registrar w,e,f, 15-4-1976, whereas respondent No,1 was never promoted/posted as Assistant Registrar (BPS-16). Respondent No,1, however, held the post of Administrative Officer (BPS- 16) and that too w,e,f, 14-10-1984. Respondent No,1 therefore, was junior to appellant in BPS-16 on all counts. The appellant being senior to respondent No,1 in lower grade (BPS-16) is senior to said respondent in BPS-17 even if the appellant is presumed to have been promoted to BPS-17 later than respondent No,1 because the appellant was never superseded by respondent No,
1. The Service Tribunal, thus, ignored the relevant provisions of law regulating the seniority of civil servants and reached the conclusion which is quite converse and contrary to law causing miscarriage of justice.
The learned counsel further argued that respondent No,1 was not eligible for promotion as Circle Registrar prior to 1990. It was only after amendment of relevant rules on 4-10-1990 that Administrative Officers were bestowed with the eligibility of promotion to the post of Circle Registrar. Respondent No,1 was, therefore, neither aggrieved nor could have challenged the promotion of appellant as Circle Registrar prior to year 1990. Such promotion of appellant having been ordered w,e,f, 25-4-1985, respondent No,1 was neither aggrieved nor could assail such promotion of appellant. The appellant, therefore, merits higher place in seniority as compared to respondent No,1 on all counts and the verdict of the Service Tribunal is not sustainable. It was emphatically contended by the learned counsel for the appellant that the contention of the learned counsel for respondent that the order of promotion of respondent No,1 as Circle Registrar BPS-17 dated 12-12-1991 was not challenged by the appellant and that had become final as such the said respondent remains senior to appellant is against law and merits no consideration. Apart from the fact that the appellant being senior to respondent No,1 in the lower grade and having not been superseded by respondent No,1 remained senior to the said respondent in the higher grade as Circle Registrar notwithstanding the promotion of appellant being later in time or delayed by any circumstances beyond the control of the appellant.
8. In reply it was contended by Syed Nazir Hussain Shah Kazmi, the learned counsel for respondent No,1, that respondent No,1 was promoted as Circle Registrar (BPS-17) on the recommendations of the Selection Board while the appellant was promoted as Assistant Registrar without the approval of the Selection Board, as such the appellant was promoted illegally as Assistant Registrar with retrospective effect. The learned counsel maintained that the appellant did not challenge the order of promotion of respondent No,1 dated 12-12-1991 whereby he was promoted as Circle Registrar prior to the appellant. The learned counsel argued that even the order of promotion of respondent as Deputy Registrar on current charge basis has not been challenged by the appellant, so on all the counts respondent No,1 is senior to the appellant. It was strenuously argued by the learned counsel for respondent that the impugned judgment of the Service Tribunal to the extent it relates to promotion of appellant as Circle Registrar w,e,f, 25-4-1985 is not sustainable in law as for awarding ante-date promotion two conditions are essential: the first one is that there must be an existing vacancy available for the promotion at the relevant time and secondly the promotee must have requisite qualification for promotion, while in the instant case no vacancy of Circle Registrar was available from 1985 to 1997. The appellant was not holding the said post and the same was neither vacant nor available. Similarly the appellant was also not qualified for promotion in 1985.Therefore, the ante-date promotion could not have been ordered in favour of appellant. The learned counsel vehemently urged that although respondent No,1 had been declared senior to the appellant but at the same time the Service Tribunal did not set aside the illegal retrospective promotion of appellant.
9. We have given our due consideration to the arguments advanced at the Bar and perused the relevant record made available with care. The Service Tribunal vide the impugned judgment has observed that the appellant Nazar Ahmed Khan was promoted as Assistant Registrar (BPS-16) vide order dated 28-9-1991. At that time respondent No,1 was Head-Clerk in the Department. The cadres of both appellant and respondent No,1 were different and their line of promotion was also different.
This order of promotion of appellant dated 8-1-1976 was cancelled by order dated 15-4-1976 on the application of one Abdul Qayyum Khan, and the Government was directed that the promotion to the office of Assistant Registrar may be made after hearing the parties and on the basis of approval of Selection Board. In 1990 the rules were amended and respondent No,1 was promoted as Circle Registrar BPS-17 on 12-12-1991. Later on respondent No,1 was promoted on current charge basis as Deputy Registrar vide order dated 17-4-1998. The appellant did not challenge the order of promotion of respondent as Circle Registrar dated 12-12-1991 nor the order of his promotion on current charge basis as Deputy Registrar dated 17-4-1998. It was observed by the Service Tribunal that orders dated 1212-1991 and 17-4-1998 have attained finality, therefore, the order of antedate promotion of respondent No,1 did not, in any way, affect the seniority of appellant. It was further observed by the Service Tribunal that in the appeal filed by Abdul Qayyum Khan respondent No,1 was not a party to the proceedings therefore, the same could not affect his interests.
