' SARDAR SAID MUHAMMAD KHAN, C.J.---As the above entitled appeals arise out of the single judgment of the Service Tribunal, we propose to dispose of the same together.
2. The brief facts giving rise to the present appeals are that Sardar Muhammad Ashraf Khan, appellant, was appointed as Assistant Engineer Electricity upon the recommendations of the Public Service Commission vide Notification dated 29-11-1972; prior to that he was serving in AKLASC in the said capacity and, thus, his service in AKLASC was also counted towards Government service vide Notification dated 22-11-1975. It was alleged by the appellant that Mir Bashir, respondent No,4, and Sal dar Sakhi-uz-Zaman Khan, respondent No,5 appeared before the Public Service Commission along with the appellant and they were also approved for the appointment as Assistant Engineers but the said respondents belonged to District Muzaffarabad, they could not be appointed due to non-availability of quota of the said district. Therefore, the appellant and one Shamim Chaudhry were appointed on two available vacancies 'which fell to the quota of Districts Poonch and Mirpr respectively. However, Mir Bashir, respondent No,4, was appointed for the first time as Assistant Engineer in the leave arrangement on 25-8-1971 as is evident from the order of his appointment which appears at page 9 of the file of Service Tribunal. The aforesaid appointment was prior to his appearance before the Public Service Commission on 29-7-1972 as a result of which he could not be regularly appointed due to the absence of quota of Muzaffarabad District. He was appointed on 29-11-1972 in the leave arrangement of one Capt. Nazar Muhammad on temporary basis; thereafter he was appointed as Executive Engineer vide order dated 18-2-1978 in his own pay scale on acting charge basis. According to the ease of Sardar Muhammad Ashraf, appellant, the aforesaid two appointments were purely temporary. However, Mir Bashir, respondent, was promoted to Grade B- 19 along with Sakhi-uz-Zaman, respondent, on 9-2-1989 without considering the, case of promotion of Sardar Muhammad Ashraf, appellant. It is further alleged that Mir Bashir and Sakhi-uz-Zaman, respondents, preferred review petitions for their antedated promotion to Grade B-19 which were accepted and they were promoted from 7-3-1988 and 16-8-1987 respectively as is evident from the order which is at page 40 of the file of this Court.
3. Sardar Sakhi-uz-Zaman, respondent No,5, was for the first time appointed as Deputy Secretary/Executive Engineer subject to the recommendations of the Public Service Commission in Grade B-18, subsequently, when his case was referred to the Public Service Commission, the Public Service Commission observed that direct appointment as Executive Engineer could not be made under rules. However, the Public Service Commission observed that although Sakhi-uz-Zaman was fit for promotion to Grade B-18 but this could not be done under rules without relaxing the same by the competent authority. Thereafter, the question of relaxation of rules was considered by the Services and General Administration Department but it did not get the rules relaxed by the competent authority. Thus, according to the case of the appellant, the appointment of Sakhi-uz- Zaman was illegal and, thus, he could not be appointed in Grade B-18 or promoted to Grade B-19 and that, too, before the dates when the appellant was promoted to the said grades. Sardar Muhammad Ashraf, appellant, was promoted to Grade B-18 on 10-8-1978 and thereafter he was promoted to Grade B-19 on 27-4-1994 with retrospective effect from 21-12-1988. According to the case of the appellant, in fact he is entitled to be promoted to Grade B-18 from 13-3-1976 and to Grade B-19 from 13-3-1983 in view of the fact that he was inducted in service on the recommendations of the Public Service Commission and was promoted to Grades B-18 and 19 on the recommendations of the Selection Board whereas the induction in service of respondents Nos.4 and 5 was irregular and on the temporary basis.
