1995 PLP (C (PLC(CS))

Sher Zaman Awan for Respondents. RAJA BASHIR AHMAD KHAN (CHAIRMAN).‑‑‑This appeal has been directed against the Order No. 197‑200/92, dated 14‑3‑1992 of Revenue Secretary.

2. The brief facts of the case are that the appellant was appointed as Girdawar on 21‑4‑1984 in Settlement Department. The appellant has been performing his functions as Girdawar in the Settlement Organisation since then. For the purpose of adjustment the lien of the appellant as Girdawar was shifted in the Revenue Department against a vacant, post of Kanungo in Niayabat Leepa. The respondent No. 2 Muhammad Ismail challenged this order by way of an appeal before respondent No. 1 who while accepting the appeal of respondent No. 2 set aside the order of Commissioner to the extent of appellant Abdul Malik.

3. Respondents have filed their written objections and have denied the facts stated in the memorandum of appeal. The appellant has reiterated his stand in the replication.

4. The learned counsel for the parties have filed written arguments. We have gone through the written arguments and. have also perused the record.

5. The main reason which prevailed with the Secretary Revenue to set aside the order of Commissioner was that the respondent No. 2 was working as Office Kanungo on the post against which the lien of the appellant was shifted. The learned Secretary formed this view on the comments of the Commissioner submitted to the Secretary under No. Commissioner/940/92, dated 19‑2‑1992. The relevant portion of the comments of the Commissioner is reproduced below:‑‑

6. From the perusal of these comments it appears that the post against which the lien of the appellant was shifted was being occupied by the respondent No. 2 and, therefore, it was not available for the adjustment of the appellant. The Commissioner made the order on the basis of misstated fact and the Revenue Secretary rightly set aside the order of the Commissioner.

7. It is again an established fact that appellant was a Patwari in the Revenue Department and he was appointed as Girdawar in Settlement Organisation. The appointment was purely temporary and was made in a temporary organisation. His lien as Girdawar could not be shifted to the Department of Revenue without first safeguarding the rights of the persons entitled to be promoted against the post of Girdawar/Office Kanungo in accordance with the rules on the subject. The appellant has questioned the appointment of the respondent against the post of Office Kanungo and has also challenged the right of respondent No. 2 to hold that post. The appellant has previously not challenged the order of appointment of respondent. ‑No. 2 in regular proceedings and we cannot at this stage decide the legality of otherwise of the appointment of respondent No.

2. The plain fact is that respondent No. 2 was occupying the post against which the lien of the appellant was shifted for his adjustment. This could not have been possible without first granting the opportunity of hearing to respondent No. 2.

8. The result of the above facts is that there is no force in this appeal which is hereby dismissed without making any order as to the costs. H.B.T./262/SI.A Appeal dismissed.