SHER AHMAD Versus

ORDER

1. This is an appeal filed by Mr. Sher Ahmad, Assistant Store Keeper, against his reversion, vide orders dated 11‑10‑1972, 12‑8‑1974, and 13‑6‑1974.

2. The appellant joined as Dispenser under the Ministry of Kashmir Affairs in 1957, and was later on transferred to the Central Government Hospital and promoted as Assistant Storekeeper w. e. f. 16‑8‑1972, vide order dated 18/10‑8‑1972. The appellant was deputed for Haj Duty alongwith the Medical Reinforcement Party. In his place, the respondent No. 3 Mr. Mohammad Yaqub, was promoted as A. S. K. On return from Haj Duty, the appellant resumed duty as A. S. K. on 24‑3‑1973. On 27‑3‑1973, the appellant was delivered an Office Order dated 11‑10‑1972, whereby his promotion as A. S. K. was cancelled and the respondent No. 3 stood promoted as A. S. K. The appellant represented against this reversion to the Medical Superintendent, Polyclinic, but without any response.

3. Vide Order dated 10‑9‑1973, the appellant was again promoted as A. S. K. w. e. f. 29‑9‑1973 in place of respondent 3, who had proceeded on Haj Duty, with the conditions that‑He will automatically be reverted to his original post on joining of respondent 3." Accordingly, he reverted as Dispenser from 28‑3‑1973 to 22‑8‑1973, but the appellant has been actually working as A. S. K. from 29‑8‑1973 till todate, in spite of his reversion to the post of Dispenser. The appellant submitted representations to respondent No. 2‑Medical Superin tendent, Polyclinic, and final appeal with the appellate authority was sub mitted on 30‑12‑1974, but without any response.

4. The appellant has, therefore, alleged that the respondent No. 2 was not the competent authority to revert him from the post of A. S. K. whereas he is physically working as A. S. K. and the charge of the post of Dispenser was never given to him. All the respondents Nos. 3 to 8 rank junior to the appellant but some of them were promoted though they did not fulfil the requisite conditions as laid down under the rules for direct recruitment, besides being unqualified Dispensers.

5. On joining of respondent No. 3, Mr. Yaqub from Haj duty, six posts of A. S. Ks. were available, but the Departmental Promotion Committee did not select the appellant for promotion though he could have been adjusted against one of the existing six posts, being a confirmed and a qualified Dispenser.

6. The appellant has, therefore, appealed to the Tribunal to set aside the orders of his reversion and also to pay arrears of pay for the period he worked as A. S. K.

7. The learned counsel for State argued that the appellant joined the service under the Government of Azad Kashmir on 4‑7‑1957, and was later on selected for appointment in the Central Government Hospital under the Government of Pakistan. Therefore, the service rendered under the Govern ment of Azad Kashmir cannot be counted for the purpose of seniority in terms of para. 6 of the Establishment Division Office Memo. No. 6/15/48 M. E., dated 31‑3‑1961, read with Establishment Division O. M. No. 6/39/57 M. E., dated 15‑3‑1958. The respondent No. 3 joined the Jinnah Post graduate Medical Centre, Karachi on 24‑2‑1959, and was transferred to Central Government Hospital in October 1959. Besides, he is confirmed w. e. f. 1‑3‑1960.

8. The appellant was promoted w. e. f. 16‑8‑1972 as A. S. K. due to some misunderstanding but was reverted later on, since the respondent No. 3, senior to the appellant, was actually promoted w. e. f. 1‑6‑1972. Being the next junior to respondent No. 3 who had proceeded on Haj Duty, the appellant was promoted as A. S. K. w. e. f. 29‑8‑1973, against the resultant vacancy of respondent No. 3. The counsel for State however admitted that the appellant should have been paid the salary of the post of A. S. K. for the period he was actually promoted.

9. He further refuted the contention of the appellant with regard to promo tion of respondents Nos. 4 to 8. The Departmental Promotion Committee did consider the name of the appellant alongwith other candidates and selected the individuals who fulfilled the requisite qualification, i. e. the Matriculation Certificate, and since the appellant was not a Matriculate, his case could not be considered for promotion to the post of A. S. K. by the D. P. C. The respondent No. 9 was selected as a direct recruit against the "direct recruitment" quota.

10. We have heard the arguments.

11. The appellant has not been able to produce any documentary evidence which could prove that he was working under the Ministry of Kashmir Affairs, and not the Government of Azad Kashmir. Being an employee under Government of Azad Kashmir, he cannot be given the benefit of his previous service towards seniority on transfer to the Central Government Hospital under the Government of Pakistan. His claim for seniority over responder No. 3, who joined earlier, is, therefore, not tenable.

12. As regards the reversion of the appellant, it is an admitted fact that h was promoted in a resultant vacancy with the clear condition that "he will automatically be reverted to his original post on joining of the respondent No. 3". Therefore, the appellant having accepted these terms and conditions of promotion, cannot now resile from that position.

13. As to the promotion of respondents 4 to 9, the appellant was duly consi dered for the post of A. S. K. by the Departmental Promotion Committee. Since he did not fulfil the requisite educational qualifications, he could not be selected . . . . it should have been filed within one month after expiry of ninety days of filing of the departmental appeal. There being no condonation application, the delay goes unexplained.

14. Both on the facts of the facts and law, the appeal is not maintainable, and is dismissed.

15. Pay for the period for which the appellant was promoted and worked as A. S. K. should be paid to the appellant.

16. Appeal dismissed.