1. SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).-This is a service appeal under section 4 of the Azad Jammu & Kashmir Service Tribunal Act, 1975 against the orders of the Deputy Commissioner, Mirpur (respondent No. 1) dated 1st July, 1973 and 31st May, 1973 whereby the respondents Nos. 2 and 3 were respectively promoted temporarily from the post of Patwari to that of Girdawar.
2. The facts, briefly stated, leading to this appeal are that the appellant and respondents Nos. 2 and 3 were employed as Patwaris in the Revenue Department of District Mirpur. The Deputy Commissioner, Mirpur, respondent No. 1 vide his order dated 1st July, 1973 temporarily promoted the respondent No. 2 as Girdawar against the vacancy caused by the promotion of one Muhammad Yousaf Girdawar to the post of Naib---Tehsildar and he again vide his order dated 31st May, 1973 filed the temporary vacancy of the post of Girdawar which fell vacant as a result of the promotion of one Syed Agha Hussain Shah Girdawar as Naib-Tehsildar. Feeling aggrieved by the aforementioned orders, the appellant preferred an appeal against these before Revenue Commissioner and the same remaining undecided he has come to this Tribunal with the prayer that by setting aside the impugned orders he be appointed as Girdawar.
3. The appellant in his memorandum of appeal has based his relief on the following grounds:-
(1) That the promotions of the respondents Nos. 2 and 3 have been made in violation of the provisions of Kashmir Service Regula--tions and other rules governing the service matters.
(2) That the appellant is academically and departmentally better qualified as compared to the promotee respondents and as such has preferential right of promotion over them.
(3) That the appellant is an approved candidate for the post of Girdawar and as such is entitled to promotion in preference to the said respondents who are not so approved candidates.
4. Muhammad Sadiq respondent No. 3 died during the pendency of the appeal. The other respondents have contested the appeal and have put in written objection in which it is alleged that the joint appeal against the two separate impugned orders is not maintainable under law and that is also barred by time. On merits it is contended that the promotee respondents were promoted on the basis of their admitted seniority over the appellants and that the appellant by virtue of being merely a candidate on the approved list of Girdawar has no preferential right of promotion over them as after having accepted the post of Patwari he is entitled to the appointment as Girdawar by way of promotion on the basis of being Patwari and not as an approved candidate for the post of Girdawar.
5. We have heard the learned counsel for the parties and have also thoroughly perused the record of the case. The learned counsel for the contesting respondents has raised a preliminary objection that the appeal in its present form is not maintainable as joint appeal against two separate impugned orders is not permissible in law. This objection of the learned counsel for the said respondents is quite forceful and, in our view, the present appeal is defective inasmuch as it suffers from mis-joinder of causes of action and of respondents. The orders impugned in this appeal have been made by the competent authority not only at different times but also in respect of two different persons and as such have given rise to separate and distinct causes of action to the appellant with the result that these cannot be brought under challenge in one single appeal as has been done by the appellant in the present appeal. The right course for the appellant was to file a separate appeal against each one of the impugned orders and his joint appeal against these two orders is not contemplated by Civil Procedure Code which is applicable to the proceedings before the Service Tribunal. But the appeal cannot be dismissed merely on the ground of mis-joinder of causes of action or respondents and in such a case an opportunity is to be given to the appellant to amend his appeal and confine it to any one of the respondents and causes of action. But in the circumstances of the present case we do not feel the necessity of giving the appellant an option of amending his appeal so as to continue it against any one of the promotee respondents as, in our view, it is liable to be dismissed even on other legal grounds as well as on merits.
6. After going through the impugned orders we have come to the conclusion that this appeal is not entertainable by this Tribunal. The right of appeal before the Service Tribunal is conferred on the aggrieved civil servant by section 4 of Azad Jammu & Kashmir Service Tribunal Act, 1975 (hereinafter referred to as an Act) the relevant portion of which reads as under :- "4. Appeal to Tribunal.-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."
