' KHAWAJA MUHAMMAD SAEED, J.---This appeal, with the leave of the Court, is directed against the judgment of the Service Tribunal passed on 1-9-2001.
2. Relevant facts, briefly stated, are that the appellant was initially appointed as junior teachress and thereafter was promoted as senior teachress in B-15 on 23-5-1991 by the Divisional Director Schools. This order was amended under the directions of Divisional Director Schools and the promotion order of the appellant was given effect from 8-5-1991 instead of 23-5-1991.
3. The order of promotion was again amended by the Divisional Director Schools vide his order dated 16-9-1991 and the following words were added:-- {{URDU TEXT}}
4. One Nadeem Ahmed Mir moved a complaint before the Secretary Education that the promotion of the appellant was made contrary to the spirit of the rules. The Secretary Education vide his order dated 1-5-2000 set aside the promotion order of the appellant by holding that the same was obtained without the recommendations of the Selection Committee thus in his wisdom was against the provisions of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 (hereinafter to be referred as the Rules of 1977). The order of the Secretary Education was challenged by the appellant before the Service Tribunal on 10-5-2000.
She also moved an application for the issuance of status quo which was issued by the Service Tribunal vide its order dated 15-5-2000. The officials of the Education Department were given numerous opportunities by the Service Tribunal to file their written statement but the same was not filed. However the standing counsel of the Education Department was allowed to argue the case.
The Service Tribunal summoned the original file and finally dismissed the appeal of the appellant inter alia on three grounds:--
(i) that she should have been promoted as Senior Teachress upon the recommendations of the Selection Committee as provided under Rule 4(6)(i) and (ii) of the Rules of 1977 but she was not recommended by any Selection Committee;
(ii) that even though her promotion has been shown on the recommendations of the Selection Committee through corrigendum dated 16-9-1991 but the Service Tribunal despite search could not find any such record of the Selection Committee before whom her credentials were submitted for its considerations and she was recommended for promotion by such a Selection Committee; and
(iii) that as the promotion was granted to the appellant through illegal process, therefore, while placing reliance upon the judgment of this Court in a case titled Secretary for Prime Minister v.
Muhammad Aslam 2000 PLC (C.S.) 155, it was held that promotion order was passed in violation of the rules, therefore, it was not necessary to issue her show-cause notice and provide her the right of hearing before setting aside the same.
' This judgment of the Service Tribunal has been assailed before this Court in the present appeal.
5. Mr. M. Tabassum Aftab Alvi, the learned Counsel for the appellant, argued that the appellant was promoted as senior teachress on the basis of the recommendations of the Selection Committee by the Divisional Director Schools from 8-5-1991. The appellant, therefore, was not only enjoying the status of this senior post but also drawing the emoluments of the post. The Secretary Education was, therefore, legally not competent to disturb her promotion order after the lapse of 9 years period. In support of his contention he placed reliance upon the cases titled Naseebullah v. Mumtaz Khan and others [1993 SCR 44] and Ch. Muhammad Saeed v. Azad Government of the State of Jammu and Kashmir and others (1990 PLC (CS) 354), wherein it is laid down that if suit or appeal is brought beyond the prescribed period of limitation it is for the party seeking the relief to allege and prove that the suit or appeal etc, has been filed within the period of limitation. It is further laid down in these authorities that bar of limitation cannot be ignored in all cases.
6. He also challenged the status of Nadeem Ahmed Mir who was not an employee of the Education Department, as such, could not be termed as an aggrieved party. According to the learned counsel, only an aggrieved person was justified in law to file an appeal before the Secretary Eduction as under the Azad Jammu and Kashmir Civil Servants. (Appeal) Rules, 1991 no stranger can file an appeal in respect of service matters against any civil servant. The learned counsel further argued that as the promotion order was acted upon and the appellant in consequence of that promotion order also received the emoluments of the senior post, therefore, without show- cause notice coupled with opportunity of being heard the Secretary Education was not justified in law to revert her as junior teachress after a period of. 8 years, II months and 8 days. The Service Tribunal failed to appreciate these legal grounds, therefore, the judgment of the Service Tribunal alongwith the order of the Secretary Education are liable to be set aside.