4. The aforesaid contentions of the appellant were strenuously controverted by the respondents.
They maintained before the Service Tribunal that their promotion to Grades B-18 and 19 was not challenged by the appellant by filing any appeal or review etc. To the Service Tribunal and, thus, he cannot claim seniority against them. It was further their case that the appellant has come up in appeal against the Notification dated 27-4-1994, whereby he was promoted to Grade B-19 but he never challenged the appointment of respondents Nos.4 and 5 or their promotions either to Grade B-18 or B-19. They also contended before the Service Tribunal that their induction in service and subsequent promotions were according to rules:
5. The perusal of the judgment of the Service Tribunal reveals that it came to the conclusion that respondents Nos.4 and 5 were not inducted in service on the recommendations of the Public Service Commission dated 29-11-1972 because no quota of Muzaffarabad District was available and, thereafter, Mir Bashir, respondent, was temporarily appointed in Grade B-17 in leave arrangement, as has been indicated above, without fresh approval of the Public Service Commission; similarly Sakhi-uz-Zaman was appointed in Grade B-18 as Executive Engineer despite the opinion of the Public Service Commission that he could not be so appointed directly without the relaxation of the rules by the competent authority. However, the Service Tribunal expressed the view that as the appointment of Mir Bashir in Grade B-17 and Sakhi-uz-Zaman in Grade B-18 and thereafter -their promotion to Grades B-18 and 19 was not challenged before the Service Tribunal within the prescribed period of limitation by Sardar Muhammad Ashraf, appellant, he could not be given any relief by the Tribunal despite the aforesaid legal infirmities in the appointment and promotion of respondents. Nos.4 and 5. However, the Service Tribunal expressed the view that although Sardar Muhammad Ashraf, appellant, should have been considered for promotion to Grade B-19 along with respondents Nos.4 and 5 but it was not done, therefore, if the Government deemed it proper, it may give retrospective effect to the promotion of the appellant so that his grievance could be redressed, especially so when the adverse remarks in his A.C.Rs, were subsequently corrected by the competent authority as is evident from the copy of the relevant order which is on the record. Sakhi-uz-Zaman, appellant, has filed an appeal against the part of the judgment, whereby the said observations have been made by the Tribunal.
6. Mr. M. Tabassum Aftab Alvi, Advocate, the learned counsel for Sardar Muhammad Ashraf, appellant, has vehemently argued that the Service Tribunal has committed an error in holding that the appellant could not be given the relief of ante-dated promotion as claimed by him to Grades B-18 and 19 because he did not file appeals against the relevant orders within time prescribed under law The learned counsel has referred to various copies of the departmental appeals filed by the appellant challenging the promotion orders of respondents Nos.4 and 5 to Grades B-18 and 19.
According to the learned counsel as the grievance of the appellant against the promotion or appointment of respondents Nos.4 and 5 to Grades B-18 and 19 arose in the year 1994 when he was promoted to Grade B-19, he was entitled to the relief sought by him despite the fact that he did not file appeals against the aforesaid orders before the Service Tribunal. The learned counsel has argued that it is a well-settled principle of law that if the Service Tribunal or this Court comes to the conclusion that if the terms and conditions of service of a civil servant including that of seniority are adversely affected, it can order the ante-dated promotion provided the aggrieved civil servant was eligible for promotion and the vacancy was also available. The learned counsel has argued that respondents Nos.4 and 5 whose initial appointment and promotion to Grade B-18 and 19 are violative of law as being without recommendation of the Public Service Commission or the Selection Board, have become senior to the appellant who was not only inducted in service in Grade B-17 on the recommendations of the Public Service Commission and, thus, being senior to respondents Nos.4 and 5 was entitled to the promotion to Grades B-18 and 19 before them. The learned counsel has argued that despite the fact that the Service Tribunal has accepted the contention of the appellant with regard to the irregular appointment and promotion of respondents Nos.4 and 5, it refused to give him the relief by ordering his ante-dated promotion on the ground that it had no jurisdiction to direct antedated promotion of the appellant because he had not appealed against the appointment and promotion of respondents Nos.4 and 5. The learned counsel has argued that where there is wrong, there is remedy; he has contended that when respondents Nos.4 and 5 were considered for promotion to Grade B-19 in the year 1989, the appellant was entitled to the promotion but he was not considered. According to him, he was not considered on the basis of incorrect A.C.Rs, which were subsequently corrected by the concerned authority and he was promoted to Grade B-19 in 1994 but instead of giving the retrospective effect to his promotion from a date earlier to the dates of promotion of respondents Nos.4 and 5 to Grade B-19, he was promoted from 21-12-1988. The learned counsel has also controverted the contention raised in cross appeal whereby the Service Tribunal has observed that Government, if so desires, may give retrospective effect to the promotion of the appellant, herein. He has argued that the Government has wide powers to give antedated promotion to a civil servant if the circumstances of a case so warrant. He has contended that in the instant case, the cross-appeal filed by Sakhi- uz-Zaman has no merits. He has cited following authorities in support of his contentions:-- ' In a case reported as Muhammad Aslam Khilji v. Azad Government of Jammu and Kashmir 1991 PLC (C.S.) 128, it has been held that the working paper showed that at the time of the promotion of the Extra-Assistant Commissioner, the relevant papers of the appellant were not transmitted to the concerned Selection Board and, thus, it could not be said that the Selection Board considered the fitness or otherwise of the appellant. The appeal was accepted and it was held that Muhammad Aslam Khilji, appellant, would be deemed to have been promoted as Extra-Assistant Commissioner from 28-2-1984 in place of Abdul Haq Abbasi, respondent.
