1991 PLP (C (PLC(CS))

RAJA MUHAMMAD ASHRAF KAYANI (MEMBER).--Raja Muhammad Azam Khan, Girdawar, has filed this appeal under section 4 of the Azad Jammu and Kashmir Service Tribunal Act, 1975 wherein the respondents Nos. 1 to 5 have been impleaded.

2. By virtue of this appeal, the appellant has prayed that the order No. Revenue (A-8)/142/3583-87, dated 4-6-1987 passed by the respondent No.4 (Secretary Revenue) be set aside whereby the order dated 11-2-1987, passed by the Revenue Commissioner in a service appeal, preferred by the present appellant, was set aside.

3. Brief facts of the case are that the appellant was appointed as Patwari on 26-1-1968, whereas the respondents Nos. 1 to 3 were also appointed in the same service and in the same cadre on 5-12-1971, and 7-1-1970 and 17-11-1975 respectively. Respondents Nos.1 to 3 were promoted as Girdawars by Settlement Officer Poonch vide his Order Nos. 444-47/81, dated 23-5-1981 and 867-70/82, dated 23-6-1982.

4. Feeling aggrieved by these promotion orders, the appellant made an appeal before the learned Revenue Commissioner. The appellant was declared senior to the respondents vide order dated 11-2-1987 and the file was remanded to the Settlement Officer with the direction that the seniority of the incumbents may be determined de novo. This order was called into question by the respondent No. 1 before respondent No.4, and was set aside through the impugned order and hence this appeal.

5. It was submitted by the learned counsel for the appellant that the impugned order was passed without jurisdiction. The order passed by the Revenue Commissioner was final and under sub-rule(3) of rule 7 of the Azad Jammu and Kashmir Civil Servants (Appeals) Rules, 1982 (hereinafter referred to as the Rules), no appeal could be preferred against the final order. On the contrary, it was contended that the appellant was removed out of the service on account of misconduct and inefficiency on 24-12-1970 and was reinstated into the service on 5-5-1972. The period of termination of service was treated as a period spent on leave without pay.

6. We have heard the parties and gone through the record. We are of the considered view that the impugned order was passed without jurisdiction. Under rule 4 of the Rules, only one appeal is provided to invoke the jurisdiction of the appellate authority against an order passed by an authority. It would be expedient to reproduce the relevant part of rule 4 of the Rules, which reads:-- 4. (1) a civil servant shall be entitled to appeal to the appellate authority from an order passed by an authority which:-- (a) alters to his disadvantage, his conditions of service, pay, allowances or pension; or (b) interprets to his disadvantage the provisions of any rules whereby his conditions of service pay, allowances or pension are regulated; or

7. In the present case, the Settlement Officer being the appointing authority of the incumbents was the authority and the Revenue Commissioner was the appellant authority. The order passed by the Revenue Commissioner on the service appeal preferred by the appellant against the original order made by the Settlement Officer was final under sub-rule (3) of the rule 7 of the Rules. The said sub rule reads as:-- (3) Any order passed on appeal shall be final except otherwise provided under these rules. It would be relevant to express that no provision of second appeal is provided in the Rules, therefore, the impugned order is held to be ab initio void, because it has been made without jurisdiction. Under the Rules, only one appeal is allowed before an appellate authority against an order passed by the authority. In the circumstances respondent No. 4 (Secretary Revenue) had no powers to pass the impugned order.

8. For the foregoing reasons we are constrained to accept the appeal and therefore, set aside the impugned order. Parties are left to bear their own costs. The file shall be consigned to the record room. M.Y.H./94/Sr. A. Appeal allowed.