7. From the plain reading of the above section it becomes abundantly clear that it is not each and every order of the competent authority which gives right of appeal before the Service Tribunal to the civil servant aggrieved by it but only such order is challengeable by way of appeal before it which besides adversely affecting the terms and condition of his service is final and conclusive. It means that finality and con--clusiveness of an order passed by the competent authority is a pre-- condition for the exercise of the jurisdiction by the Service Tribunal for the redress of the grievance of the civil servant arising therefrom and if the order lacks this essential character of finality, then it falls beyond its jurisdiction and scope to entertain an appeal against it notwithstand--ing the fact that it has resulted in the contravention of any of the terms and conditions of the service of any civil servant. In the present case the impugned orders cannot be held to be final with the result that they do not fall within the ambit of the section 4 of the Act so as to empower this Tribunal to take cognizance of the present appeal. By the impugned orders temporary appointments have been made to the post of Girdawar by temporary promotion of respondents Nos. 2 and 3 which could only be made under rule 14 of Kashmir Service Regulations Volume II, the relevant portion of which reads as follows :- "14. Temporary appointments. --(i) Where it is necessary in the public interest owing to an emergency which has arisen and could not have been foreseen to fill immediately a vacancy in a post borne on the cadre of service, class or category and the making of an appointment to much vacancy in accordance with these rules would involve undue delay, excessive expenditure or administrative inconvenience, the appointing authority may appoint a person, otherwise than in accordance with the said rules temporarily, until a person is appointed in accordance with the said rules but such temporary appointment shall in no case exceed 3 months on each occasion.
(ii) A person appointed under clause (i) shall be replaced as soon as possible by a member of the service or a candidate qualified and considered fit to hold the post under the said rules.
(iii) A person appointed under clause (i) shall not be regarded as a probationer in such service, class or category or be entitled by reason only of such appointment to any preferential claim to future appointment to such service, class or category."
8. The above-quoted provisions of the Kashmir Service Regulation would show that the temporary appointment is only a stop-gap arrangement made in an emergency to fill immediately a vacancy with a view to avoiding undue delay, excessive expenditure and administrative incon-- venience involved in making an appointment in accordance with the rules which is liable to be terminated on the appointment of qualified person on regular basis. Moreover such an appointment cannot be made for a period exceeding 3 months in any case on each occasion and the temporary appointee has no preferential claim to future substantive appointment to such post by reason of his temporary appointment. Thus in view of the above provision of Kashmir Service Regulations applicable at the relevant time there remains no doubt that an order of temporary pro--motion and appointment is not a final order and a further order is required to be made for filling the vacancy on substantive and permanent basis. This being the case the impugned orders of temporary promotions and of appointments not being final do not give rise to any cause of action to the appellant so as to entitle him to approach this Tribunal for the redress of his grievances arising out of them and this Tribunal lacks the jurisdiction to hear the-present appeal.
9. Moreover this appeal is incompe--tent as being hit by proviso B to section 4 of the Act which creates a bar to the jurisdiction of this Tribunal to hear an appeal against an order or decision of a departmental authority determining the fitness or other--wise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade.
10. Apart from the above legal position the appellant has no case on merits as well. The appellant in his memorandum of appeal has taken exception to the impugned orders on the ground that the same have been and are in violation of the rules of Kashmir Service Regulations and other regulations governing service matters but he has not been able to mention or pinpoint any such rules which have been infringed by the competent authority by passing the orders of promotions of the respondents Nos. 2 and 3. During the arguments, however, the learned counsel for the appellant has contended that the impugned orders have been made in contravention of the provisions of the Punjab Kanungo Service Rules, 1935, a copy of which has also been placed on the record. To elucidate his point he has argued that under the aforementioned service rules the appointment to the post of Girdawar can only be made of a person who has passed the Matriculation examination as well as the Kanungo examination and since the promotee respondents Nos. 2 and 3 have not passed the Matriculation examination and respondent No. 2 has also not passed the prescribed Kanungo examination they could no be promoted to the posts of Girdawar as has been done under the impugned orders. We do not find any merit in this contention of the learned counsel for the appellant because in the first place Punjab Kanungo Service Rules, 1935 are not applicable in Azad Kashmir. The Azad Kashmir Govern--ment vide its Resolution No. 247 has adapted the Punjab Land Revenue Act as was in force in the West Punjab at the relevant time in year 1948 but by mere adaptation of the said Act the Punjab Kanungo Service Rules, 1935 made by the Punjab Government did not ipso facto become applicable in Azad Kashmir. No doubt, rule 28 of the Punjab Land Revenue Act as made applicable in Azad Kashmir empowers the Govern--ment to make rules to regulate the appointments, duties, employments, punishment, suspension and removal of Kanungos and other village officers but in exercise of the above powers neither such rules have been made by the Government so far nor it has adapted the Punjab Kanungo Service Rules, 1935. In this view of the matter the Punjab