' In a case reported as Nisar Ahmad Kayani v. Azad Government 1999 PLC (C.S.) 1002, it was held that the question whether an order passed under section 22 of the Civil Servants Act is just and equitable, depends upon the circumstances of each case. Therefore, it was held that the appellant, who was dismissed from service on serious charges of misappropriation, could not be reinstated by resorting to the provisions contained in section 22 of the Civil Servants Act: ' Ina case reported as Ch. Abdul Latif v. Secretary, AJ&K Council 2000 PLC (C.S.) 210 it has been held that since all the conditions seemed to have been fulfilled by the concerned civil servant, it would be just for the Azad Jammu and Kashmir Council to give ante-dated promotion to the concerned civil servant from the date on which the post under reference fell vacant keeping in view the other legal requirements.
' In a case reported as Ch. Abdul Karim v. Raja Muhammad Nisar (1999 PLC (C.S.)624), it was directed that the Selection Board should reconsider the question as to whether the respondent was fit for promotion as Assistant Conservator of Forest on 14-1-1990 when the matter regarding the promotion of the parties was finalized and the recommendations were made to the Government. If it was found by the Selection Board that in view of the correction of the A.C.Rs, and the academic qualification, the respondent No,1 was fit for promotion on 14-1-1990, he would be deemed senior to respondents Nos.4 and 6 and in such an eventuality, the respondent would also be entitled to other benefits which might flow from his ante-dated promotion.
' In a case reported as Ghulam Mustafa Qureshi v. Azad Government (1994 SCR 227), it was held that an ad hoc or temporary appointment would not entitle a civil servant to claim ante-dated promotion.
' In a case reported as Muhammad Azad Khan v. The Secretary, AJ&K Council 1999 PLC (C.S.) 122 it has been held that the date of promotion can be changed by the Service Tribunal if a case is made out that the terms and conditions of service of a civil servant have been violated while fixing the date of promotion. It was further held that as on the relevant date, the promotee was fit for promotion but the same was withheld without any justification, such a promotion should be given retrospective effect.
7. Mr. Farooq Hussain Kashmiri, Advocate, the learned counsel for Sardar Muhammad Ashraf, appellant, owned the arguments advanced by Mr. M. Tabassum Aftab Alvi. He has also cited an unreported of this Court case titled Mrs. Nargis Shaheen v. Sh. Manzoor Ahmad (Civil Review Petition No,9 of 1994, decided on 16-11-1994), whereby the review petition was dismissed by majority holding that the ground on which the review was sought was not justified to allow the review. This judgment does not show as to how it is applicable to the facts of the case in hand.
