1. ' SARDAR MUHAMMAD ASHRAP KHAN (CHAIRMAN).-The facts giving rise to this appeal, shortly stated, are, that Mohammad Sayyab appellant was temporarily appointed as Moharrir in Headquarter Jail, Muzaffarabad by its Superintendent vide his order dated 14-11-1965 (Annexure A/1 with the appeal) and was still working in the same capacity when he was transferred to the Health Department and posted as Junior Clerk in the office of Director Health Services, Muzaffarabad by Staff Officer Directorate of Health Services order dated 17-9-1966 (copy Annexure A/3). In the Health Department the appellant received two promotions, first as a Senior Clerk in June, 1972 and second one as Quartermaster in April 1975 vide orders dated 18-6-1972 and 9-4-1975 of Deputy Director and Director, Health Services respectively (copies Annaxures A & B).
2. ' Maqsood Ahmed and Ch. Alif Din respondents Junior Clerk in the District Jail, Muzaffarabad and Store Keeper in the office of Inspector-General of Prisons, Azad Kashmir at Rawalpindi respectively were both promoted and appointed as Assistant Superintendent Jail by an order dated 20-9-1975 (copy of the order not filed with the appeal). Syed Ghulam All Shah respondent No, 5 a laboratory Technician in the Health Department by promotion was appointed as Deputy Superintendent Jail on ad hoc basis subject to the confirmation by the Public Service Commission vide Government Order dated 22-7-1976 (copy Annexure F).
3. ' Feeling aggrieved by the above-stated promotions of the respondents Nos. 3 to 5 the appellant has lodged the present appeal in which he has prayed that by setting aside the impugned orders he be appointed first to the post of Assistant Superintendent, Jail and then to that of Deputy Superintendent Jail from the relevant dates.
4. ' The grounds for grant of relief sought in the appeal are that the appellant was initially an employee of the Jail Department and was transferred to the Health Department in the interest of Government and that the respondents Nos. 3 to 5 were junior to him as they were placed in National Pay Scales Nos. V, VI and VII respectively whereas the appellant as Quartermaster was in the National Pay Scale No, VIII and as such under rules 1160 and 1164 of Jail Manual he had preferential claim to the promotion to the posts of Assistant and Deputy Superintendent Jail as compared to the said respondent who did not possess any special merit and ability entitling them to supersede him.
5. ' The respondents have contested the appeal and put in their separate written statements in which besides controverting the facts stated in the appeal have also raised the following legal objections : -
(a) That the appeal is not maintainable because the appellant is not an aggrieved Civil Servant within the meaning of section 4 of the Azad Jammu & Kashmir Service Tribunal Act, 1975 as being an employee of the Health Department, no terms and conditions of his service have been infringed by the impugned orders which relate to the promotions of respondents in the Jail Department and not in the Health Department.
(b) That the appeal suffers from the defects of misjoinder of causes of action inasmuch as the appellant has lodged present appeal against two separate orders passed on different dates in which the respondents Nos. 3 to 5 have no joint interest.
(c) That the appeal is time-barred to the extent of respondents Nos. 3 and 4.
(d) That no appeal lies against the impugned order dated 27-7-1976 which is not final as the promotion of the respondent No, 5 to the post of Deputy Superintendent Jail is on ad hoc basis subject to the confirmation by the Public Service Commission.
6. ' On the facts of the appeal it has been contended that the appellant was transferred and posted in the Health Department not in the Government interest as claimed by him but in his own interest being attracted by higher post and grade of Junior Clerk as compared to that of Moharrir in the Jail Department. It is also denied in the written statement that the appellant is in any way senior to the respondents Nos. 3 to 5 and in this regard it is alleged that the appellant belongs to the Health Department and thus cannot claim seniority over the respondents Nos. 3 and 4 who were the employees of the Jail Department. It is also not admitted that the respondent No, 5 at the time of his promotion was holding a post carrying lower grade of pay than that of appellant in the Health Department, and is rather contended that he was senior to him being an employee of higher scale of pay of Rs, 110-240 as compared to that of Rs, 105-175 of the ,appellant.