10. From the perusal of the impugned judgment recorded by the Service Tribunal it transpires that it does not suffer from any illegality or infirmity so far as it relates to declaration of seniority to respondent Syed Sabir Hussain Naqvi is concerned, as pointed out by the learned counsel for the appellant, for the following reasons:
(i) It has clearly been laid down, that 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. The appellant is claiming his seniority on the basis of a previous order of his promotion dated 8-1-1976 which was set aside by the Service Tribunal after having been challenged by Abdul Qayyum Khan wherein a direction was given that the promotion to the said post be made after hearing the parties and that the promotion be made on the recommendations of relevant Selection Board;
(ii) Respondent No,1 was promoted as Circle Registrar (BPS-17) vide order dated 12-12-1991 while appellant was promoted as Circle Registrar (BPS-17) on 16-7-1992 to which the retrospective effect was given from 1985;
(iii) The appellant did not challenge the order dated 12-12-1991, whereby respondent was promoted as Circle Registrar prior to the appellant; and
(iv) Similarly the order dated 17-4-1998 whereby respondent has been promoted as Deputy Registrar on current charge basis has also not been challenged by the appellant. Therefore, the appellant could not have been given retrospective promotion as against respondent who had been promoted much earlier than the appellant.
11. We are also of the considered view that keeping in view the facts and circumstances of the case the appellant, Nazar Ahmed Khan, could not have been given retrospective promotion since 1985. It is indeed correct that it is within the discretion of the competent Authority to award a pro forma promotion to any civil servant provided it is, just and equitable and does not adversely affect the rights of another civil servant.
12. In a case reported as Kalsoom Akhtar Hamdani v. The Chairman AJ&K Council Islamabad (1994 SCR 173) it was observed at page 178 as follows:-- "It may be stated that there is no statutory provision either in the Civil Servants Act, 1973 or the Rules framed thereunder that a civil servant is entitled to claim ante-date promotion in case of his appointment by promotion or transfer. However, ante-date or notional appointment by promotion or transfer is within the competence of the appropriate authority if the circumstances of a case so warrant, such as the vacancy to which the promotion was to be made was in existence."
' In a case reported as Prof. Dr. Raja Muhammad Ayub Khan v. Azad Jammu and Kashmir Government and others 1990 MLD 1283, it was observed as under:-- "It may be observed that subsection (2) of Rule 9 envisages that pro forma promotion cannot be claimed as of right by a civil servant. It implies that a pro forma or notional promotion is not foreign to the Civil Servants Act or the Rules. Section 22 of the Civil Servants Act read with Rule 9 empowers the Government to give retrospective effect to a promotion if the circumstances of the case so warrant."
' In an unreported case of this Court titled Sardar Sabir Hussain Khan Abbasi v. Azad Government and others (Civil Appeal No,16 of 1999 decided on 14-5-1999) it was observed at page 13 in a following manner:- "It is evident from the authorities that if the promotion of a civil servant is deferred without any fault on his part, he can be given pro forma promotion, irrespective of the fact whether he was holding the relevant post on acting charge basis or not."
' In another unreported case of this Court titled Kh. Muhammad Ahsan v. Manzoor Ali Khokhar and another (Civil Appeal No,49 of 1998 decided on 15-6-1998) it was observed that ante-date or notional promotion was within the competence of appropriate authority.
' In an unreported case of this Court titled Muhammad Javaid v. Secretary Home and others (Civil Appeal No,200 of 1999, decided on 11-11-1999) it was observed at page 12 in the following manner:- "The mere fact that respondents Nos.4 to 6 were given retrospective promotion because they were holding the posts of Senior Accounts Clerks would not justify to deny the same to the appellant. The perusal of the case law reveals that if a post was in existence and a civil servant was eligible for promotion but he was ignored with no fault on his part, his case of notional promotion can be considered."