8. In reply, Mr. Ghulam Mustafa Mughal, Advocate, the learned counsel for Sakhi-uz-Zaman, appellant, (hereinafter shall be called respondent No,5) has controverted the arguments advanced on behalf of the appellant. He has argued that there was no legal infirmity either in the appointment of respondent No,5 in Grade B-18 directly or his promotion to Grade B-19. He has contended that his appointment in Grade B-18 was made on the recommendations of the Public Service Commission and the mere observations of the Public Service Commission that he could not be directly appointed as Executive Engineer in Grade B-18 would not invalidate his appointment. In alternative, he has contended that even if-it is assumed that the appointment of respondent No,5 was violative of any rule, that was not challenged by the appellant by filing an appeal to the Service Tribunal and the same has attained finality. He has further contended that respondent No,5 was promoted to Grade B-19 in the year 1989 and was given ante-dated promotion on his review petition in the year 1992 but no appeal was filed before the Service Tribunal by the appellant and, thus, the Service Tribunal has rightly held that Sardar Muhammad Ashraf, appellant, is not legally competent to claim seniority against respondent No,5; according to him even an order found to be violative of rules, if not challenged in the proper forum at appropriate time, its effect cannot be nullified. The learned counsel has submitted that the Service Tribunal has committed a grave error in giving direction to the Government to give retrospective effect to the promotion of Sardar Muhammad Ashraf, appellant. He has contended that when the Service Tribunal has held that it could not give any relief to the appellant because he failed to challenge the relevant orders of appointment and promotion of respondent No,5, how it could direct the Government to give him the relief under section 22 of the Civil Servants Act. The learned counsel has argued that an order under section 22 of the Civil Servants Act could be passed by the Government only if it is 'just and equitable' and not otherwise. The learned counsel has controverted the arguments on behalf of the appellant that when the case of promotion of respondent No,5 to Grade B-19 was considered by the Selection Board, the case of Muhammad Ashraf, appellant, was not sent to the Selection Board. He has referred to working paper submitted by the department wherein the name of Muhammad Ashraf, appellant, was included in the panel but he was superseded. It may be observed that it has not been mentioned as to why he was not promoted or whether he was fit for promotion in Grade B-19 or not. However, according to the learned counsel for respondent No,5, it would be deemed that Sardar Muhammad Ashraf, appellant, was considered at the time of promotion of respondents Nos.4 and 5 to Grade B-19 but he was superseded; according to the learned counsel, as the appellant did not challenge the aforesaid order of supersession, he is not competent to seek retrospective promotion on the ground that in his estimation the appointment of respondent No,5 in Grade B-18 or his promotion to Grade B-19 was violative of the relevant rules. The learned counsel has cited following authorities in support of his contentions: ' In a case reported as Muhammad Ilyas Khan v. Sardar Muhammad Hafeez Khan (2001 SCR 179), it has been held that as retrospective promotion of the respondent from the year 1987 was not challenged, the same attained finality and, thus, the argument that he would not be promoted from the said date could not be pressed into service; it was further observed that even a void order adversely affecting the interest of a person should be challenged within the prescribed period of limitation before the proper authority.
' In a case reported as Muhammad Ilyas Khan v. Sardar Muhammad Hafeez Khan 2001 PLC (C.S.)
445, it has been held that the seniority would be reckoned from the date of regular appointment in a grade; it was further held that inherent powers of the Court cannot be pressed into service where specific provision for redressal of the grievance of a person is available in law. It was further observed that the Court is to administer justice according to law and its inherent powers can only be invoked to supplement the law on the statute book and not to decide a case irrespective of such statutory provisions.
' In a case reported as Abdul Khaliq v. Zaheer Ahmad 2000 PLC (C.S.) 706, it has been held that the Service Tribunal can only act on an appeal and it has no power to suo motu issue any direction or pass any order, especially so when it had come to the conclusion that the appeal was not maintainable.
' In a case reported as Raja Muhammad Ashraf Kayani v. The Azad Jammu and Kashmir Government (1989 PLC (C.S.) 561), it has been held that the Service Tribunal had the jurisdiction which has been conferred on it by law under section 5 of the Service Tribunals Act and, thus, it cannot give a relief to an aggrieved person suo motu.
' In an unreported case titled Muhammad Javaid v. Secretary Home (Civil Appeal No,200 of 1999, decided on 11-11-1999], it has been held that as the contending parties had already been promoted as Senior Clerks in Grade B-9 but their promotion was not challenged, therefore, the failure to amend the departmental rules would not affect the merits of the appeal. However, it was held that although ordinarily, the question of ante-dated promotion is to be considered by the Appointing Authority but if the circumstances of the case so warrant, this Court can give the relief to an aggrieved civil servant by issuing direction that the promotion of such a civil servant should be given effect from a previous date. Consequently, the appeal filed by the appellant was accepted and it was held that his promotion would be effective from 28-12-1991, the date on which respondent No,5 was given retrospective promotion.