7. ' We have heard the learned counsel for the parties at length and have also perused the record of the case. The learned counsel for the respondents have raised preliminary objection regarding the maintainability of the present appeal. It has been argued that this Tribunal has no jurisdiction to entertain the appeal as the impugned orders do not in any way adversely affect any of the terms and conditions of his service. In this regard it is contended that the appellant is a permanent employee of the Health Department and according to terms and conditions of his service he has no claim to the promotions to the posts in the Jail Department. This being the case, it is argued that the appellant does not come in the category of civil servant aggrieved by an order of the departmental authority in respect of his terms and conditions of service and as such not entitled to approach the Service Tribunal under section 4 of the Azad Jammu and Kashmir Service Tribunal Act. In reply it has been argued by the learned counsel for the appellant that the appellant was initially an employee of the Jail Department and was transferred to the Health Department, in the interest of the Government and thus his right of promotion in the Jail Department cannot be denied to him. Before appreciating and making any decision on the point regarding lack of jurisdiction of the Tribunal to entertain this appeal raised by learned counsel for the respondents it is necessary first of all to decide as to whether the appellant is an employee of the Jail Department or Health Department of Azad Kashmir Government. After taking into consideration all the circumstances of the case we are of the view that the appellant is a permanent employee of the Health Department and not that of the Jail Department. It is no doubt correct that the appellant began his career as Government servant in the Jail Department by joining the same in the capacity of temporary Moharrir but later on was transferred to the Health Department and posted against a higher post of Junior Clerk in the office of Director Health Services Muzaffarabad to that of Moharrir in the Jail Department. From the order of his transfer and posting to the Health Department it does not appear that his lien was retained against any post in the Jail Department and his transfer to the Health Department was only on deputation. On the contrary from the subsequent orders of his promotion in the Health Department it becomes quite clear that by transfer from the Jail Department he was permanently absorbed in the Health Department where he was first promoted to the post of Senior Clerk and then to that of Quarter Master against the permanent vacancy. If he continued to be the employee of the Jail Department then there was no question of his getting promotions one after another in permanent capacity in the Health Department. Thus the very fact that the appellant received two promotions in the Health Department against permanent vacancies goes a long way to show that he is a permanent employee of the Health Department and had not claim on any post in the Jail Department at the time of making the impugned orders.
8. After having arisen from the post of Junior Clerk to that of Quarter Master in the Health Department it does not lie in his mouth to say that he still is an employee of the Jail Department and by the application of principle of estoppel he cannot be permitted to lay such a claim. Even otherwise he could not retain his lien against any post in the Jail Department for the simple reason that his employment as a Moharrir in the District Jail Muzaffarabad was only a temporary one at the time of his transfer and posting in the Health Department. Besides the appellant has no where in his appeal categorically stated that he is an employee of the Jail Department and the only stand taken in the appeal is that it was in the interest of the Government that he was transferred to the Health Department as Junior Clerk. There is no bar to fill a vacancy in any Department by transfer of an employee from another Department and rather such an appointment is contemplated by relevant provision of Kashmir Service Regulations. In the circumstances of the present case it appears to us that the appointment of the appellant against the post of Junior Clerk in the Health Department was made by his transfer from the temporary employment in the Jail Department with which he severed all his connections on his said transfer and posting. In view of the above discussion we have no hesitation in holding the appellant to be in the permanent service of Health Department and not an employee of the Jail Department at the time of passing the impugned orders.
9. ' After having come to the conclusion that the appellant was at the relevant time an employee of the Health Department the next question that falls for determination is as to what is its effect on the present appeal. A civil servant is given a right of appeal to this Tribunal by section 4 of the Azad Jammu & Kashmir Service Tribunal Act whose relevant portion reads as under:- "Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service including disciplinary matter may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal."