Kanungo Service Rules, 1935 relied upon by the learned counsel for the appellant in support of the allegations that impugned promotions have been made in violation of service rules have no relevance and cannot be taken into consideration while deciding this appeal. Even if for the sake of arguments it is assumed that Punjab Kanungo Service Rules, 1935 are applicable in Azad Kashmir there is nothing in these rules which render any of the promotee respondent ineligible for promotions to that post of Girdawar. In these rules no specific academic qualification is pres--cribed as a condition for eligibility for promotion of the Patwari to the post of Girdawar. Rule 2 (i) of the said Service Rules only envisages that no person other than the Patwari shall be appointed directly to the service unless he has passed the Matriculation examination of a recognised University in Arts or Science or the Senior Cambridge local examination and clause (ii) of the same rule lays down that no Patwari shall be appointed as Kanungo unless he has put in at least 3 years approved service as Patwari and has passed the prescribed Kanungo examination. From the perusal of the above rules it is evident that clause (ii) is applicable only to the direct recruitment to the post of Kanungo and for a promotion from the post of Patwari to that of Girdawar the conditions required to be fulfilled are that the Patwari has passed the prescribed Kanungo examination and has also 3 years approved service to his credit. Both the promotee respon--dents fulfilled the conditions referred to above as both had passed the Kanungo examination and had more than 3 years service as- approved Patwaris to their credit at the time of their promotions. The appellant in his memorandum of appeal has taken the stand that the respondent No. 2 has not passed the patwar examination but this allegation is not factually correct. The said respondent in his written objection has alleged to have passed the patwar examination which fact is fully supported by the entries of the copy of seniority register of Patwaris of Distrit Mirpur in respect of year 1977 filed by the Deputy Commis--sioner, Mirpur along with his written objections which is on page 49 of the file. According to these entries of the said register respondent No. 2 had passed the Patwar examination on 6th August, 1949 and thus ful-- filled the condition of passing the Kanungo examination as Patwari is also included the definition of Kanungo as given in Punjab Kanungo Service Rules, 1935. Thus the appellant's contention that the respondents were not eligible for promotion under Punjab Kanungo Service Rules, 1935 is not sustainable. The learned counsel for the appellant has also urged that the appellant being graduate is better qualified than the promotee respondents and as such has preferential right to promotion m com--parison to them who are not even Matriculates. He has not been able to show any Service Rules in force in Azad Kashmir which entitle the appellant to preferential claim to promotion over the said respondents by reason of possessing comparatively higher academic qualification. The mere comparatively higher academic qualification, in the absence of rules to the contrary, does not give any preferential right of promotion, to a civil servant over those civil servants in the same service or class who although senior to him possess less qualification. Even in cases where promotion under rules is required to be made strictly on the basis of merit the mere academic qualification is not the sole criteria for determi--nation of comparative merits of the candidates for promotion. The qualification is one of the elements to be considered is assessing the merits which also includes experience, seniority, competence, rectitude and antecedent service record. None of these constituents is less important than the academic qualification in the assessm ent of suit--ability or merits for promotion to the higher post. The promotee respon--dents were admittedly senior to the appellant in the cadre of Patwar is inasmuch as they joined service as Patwaris on 23rd April, 1948 and 19th December, 1949 respectively whereas appellant was appointed Patwari much later in the year 1962. The said respondents were also trained Patwaris having passed the patwar examination and thus on account of their long experience and requisite training had right to, pro--motion notwithstanding the fact that the appellant possessed the higher academic qualification as compared to them, It cannot be said that the appellant possesses better ability and merit merely by virtue of higher academic qualification and as compared to respondents. According to the nature of duties of the Patwaris a fairless qualified person can be more efficient Patwari because of his experience and aptitude for the work as compared to one who is better qualified but comparatively in--experienced.
11. Similarly the contention of the learned counsel for the appellant that appellant being an approved candidate for the post of Girdawar has a preferential right to promotion as against promotee respondents is also devoid of any force. It is not a case of direct appointment to the post of Girdawar where the approved candidate may have preference over the one who is not approved but is a case of promotion from amongst the serving Patwaris. Here the appellant was to be considered for promo--tion in his capacity as Patwari along with other Patwaris and the compe-- tent authority was within its competence to give promotion to any one of them under rules governing such promotions.
12. The mere fact of the appellant being an approved candidate for the post of Girdawar before his appointment as Patwari does not in our view give him any edge over other Patwaris in the matter of promotion as such no rule has been shown to exist and in the absence of which no discrimination is permissible between a Patwari who also happened to be an approved candidate for the post of Girdawar before his appointment and one who was not so approved while making the promotion to the post of Girdawar.
13. For the foregoing reasons, the appeal fails both on legal grounds as well as on merits which is accordingly dismissed with no order as to costs. The parties may be informed of this order.
14. KH. GHULAM QADIR (MEMBER).-I agree.