1980 PLP 400s (PLC(CS))

(i) That the matter relates to the period prior to 1969 and the Tribunal is barred under proviso 'c' to section 4 of the Service Tribunal Act, 1975 to take cognizance of the matter. (ii) That the appeal was time barred at the time of its representation after due completion. (iii) That no definite order appealed against before the Chief Executive has been produced in the Tribunal and as such no appeal lies. We have heard the arguments advanced by the learned counsel for the parties and have also gone through the record of this appeal. The nut shell of this appeal is that the appellant who was directly recruited as Assistant Sub‑Inspector felt aggrieved by the order of Inspector‑General of Police dated 18‑7‑1960 whereby the appellant was reverted to the post of Head Constable at his own option. The record (personal file of appellant) shows that the appellant presented a review petition against Order No. 435 dated 18‑7‑1960 (on page 22 of personal file) before I. G. P. which was filed by the then I. G. P. on 20‑12‑1960 as a letter of I. G. P. No. 5633 dated 6‑7‑1964 on page 24 of personal file of appellant addressed to S. S. P. Muzaffarabad reveals. Later the appellant filed a petition before the President of Azad Jammu & Kashmir on 25‑6‑1970 challenging various orders passed against him at different times including the order of reversion dated 18‑7‑1960. The record does not reveal anything as to what fate this petition met. Then on 5‑7‑1975 the appellant seems to have filed another petition before the then Prime Minister requesting that his petition/appeal dated 26‑6‑1970 be called up and disposed of doing justice to the appellant whereupon the Prime Minister made over the case to his Legal Advisor for report and ultimately agreeing with the views of Legal Advisor passed the order of promotion of the appellant to the post of D. S. P. which order was cancelled by the successor Government namely, Chief Executive of Azad Jammu & Kashmir on the request and recommendations of I. G. P. and the petition/appeal filed before the Government was rejected vide order dated 16‑2‑1978 which order only is now the subject matter of this appeal. Now in the light of these facts and the objections raised on behalf of respondents in their written objections and arguments the following important legal points need to be determined for the proper disposal of the appeal. (a) Whether appeal against order dated 16‑2‑1978 is competent and tenable without challenging the first order of reversion of the appellant passed by I. G. P. on 18‑7‑1960. (b) If by implication or for arguments sake it be assumed that original order of reversion dated 18‑7‑1960 is also made subject of this appeal whether such an order passed prior to the year 1969 is appealable in the face of proviso (c) to section 4 of the Service Tribunals Act, 1975. We have given our serious thought and attention to these legal questions and our view and findings is in negative for the following reasons ‑‑ Under section 4 of the Service Tribunals Act, 1975 an aggrieved civil servant has got a right of appeal against an order, whether original or appellate, made by a competent authority but this right, however, is made subject to the exercise of right of appeal, review or representa tion as the case under rules may be. For the purpose of reference section 4 of the S. T. Act alongwith proviso (b) and (c) which only are relevant for the decision of this appeal are reproduced below ;- "Section

4. Appeals to Tribunal.‑Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service including disciplinary matter may, within thirty days of tree com munication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal: Provided that‑‑ (a) ..................... (b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining‑ (i) the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade ; or (ii) the quantum of departmental punishment or penalty imposed on civil servant as a result of a departmental inquiry except where the penalty imposed is dismissal, removal, reduction in rank or compulsory retirement from service ; and (c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the first July, 1969. This, in other words, clearly means that it is only an original or appellate order of a competent authority against which a right of appeal is bestowed upon an aggrieved civil servant and no other order passed on review or repre sentation can be made basis of appeal under section 4 of the Service Tribunal Act. As a result of this clear legal position an order passed by a competent authority in exercise of the powers of review cannot independently be made basis of appeal before the Service Tribunal without challenging in appeal tire original or appellate order of the competent authority from which order the civil servant originally felt aggrieved. In the appeal in hand the appellant has taken exceptions by way of this appeal to only the order dated 16‑2‑1978 which purports to have been passed on review (wrongly termed as appeal in the impugned order) filed by the appellant against the original order of his reversion dated 18‑7‑1960 whereas the appellant under law as laid down in section 4 of the Service Tribunals Act was bound to file an appeal against the order dated 18‑7‑1960 which caused grievance to the appellant so far a his rights of service were concerned. Unfortunately the appellant failed to choose the right course and thus missed the track with the result that the appeal against the only order dated 16‑2‑1978 passed on review is absolutely misconceived and incompetent which deserves dismissal on this score alone. If for