1981 PLP (C (PLC(CS))

M. SALEEM CHAUDHRY (CHAIRMAN).‑In this case the appellant is aggrieved by the order of Punjab Road Transport Board dated 31.1‑1977 vide which the order of the Chairman, Punjab Road Transport Board dated 12‑1‑1977 allowing promotion to the appellant in N. P. S. 18 was withdrawn and the appellant was reverted to N. P. S. 17.

2. Briefly the facts of the case are that the appellant was initially recruited as Clerk on 13‑12‑1941 in the Punjab Transport Department under the Govern ment of Punjab. On the creation of Punjab Board Transport Corporation (now Punjab Road Transport Board) he was transferred in the aforesaid Corporation. In the year 1966 he was working as Store Superintendent and in March, 1966 he was promoted as Senior Stores Officer by the order of the West Pakistan Road Transport Board against the newly‑created post. On 18‑11‑1968 he alongwith respondent No. 3 was promoted as stores Officer in the scale of Rs. 450,50,1.000. In the year 1971 one Maqbool Ahmed Khan junior to the appellant was promoted as District Manager in N. P. S. No.

18. The appellant represented against the same but it appears that his representation was rejected on the ground that he belonged to the Stores cadre. In the year 1974 a Mobile Enquiry Team of the Punjab R. T. B. was created in which the appellant who at the relevant time was working as Store Officer was also appointed its Member. This team as claimed by the appellant detected a fraud and embezzlement in the funds of the Board to the tune of millions of rupees. In the year 1976 three more posts were created in the Store cadre under the Board and one of the post viz. Controller Stores was in N. P. S. No,

18. Since the appellant has been making representations for his promotion to N. P. S. Grade 18 prior to 1976 as District Manager, which was rejected on the plea that he belonged to stores cader, therefore, his case was recommended by the Secretary of the Board for promotion as Controller of Stores. Since his claim for promotion to Grade 18 was not accepted by the Managing Director, consequently the appellant made various representations to the Chairman of the Board which were eventually accepted by the Chairman on 12‑1‑1977 and he was ordered to be posted as Controller of Stores. However, the matter appears to have been reconsidered by the Board in its 50th meeting held on 31‑1‑1977. The Board resolved that the Chairman had no powers to accept the appeal and the order dated 12‑1‑1977 was accordingly annulled by the Board. The appellant filed an Appeal No. 87/218 of 1977 against the aforesaid order and also preferred an appeal to the Transport Department, Government of the Punjab against the same. The appeal to the Government was accepted by the Secretary Transport on 19‑9‑1979 according to which the order dated 12‑1‑1977 was restored. After acceptance of the appeal by the Secretary Transport. Government of Punjab the appeal pending before this Tribunal was disposed of as infructuous on 1‑10‑1979. The Transport Board, however, did not accept the decision of the Punjab Government on the plea that the Provincial Government did not have the powers to entertain and accept the appeal against the orders of the Board. Consequently the present application was moved before this Tribunal.

3. We have perused the record and heard the parties.

4. The contention of the Department was that the Road Transport Board was an Autonomous Body and the Government could entertain and hear the appeal against the order of the Road Transport Board only if it was so provided in any of the Rules viz. Punjab Road Transport Board Rules, 1972 as promulgated on i6‑11‑1972. The learned counsel for the Board contended that the only provision for appeal was contained under rule 7(6) which was as follows: ‑

7. Appointment of officers and servants of Board.‑‑(1) The Board shall appoint principal officers specified in rule 9 with the prior approval of Government. (6) In respect of any order passed under rule, an appeal shall lie to‑ (a) The Managing Director of the Board when the order is made by any officer subordinate to him ; (b) The Chairman, when the order is made by the Managing Director ; and (c) The Board, when the order is made by the Chairman ; provided that in the case of officers mentioned in sub‑rule (1), an appeal against the order of the Board shall lie to the Government." He further submitted that the powers of the Government to make the appointment was limited only to the officers specified under rule 9 namely, Chief Accounts Officer, Chief Technical Officer and Chief Traffic Officer. Thus the Government had no powers with regard to the appointment of the officers of the Board or to hear the appeal against the orders of the Board in such cases. The Department submitted that the proposition is well settled that the right of appeal is the creative of statute. In the absence of any specific provision the contention of the Board that the Government has not been empowered to entertain any appeal against the order of the Board is unassailable. Thus we accept the plea advanced by the Punjab Road Transport Board that the order passed by the Secretary Transport Department is of no legal effect.