7. While controverting the arguments of the learned counsel for the appellant, Raja Muhammad Hanif Khan, the learned counsel for the respondents, argued that the promotion was secured by the appellant contrary to the rules from the Divisional Director Schools who was not legally competent to allow her promotion. According to the learned counsel, on 12-5-1991 the post of senior teachress was upgraded from B-15 to B-16 and on account of this reason the promotion could be made under the provisions of the relevant law on the recommendations of the Selection Board by the Minister Incharge, whereas in the instant case undue favour was shown by the Divisional Director Schools who promoted the appellant illegally on 23-5-1991 and then in order to provide protection his illegal order he issued a corrigendum on 16-9-1991 through which the following words were added:-- ' Later on when he became aware that promotion was illegally given by him on 23-5-1991 as by that date the posts of senior teachress were upgraded in B-16, therefore, the sanction could be accorded on the recommendations of the Selection Board by the Minister Incharge; he gave retrospective effect to his initial order dated 23-5-1991, whereby the appellant was promoted from junior teachress to senior teachress. In these circumstances, according to the learned counsel, an illegal promotee under law was not required to be given a show-cause notice. The reliance was placed upon a case titled Azad Government of the State of Jammu and Kashmir through its Chief Secretary. Muzaffarbad and 2 others v. Ashfaque Ahmed Hashmi, Press and Publication Officer Prime Minister Secretariat Muzaffarbad (PLJ 2000 SC (AJ&K) 2961. He further argued that illegal promotion cannot be restored. The reliance on this point was also placed upon the above authority. According to him, the appellant was not considered by the Selection Committee, as there is no such record available with the Education Department. In fact her order of promotion was the result of colourful exercise of jurisdiction on the part of Divisional Director Schools who by that time had even lost his competence to issue orders which he repeatedly issued in order to extend undue benefit to the appellant.
8. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. Admittedly the appellant was Junior Teachress when under the order of Divisional Director Schools she was promoted as Senior Teachress. In order to give her promotion order a legal shape subsequently a corrigendum was issued by the Assistant Director Schools on 16-9-1991 under the direction of the Divisional Director Schools through which in her promotion order the words {{URDU TEXT}} were added. By the time the appellant was appointed, the Divisional Director Schools had lost the competence to give promotion to her as on 12-5-1991 the posts of junior teachress were upgraded from B-15 to B-16. On account of this reason their promotion could be effected on the basis of the recommendations of the Selection Board by the Minister Incharge. The case of the appellant was never sent to the Selection Board alongwith other eligible candidates for its recommendations nor the Minister Incharge had approved any such recommendations, therefore, the illegal exercise of jurisdiction on the part of Divisional Director Schools has not vested any legal right to the appellant. The Service Tribunal summoned the record of the Selection Committee but no such record was available with the Education Department. Even if there would have been any recommendations of the Selection Committee, those would have no legal importance because Selection Committee can recommend for promotion only such employees who are serving in various departments of the Government below B-15. Keeping in view the service laws in force in Azad Jammu and Kashmir the promotion order without the recommendations of the Selections Committee or Selection Board is illegal and confers no right upon the promotee. Rule 9 of the Rules of 1977 may be referred in support of this finding wherein it has been made obligatory for the competent authority to make appointment by promotion or transfer to post in various grades upon the recommendations of the appropriate Committee or Board. As the suitability of the appellant for the post of senior teachress was not idged by the Selection Board, nor was she even recommended by the Selection Board, therefore, the whole process initiated by the Divisional Director Schools despite two correigendums issued by him did not confer any right upon her. She enjoyed the status and received emoluments of the higher post in the absence of legal order passed by the competent authority in her favour.
9. We agree that the right of appeal in disputes relating to the terms and conditions of service of civil servants through departmental remedies can be availed only by an aggrieved civil servant.
However, in the present case Nadeem Ahmed Mir had not moved an appeal before the Secretary Education rather he moved complaint through an application before him which convinced the Secretary Education that promotion order of the appellant was contrary to the law and passed by an authority having no jurisdictional competence. Therefore, he being the Head of the Department recalled the illegal order and before doing so he was not legally obliged to issue any show-cause notice to the appellant. If an order is passed by a competent authority, even if it suffers from other lacunas or legal defects, it cannot deprive of a civil servant any privilege, right or other benefit relating to the terms and conditions of his service without providing such civil servant the right of audience and show-cause notice. But in the present case, as said earlier, the order of promotion was passed in colourful exercise of jurisdiction by the Divisional Director Schools having no jurisdictional competence, therefore, the Secretary Education was not legally bound to issue show- cause notice to the appellant. The Service Tribunal in the circumstances of the case rightly upheld the order of the Secretary Education and dismissed the appeal of the appellant.
' In view of above, this appeal having no force is dismissed with costs.