arguments sake it somehow be assumed that even the origin order dated 18‑7‑1960 is also the subject of this appeal then proviso (c) to section 4 of the Service Tribunals Act stands in the way as no appeal lies against any order passed prior to 1‑7‑1969 as envisaged by the said proviso reproduced earlier. Thus when adjudged in the context of legal provisions of section 4 of the Act as discussed above the appeal fails being incompetent and untenable. Apart from this legal position the appellant has no case to press in the Tribunal when looked from another angle as well. The case of the appellant is that the Prime Minister vide his order dated 6‑7‑1977 had ordered promotion of the appellant to the rank of D. S. P. and this order had vested a valuable right in him but later, on ;the same was reversed by the successor Government thereby infringing the right of the appellant which 'lad accrued to him under the said order of promotion passed by the Prime Minister. There is no quarrelling with the fact that the then Prime Minister had in fact passed an order of promotion of the appellant to the post of D. S. P. while deciding his so‑called appeal or petition but the question to be settled is whether the appeal before the Prune Minister was within time under rules and whether the Prime Minister while deciding an appeal against an order of reversion dated 18‑7‑1960 could, by accepting appeal, pass an order of promotion directly without any departmental recommendation, and whether the order of promotion had ever ripened into a Government Order under the Rules of Business conferring a right upon the appellant which may be enforced in law. The order of reversion of appellant, dated 18‑7‑1960 to as patently illegal as the relevant law and Police Rules never permitted reversion of a person to a lower post or grade who was recruited in the police service direct. But such an illegality could be got set aside in accordance with law either by way of review or by an appeal under rules. At the relevant time Kashmir Service Regulations were in force and the civil servants were to avail of their remedies of appeal or review under the relevant provisions of K. S. R. The record of personal file of Malik Rehmat Din appellant reveals that he had availed of the remedy of review under Article 49 of K. S. R. Vol. II against the order of his reversion dated 18‑7‑1960 as an attested copy of a letter dated 6-7‑1964 issued under No. 5633 from the office of I.‑G. P. to S. S. P., Muzaffarabad shows that his review petition was filed (P. 24), After the decision of his review petition in 1960 the record shows that the appellant filed a mercy petition on 25‑6‑1970 to the President of Azad Jammu & Kashmir praying that various orders including the reversion order dated 18‑7‑1960 be set aside and his service rights be restored. Neither record nor appellant himself has been able to show as to whether any order was ever passed by the then President on this mercy petition. Then, it was again in July, 1975 that the appellant tiled 'another application before the then Prime Minister for the redress of his old grievances which was accepted and the order of promotion to the Post of D. S. P. was made but the same was got rescinded by the Police Department under the order of the Chief Executive with the result that the order of Prime Minister was never issued at all. Thus from the facts as stated above it is evident that the order of reversion dated 18‑7‑1960 was first challenged by a review petition which was filed by the then I. G. P. Then after about 10 years the appellant moved a mercy petition to the President of Azad Jammu & Kashmir Government and in continuation of the same another petition/appeal was presented to the Prime Minister in 1975. The appellant under rules could file an appeal within prescribed limitation but no appeal could under any law be filed after a decade and entertainment of such a grossly belated petition/appeal by the Prime Minister was absolutely illegal and without jurisdiction. If for arguments sake it be assumed that under Rules of Business the Prime Minister had the power to call the record of any case suo motu or on the application of any aggrieved party, then the order passed by the Prime Minister had never attained finality under law as the Police Department got the same revoked by the Chief Executive in exercise of his review powers with the result that the order of promotion was never issued in the form of a Government. Order under Rules of Business so as to vest any right in the appellant that may legally be enforced in a Court' of law. Thus the plea of the appellant that the order passed by the Chief Executive dated 16‑2‑1978 rejecting his petition/appeal be held ultra wires, without lawful authority and jurisdiction and that order of Prime Minister No. 1302 dated 6‑7‑1977 had vested in him a valuable right of promotion is baseless and without any substance and deserves no consideration. It may also be not out of place to mention here that, as would appear from the representation of the appellant to the Prime Minister, he had challenged his reversion from the post of Assistant Sub‑Inspector to Head Constable in the civil Court also by way of suit which suit had abated by operation of law. After the abatement of his suit he failed to come to the Service Tribunal for the redress of his grievances within the prescribed period. As a result of foregoing discussion there is no force in this appeal and the same is dismissed with no order as to costs. The parties shall be informed of this order. SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).‑I agree. Petition dismissed.