10. ' Thus as will appear from the reading of the relevant portion of the section reproduced above it is not each and every civil servant who is given the right of appeal but only that civil servant who is aggrieved by any final order made by a departmental authority in respect of any of the terms and conditions of his service is entitled to approach the Tribunal for redress of his grievances. The impugned orders do not relate to the terms and conditions of the service of the appellant with the result that the appellant has no locus standi to come in appeal against them before the Tribunal. It is neither the case of the appellant nor is shown to us that the terms and conditions of the appellant's service in the Health Department secure any guarantee to the promotion to the post of higher grade in the Jail Department such as that of Assistant and Deputy Superintendents. By no stretch of imagination it can be contemplated that the terms and conditions of an employee of a particular service can embody such conditions which would entitle the employee of that service to promotions to the higher posts in an another service of the Government. A civil servant of one Department cannot as a matter of right claim promotion in other Department of the Government.
11. In this view of the matter as the appellant's terms and conditions of service are not in any way adversely affected by the impugned orders he cannot invoke A the jurisdiction of the Tribunal under section 4. Of the Azad Jammu and Kashmir Service Tribunal Act and consequently the present appeal is no competent.
12. ' Apart from the above legal position regarding the non-maintainability of the present appeal the appellant's claim to promotions to the posts of Assistant and Deputy Superintendent Jail on the basis of seniority over the respondents Nos. 3 to 5 and rules 1160 and 1164 of Jail Manual is also unsustainable. His claim to seniority is unfounded. He being an employee of the Health Department cannot be treated senior to respondents Nos. 3 and 5 who belong to the Jail Department. Seniority has always reference to seniority in one's own service and class and not in altogether different service of the Government. Similarly the appellant was never senior to respondent No, 5 in the Health Department at the time of passing the impugned order dated 27-7-1976 as the post of Quartermaster held by him was in a lower grade of pay than that of the Laboratory Technician held by the said respondent. Likewise, even if for the sake of arguments the appellant is presumed to be an employee of the Jail Department he is not eligible for promotion to the post of Assistant Superintendent Jail in view of the provisions of rules 1160 and 1164 of Punjab Jail Manual as is applicable in Azad Jammu and Kashmir. It would be advantageous to reproduce the above-stated rules of Jail Manual which read as under respectively :- 1160. (1) Recruitment to the service shall be made-
(a) by direct recruitment of outside candidates;
(b) in exceptional circumstances on the recommendation of the Inspector-General in respect of any deserving candidates from amongst the clerks and storekeepers for promotion to the service, subject to the following conditions;
(1) The candidate must be at least an Accounts Clerk, with not less than five years service in the Department, or
(2) he must at least he a Senior Clerk; or
(3) a permanent storekeeper.
13. ' The academic qualification shall not be less than Matriculation in any case.
(ii) The proportion of recruitment by direct appointment and promotion shall be determined by Government from time to time as may be necessary.
14. 1164. All appointments to the service whether permanent, temporary or on probation shall be made by the Government on the advice of the Punjab and North-West Frontier Province Joint Public Service Commission. In exceptional circumstances Government may consider the recommendations of the Inspector-General in respect of any deserving candidate from amongst the clerical and the storekeeper staff for promotion to the service subject to the following conditions:-
(a) the candidate must be at least an Accounts Clerk, with not less than five years service in the Department; or
(b) he must be at least a Senior Clerk; or
(c) a permanent Storekeeper.
15. ' The academic qualification shall not be less than Matriculation in any case.
16. ' The reading of the above rules makes it quite clear that recruitment to the service of Assistant Superintendent Jail is ordinarily made by direct recruitment by the Government on the advice of the Public Service Commission and it is only in exceptional circumstances that the Government may make appointment by promotion of any deserving candidate who is at least an Accounts Clerk with not less than five years service in the Department or is at last a Senior Clerk or a permanent Storekeeper. None of the conditions prescribed for eligibility of a departmental candidate for promotion to the post of Assistant Superintendent Jail is satisfied in the case of the appellant. He was neither Accounts Clerk nor Senior Clerk or Storekeeper in the Jail Department at the time of making the impugned orders. He had only about 11 months service in the Jail Department as a Moharrir at the time of his transfer and posting as Junior Clerk in the Health Department. Thus he could not be appointed to the service of Assistant Superintendent Jail, by promotion under the relevant rules of Punjab Jail Manual as applicable in Azad Kashmir. The respondents Nos. 3 and 4 may also not be eligible for promotion to the post of Assistant Superintendent Jail but their irregular or illegal promotions do not give him any cause of action for challenging the impugned order of their promotion.