5. However, the question still arises as to whether the orders dated 12‑1‑1977 passed by the Chairman of Board was without jurisdiction and for that reason the order dated 31‑1‑1977 could be maintained. As a preliminary objection to the appeal the learned counsel for the Board raised the issue as .to the jurisdiction of this Tribunal to reopen the case after passing the order dated 1‑10‑1979 in Appeal No. 86/218 of 1977. According to him this Tribunal had‑ no powers to review its own orders on merit. However during the course of arguments he candidly conceded and in our view rightly that since the previous orders dated 1‑10‑1979 had not been passed on merits being disposed of as infructuous) therefore there was no question of review and thus this Tribunal had the powers to decide the appeal on merits. The learned counsel however argued that since the powers of the Chairman of the Punjab R. T. B. to hear the appeal were limited only to those cases where Managing Director of the Board had passed the orders envisaged by rule 7(6) of the Punjab Road Transport Board Rules, 1972. He also submitted the view was based upon the provice of pay Department. Therefore the Chairman could not entertain and accept appeal where the order was yet to be passed. In this case the M. D. did not pass any order against the appellant till 12‑1‑1977. 1t was submitted that it was on that premises that the Chairman orders dated 12‑1‑1977 was upset by the Board vide impugned order dated 31‑1‑1977. Since no provision existed under the rules empowering the Chairman to pass the orders in question, therefore the impugned order had been validly set aside by the Board, and the action taken by the Board merits to be maintained.

6. On the other hand the learned counsel for, the appellant argued that the appellant case for promotion to N. P. S. 18 was duly considered and rejected by the M. D. of the Board on the ground that he being a Government servant was not the employee of the Board. It was against this decision that the appellant made representations to the Chairman which were accepted by him on 12.1‑1977. The learned counsel for the further pointed out that the Board itself had delegated their powers vide notification dated 1‑3‑1974 (effective from 1‑1‑1974) issued under rule 14 of the Punjab R. T. B. Rules, 1972 item 7 of which reads as follows: ‑ In exercise of the powers vesting in them under rule 14 of Punjab Road Transport Board Rules, 1972, the Board are pleased to delegate the powers as presently appear in the following pages: ‑ (7) Unless otherwise provided by a special order a higher authority may exercise the powers delegated to an authority subordinate to it." It was submitted that since the Managing Director is subordinate to the Chairman, therefore even otherwise the Chairman had the powers to pass the impugned order.

6. After hearing both the parties, we arc clearly of the view that the Chairman had the powers to pass the order dated 12‑1‑1977. In the first instance the appeal was duly provided against the order of the M. D. It is evident that the appellant approached the Chairman only when his claim to promotion in N. P. S. 18 was refused by the M. D. In any case item 7 of the Delegation Power clearly makes provision empowering the Chairman to pass the order in question. Under the 1972 Rules, the appeal against the order passed by the M. D. was competent before the Chairman therefore it was legitimate to hold that M. D. is a subordinate to Chairman in the hierarchy of the Transport Board. We do not feel impressed by the objection raised by the respondent that clause 7 of the Delegation of Powers Notification was a mere guideline to the Chairman. The Delegation order did not make any provision in that behalf. Even otherwise rule 14 clearly related to the Delegation of Powers and the order in question has been issued in pursuance of the aforesaid order. We are therefore constrained to hold that clause 7 clearly provided for' delegation of powers of Board to the Chairman. The advice of the law Department was not produced before us, we are therefore unable to express any opinion about the same, Consequently the appeal succeeds and the order dated 31‑1‑1977 is set aside and. the order dated 12‑1‑1977 is restored with all consequential benefits.