9. Kh. Shahad Ahmad, Advocate the learned counsel appearing on behalf of Mir Basir, respondent No,4, has partly owned the arguments advanced on behalf of respondent No,5. He has further argued that the initial appointment of Sardar Muhammad Ashraf, appellant, in Grade B-17 was also made on temporary basis. He has submitted that the Government can consider the retrospective promotion of Sardar Muhammad Ashraf, appellant, in relation to respondent No,5 and not respondent No,4.
10. We have given due consideration to the arguments raised at the Bar. As has already been stated, the Service Tribunal has accepted the contention of Muhammad Ashraf, appellant, that the initial induction in service of respondent No,4 in Grade B-17 and that of respondent No,5 in Grade B- 18 was irregular; the Service Tribunal has also held that the appellant was senior to respondents Nos.4 and 5 and, thus, he should have been promoted to Grades B-18 and 19 before the promotion of respondents Nos.4 and 5. However, the Service Tribunal has held that as the appointment and promotion of respondents Nos.4 and 5 were not challenged by Sardar Muhammad Ashraf, appellant, within the prescribed period of limitation by filing an appeal to the Service Tribunal, it cannot give ante-dated effect to his promotion. However, the Service Tribunal made an observation that in the circumstances indicated above, the Government may consider the case of Sardar Muhammad Ashraf, appellant, under section 22 of the Civil Servants Act to give ante-dated effect to his promotion to Grade B-19. We are of the view that it is correct that in proper cases if it is found by the Service Tribunal that the concerned civil servant was eligible for promotion and the post was vacant but he was not promoted without any fault on his part, the Service Tribunal can give ante-dated effect to the promotion of such a civil servant. However, in the instant case, as Sardar Muhammad Ashraf, appellant, has failed to challenge, the appointment and promotion orders of respondents Nos.4 and 5 before the Service Tribunal within the prescribed period of limitation, the Service Tribunal did not commit any illegality in refusing the relief to him by giving ante-dated effect to his promotion.
11. There is cross-appeal by respondent No,5 challenging the observation made by the Service Tribunal to consider the case of ante-dated promotion of Sardar Muhammad Ashraf, appellant, to Grade B-19 so that his grievance regarding seniority might be redressed. It may be stated that the contention of the learned counsel for the respondents that Sardar Muhammad Ashraf was considered when respondents Nos.4 and 5 were promoted to Grade B-19 is not sustainable; it is correct that his name was included in the working paper sent to the Selection Board but all the same nothing has been placed on the record to show as to whether he was in fact considered and on what grounds his promotion was not recommended. It appears that the A.C.Rs, of Sardar Muhammad Ashraf, appellant, were not favourable which were subsequently challenged by him before the competent authority who corrected the same and thereafter, he was promoted to Grade B-19 in the year 1994. Even if it is assumed for the sake of arguments that he was considered and superseded when respondents Nos.4 and 5 were promoted to Grade B-19, the fact remains that there is no bar for the Government to consider the case of ante-dated promotion of Sardar Muhammad Ashraf, appellant, under section 22 of the Civil Servants Act from an appropriate date for the redressal of his grievance. It may be observed that the learned counsel for respondent No,5 is not correct in arguing that the Service Tribunal had given any direction to the Government to do so; the Service Tribunal merely made an observation to that effect which is not tantamount to a 'direction'. Thus, it cannot be said that the Service Tribunal which enjoys the powers of a Civil Court is debarred from making such observations in appropriate cases. A reference may he made to a case reported as Inayatulah Chaudhry v. Azad Jammu and Kashmir Government 1990 PLC (C.S.)
598, wherein this Court found that one Muhammad Ashraf, who had joined the service as Assistant Engineer Electricity much earlier than others but he did not appear before the concerned Selection Board at the time of his transfer to the Electricity} Department and, thus, it was held by this Court that legally he could not be held senior to others but all the same it was observed that the Government can consider the case of his seniority in exercise of its powers vested in it under section 22 of the Civil Servants Act. The facts of the aforesaid case are identical to the present case. Thus, we are of the view that the Service Tribunal did not commit any error in making the aforesaid observation. Thus, we cannot subscribe to the arguments advanced on behalf of Sakhi- uz-Zaman, appellant, that the aforesaid observation could not be made by the Service Tribunal.
In the light of what has been stated above, finding no force in the above titled appeals, the same are hereby dismissed with no order as to the costs.