' In a case reported as Sh. Manzoor Ahmed v. Azad Government and another 1995 PLC (C.S.) 59 a Full Bench of this Court observed at page 303 as follows:-- "Now, the next point which needs resolution is as to what is the scope of powers of the Government under section 22 of the Azad Jammu and Kashmir Civil Servants Act, 1976 and the rules framed thereunder. To be more specific, whether the Government could pass an order under the said provisions giving it a retrospective effect, even if the same adversely affects the seniority of other civil servants. "
' It was further held that these powers are not absolute but are qualified.
' In another Full Bench case of this Court titled Muhammad Arshad Khan and another v. Azad Government and others (Civil Appeal No,1 of 1999 decided on 8-7-1999) while dealing with the question of ante-date promotion it was observed at page 43 in a following way:- "Next, we deal with the question as to whether in the instant case the promotion of the respondents can be given retrospective effect at all. It may be stated that there are two conditions precedents for giving ante-date operation to a promotion. The first is that there must be an existing vacancy available for the promotion at the relevant time and secondly the promotee must have requisite qualification for promotion on the relevant date."
13. From the survey of the case law it becomes abundantly clear that it is always within the discretion of the competent Authority to order the antedate promotion of a civil servant provided it does not adversely affect the service rights of other civil servants. This rule is, however, of not universal application. It differs from case to case. In the instant case as the appellant was not recommended for promotion by the relevant Selection Board in the year 1976 and it was for this reason that his order of promotion as Assistant Registrar was set aside, whereas the respondent on coming into being of the relevant rules by an amendment in 1990 became eligible to be promoted as Circle Registrar vide order dated 12-12-1991. This order of promotion of respondent is holding the field so far and the same was not challenged by the appellant before any forum and thus, finality has attached to the said order.
14. The contention of the learned counsel for the appellant that the appellant having been promoted as Assistant Registrar in 1976 he was not obliged to challenge the order of promotion of respondent No,1 passed in 1.991 is hereby repelled for the simple reason that the promotion of appellant made in year 1976 without the approval of relevant Selection Board was illegal and void in the eye of law. When the appellant was promoted in 1992 as Circle Registrar and the effect to his promotion was given from 1985, the respondent challenged the aforesaid order contending therein that he having been promoted much earlier than the appellant was not obliged to challenge the order of illegal promotion of appellant made in 1976.
15. The contention of the learned counsel for the respondent is also not without any substance that no post of Circle Registrar was vacant from 1985 to 1992. The learned counsel for the respondent drew our attention to ground ( c/) of para. No,10 of his memo. Of appeal before the Service Tribunal, whereby it was specifically averred that the ante-date promotion could not have been awarded in favour of appellant as there was no vacancy of Circle Registrar in 1985. In reply to this para. Of the memo. Of appeal, the appellant and the department have made evasive denial by stating that it was incorrect. Similarly we find in the impugned judgment of the Service Tribunal that this point was duly argued by the learned counsel for the respondent, Syed Nazir Hussain Shah Kazmi, but the Service Tribunal failed to resolve it. Even in the memo. Of petition for leave to appeal this plea has specifically been raised that from 1985 to 1992 the post of Circle Registrar was not vacant to be filled in by way of promotion as well as in the concise statement of the respondent. The respondent alongwith his concise statement has also filed a certificate of the Cooperative Department bearing testimony to the fact that the post of Circle Registrar was not available from 1985 to 1992. Even in this view of the matter the respondent could not have been given the antedate promotion from 1985 in view of the fact that the post was not available at that time. Thus, it follows that uptil 1992 the post of Circle Registrar was not available as such the ante-date promotion of appellant could not have been awarded from 1985. The impugned judgment of the Service Tribunal, whereby the ante-date promotion of appellant from 1985 was kept intact is hereby set aside. However, the other part of the order whereby appellant Syed Sabir Hussain Naqvi was declared senior to respondent Nazar Ahmed Khan as Circle Registrar being perfectly valid stands maintained. The order of promotion of appellant Nazar Ahmed Khan as Circle Registrar was passed by the Government on 16- 1992, therefore, his seniority would commence from the date of his promotion, i,e, 16-7-1992.
16. In the light of what has been stated above, we dismiss Appeal No,20 of 2000 filed by appellant Nazar Ahmed Khan being devoid of any legal force, whereas Appeal No,25 of 2000 filed by appellant Syed Sabir Hussain Naqvi is accepted in terms that the seniority of respondent Nazar Ahmed Khan shall start from the date of his promotion, i,e, 16-7-1992. The findings thus, recorded by the Service Tribunal that respondent Syed Sabir Hussain Naqvi is declared senior to Nazar Ahmed Khan are kep: intact. In the circumstances of the case, we pass no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.