1998 PLP (C (PLC(CS))

Shaukat Hayat Khan for Respondents Nos. 1 to

5. Sh. M. Bashir Gohar for Respondents Nos. 6 to

8. Date of hearing: 14th May, 1997. The available record reveals that petitioner was appointed as Patwari in the D.I. Khan Tehsil on 15-5-1976. He being fully conversant with land reform work was promoted as Kanungo an Ex-cadre post in the Land Reform Office of the Deputy Commissioner, D.I. Khan on 6-1-1980. He was selected by the Deputy Commissioner, D.I. Khan as a regular Kanungo candidate on officiating basis vide his order dated 31-3-1982 under Rule 5(3) of the West Pakistan Kanungo Services (Northern Zone) Rules, 1964. Subsequently on the recommendation of Departmental Promotion Committee (D.P.C.), D.I. Khan he was selected on merits as Kanungo candidate alongwith others under Rule 4(a) of the Rules (ibid) read with Notification No. SOS-III (S&GAD) 1-206/74, dated 7-1-1976, vide order, dated 31-12-1983. This latest order was challenged in appeal by the aggrieved Patwaris before the Commissioner, D.I. Khan Division, which was accepted, vide order, dated 10-9-1985 case was remanded for selection afresh. After remand, the Deputy Commissioner on the recommendation of the D.P.C. selected the petitioner and others as Kanungo candidates vide his order, dated 29-10-1991. Feeling aggrieved the Patwaris including respondents Nos. 6 to 8 preferred an appeal to the Commissioner but the same was dismissed on 4-12-1991. Respondents Nos. 6 to 8 filed separate second departmental appeals to Senior Member, Board of Revenue (N.-W.F.P.) though not warranted under the law but were entertained and ultimately heard/accepted by the Member, Board of Revenue. The case was remanded back for re-examination vides his order, dated 10-2-1994. On remand the Commissioner, D.I. Khan Division re-examined all the cases and dismissed the departmental appeals of respondents Nos. 6 to 8 vide order. dated 14-12-1994 holding that recommendation of D.P.C. is based on seniority-cum-fitness and seniority alone could not be considered for promotion. Respondents Nos. 6 to 8 once again filed separate second departmental appeals to the Senior Member, Board of Revenue, N.-W.F.P. arrayed as respondent No. 2 in the instant writ petition. Respondent No. 2 (SMBR, N.-W.F.P.) vide his impugned order dated 12-12-1995 accepted the appeal by a single order setting aside both the orders i.e. order of the Deputy Commissioner, D.I. Khan Division dated 29-10-1991, and order in appeal by Commissioner, D.I. Khan Division dated 14-12-1994, and remanded the cases to the Deputy Commissioner to include the name of Senior-most petitioner before him in place of Alamgir respondent before him. ,

2. In the stated background of the case the main contention of the learned counsel for petitioner is that there is no provision for second departmental appeal in the N.-W.F.P. Civil Servants (Appeals) Rules, 1986 and the impugned order of respondent No. 2 dated 12-12-1995 is coram non judice and void ab initio. The only remedy available to respondents Nos. 6 to 8 after dismissal of their appeal by Commissioner, D.I. Khan on 10-2-1994 was to file an appeal in N.-W.F.P. Services Tribunal, but they choose to wrong forum for their redress.

3. The learned counsel for the respondents Nos. 6 to 8 was asked to show that whether a second departmental appeal was competent under the N.-W.F.P. Civil Servants (Appeal) Rules, 1986 or any other law on the subject. The learned counsel for contesting respondents (respondents 6 to 8) frankly conceded that the Departmental appeals are governed by section 3 of the N.-W.F.P. Civil Servants (Appeal) Rules, 1986 and there is no provision of second appeal. However, he was of the view that even if the impugned order of respondent No. 2 is illegal and without lawful authority, the only forum for its challenge was N.-W.F.P. Service Tribunal and contended that jurisdiction of this Court is barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 and vehemently argued that the grievance of petitioner cannot be redressed under Article 199 of the Constitution.

4. As noted above this is an admitted position that the respondent No. 2 (SMBR, N.-W.F.P.) was not empowered to hear any second departmental appeal/review and he has wrongly exercised the powers of appellate authority. Section 3 of the N.-W.F.P. Civil Servants (Appeal) Rules, 1986 provides a right of appeal to an aggrieved civil servant by any order of the Competent Authority relating to the terms and conditions of service to file appeal within 30 days from the date of communication of order to him, to the Appellate Authority. The appellate authority has been defined to section 2(a) of the rules ibid means an officer or authority next above the competent Authority.

5. The competent Authority in the instant case was Deputy Commissioner who had passed an order selecting the petitioner and others as Kanungo candidates on merits after duly recommended by D.P.C. on the basis of seniority-cum-fitness as required under Rule 4(a) of the West A Pakistan Kanungo Service (Northern Zone) Rules, 1964. The next about authority was the Commissioner, D.I. Khan Division and respondents Nos. 6 to 8 rightly exercised their right of appeal under section 3 of the N. W. F. P. Civil Servants (Appeal) Rules, 1986. Even if respondents 6 to 8 were dissatisfied with the order of appellate/review authority i.e. Commissioner, D.I. Khan Division, may have filed an appeal before the N.-W.F.P. Service Tribunals but they had wilfully and knowingly chosen a wrong forum for their redress and filed a second appeal before the respondent No.

2. The contention of the learned counsel for respondents 6 to 8 regarding exclusion of jurisdiction of this Court under Article 212 of the Constitution has got no force, for the reason that the impugned order of respondent No. 2 dated 12-12-1995 is coram non judice and void ab initio, being passed by an officer performing functions in connection with the affairs of a province without any authority, This Court is competent under Article 199 of the Constitution to strike down an order passed without a lawful authority and of no legal effect, as observed in 1990 PLC (C S.) 313.

6. As a result of above discussion, this petition is allowed. The impugned order of respondent No. 2 dated 12-12-1995 is struck down being without lawful authority, void ab initio and corum non judice with no order as to costs. H.B.T./20/P ??????????? Petition allowed.