17. ' It has been next contended by the learned counsel for the respondents that the appeal is also bad in law on account of misjoinder of causes of action. It is argued that the appellant has preferred this appeal against two orders which are made by two different authorities at different times and in which all the defendants have no joint interest. This contention of the learned counsel for the respondents is also not without merit. The appellant has preferred this appeal against two impugned orders dated 20-9-1975 and 22-7-1976 respectively. The former relates to the promotion of the respondents Nos. 3 and 4 to the post of Assistant Superintendent Jail whereas by later the respondent No, 5 is promoted to the post of Deputy Superintendent Jail. These orders are made by different authorities and a period of about 9 months intervenes between their passing and which taken separately do not affect all the respondents jointly.
18. ' Rule 3 of Order II of C. P. C. Enables a plaintiff to unite in the same suit several causes of action against the same defendant or same defendants jointly which means that where two or more defendants are sought to be joined together, they must be jointly liable for each and every one of the causes of action sought to be joined and a suit against several defendants on causes of action accrued against each of them separately and in respect of which they are not jointly liable is bad for misjoinder of defendants and causes of action. When seen in the light of the above provision of the C. P. C. The present appeal is a clear instance of misjoinder of defendants and causes of action.
19. In the present appeal two different and separate causes of action have been joined together, one cause of action has arisen to the plaintiff against respondents Nos. 3 and 4 on passing the impugned order of September 1976 and another cause of action has accrued to him against the respondent No, 5 on his promotion to the post of Deputy Superintendent Jail vide order dated 22-7- 1976. In both the above-stated orders all the respondents are not jointly liable for each of the causes of action. The right course for the appellant was to institute one appeal against respondents Nos. 3 and 4 against the impugned order of their promotion and another appeal against respondent No, 5 against the impugned order dated 22-7-1976. The learned counsel for the appellant does not disagree with this objection of the learned counsel for the respondents if the case in the light of the provisions of C. P. C. But his contention is that the C. P. C. Is not applicable to the proceedings before this Tribunal and as such the question of misjoinder of causes of action and defendants does not arise, at all. We find no substance in the contention of the learned counsel for the appellant that C. P. C. Has not application to the proceedings before the Service Tribunal. Section 5(2) of the Azad Jammu & Kashmir Service Tribunal Act clearly stipulates that the Tribunal for the purposes of deciding an appeal shall be deemed to be a civil Court and shall have the same powers as are vested in such courts under the C. P. C.
20. ' In view of the above provision of the said Act there remains no ambiguity or uncertainty about the application of the C. P. C. To the proceedings of this Tribunal in as much as when this Tribunal is a civil Court having all its powers the provisions of C. P. C. For all practical purposes are applicable to its proceedings. The C. P. C. Does not itself create any Courts and according to its preamble it is intended to regulate the procure of the Courts of civil judicature. This Tribunal being a civil Court for the purpose of deciding appeal the procedure embodied in the Code of Civil Procedure is fully applicable to it subject of course to the provision of the Service Tribunal Act which creates the Tribunal. The view that the C. P. C. In toto applies to proceedings before the Tribunal has already been taken in a case entitled "Azad Govt. v. Kh. Ahmed Din, in which it has been held that a close look at subsection (2) of section 5, leaves no doubt that the Service Tribunal for the purpose of deciding an appeal is a civil Court and the proceedings before it too are of civil nature. The Tribunal has also the same powers as are vested in a civil Court under the Code of Civil Procedure for the purpose of deciding appeals and like the High Court exercising the powers of writ under Article 98 of the Constitution of 1962, the Tribunal being a civil Court and proceedings before it being also of civil nature, has the powers to review its orders.
21. ' For the foregoing reasons the appeal is liable to be dismissed both on legal grounds as well as on merits, which is accordingly dismissed being incompetent with costs. The appellant will pay Rs, 90 as cost to respondents 3 to 5 which will be equally distributed among them and deducted from the security deposited with the Tribunal. 1977 PLC (C. S. T.) 60