1994 PLP (C (PLC(CS))

RAJA BASHIR AHMAD KHAN (CHAIRMAN): ‑‑This appeal is directed against the Order No.SE/Schools/4/7923‑28/92, dated 24‑11‑1992 whereby the appointment of appellant Qari Hafiz Noor Muhammad was annulled and respondent Qari Muhammad Ibrar Khan was appointed in his stead.

2. Briefly stated the facts are that appellant was appointed as Qari against the post vacated by Riaz Ahmad Nomani in High School Pukhar, District Poonch vide Order No. 13289‑93/DEO/90, dated 13‑9‑1990. The appointment was purely temporary and subject to confirmation of Selection Committee. The appointment of appellant was made on permanent basis by order of District Education Officer, Poonch through order dated 28‑1‑1991 with effect from 13‑11‑1990. The Selection Committee, District Poonch interviewed candidates for the post of Qari and prepared a list on 12‑11‑1990. Respondent Qari Muhammad Ibrar Khan and appellant Qari Noor Muhammad Khan were placed at Serial Nos. 1 and 13 respectively. Respondent Qari Muhammad Ibrar Khan was not provided any job despite securing first position in the interview. An application dated 10‑8‑1992 was moved by the brother of respondent Qari Ibrar Ahmad before Secretary Education stating therein that his brother was temporarily appointed in leave arrangement against the post of Qari in High School Pukhar. His brother obtained position No.l in test/interview held on 13‑11‑1992. Despite his position at Serial No.l Qari Noor Muhammad who was at Serial No. 13 was appointed as Qari. This application was processed in the Education Secretariat. Deputy Secretary Education on 15‑11‑1992 submitted the following note to Parliamentary Secretary Education who, in turn recommended that approval to para. No. 81, dated 15‑11‑1992/noting be accorded. The Education Minister approved the proposal on 20‑11‑1992 and the impugned Notification was issued thereafter.

3. We have heard the learned counsel for the parties and have gone through the record.

4. The learned counsel for the appellant has argued that the impugned order has been passed on the application of brother of respondent No. 3 who is not a civil servant and, therefore, not competent to file any application or appeal on behalf of his brother. The appointment of appellant was made permanent and he could not be deprived of his appointment without first affording him an opportunity being heard and without any proceedings of misconduct under Efficiency and Discipline Rules. As against this argument, it is submitted by the learned counsel for respondents Nos.3 to 5 that respondent No3 was at Serial No. 1 in the merit list and deserved to be appointed first. The respondent was thus deprived of his legitimate right.

5. On the application of appellant respondents Nos.4 and 5 were brought on the record with a view to establish that if at all respondent No. 3 was to be appointed the services of respondent No. 4 who was at Serial No. 31 in the list and respondent No.5 who was appointed without any interview should have been dispensed with. The respondents Nos. 4 and 5 were not party in the proceedings conducted by Education Secretaries. Therefore, we are of the view that without proper proceedings before competent authority they were unnecessarily dragged in this Tribunal. If appellant wanted to establish that persons junior to him and without test/interview were appointed and should have been removed from service he could prove this fact without impleading respondents Nos. 4 and

5. We hold in the circumstances that this appeal is incompetent against respondents Nos. 4 and 5.

6. It is admitted by the parties that respondent No. 3 was placed at Serial No. 1 in the Selection List and should have been appointed against the first available vacancy. Appellant Noor Muhammad was already performing his duty as Qari and it appears that he was permanently appointed in view of the condition in his first order of appointment that the appointment would be subject to confirmation by Selection Committee. On being confirmed by the said committee respondent No. 3, no doubt, deserved to be given first appointment as Qari but the question to be resolved is whether the procedure which has been followed for giving relief to respondent No. 3 is proper and lawful. The perusal of the concerned file shows that the brother of respondent No. 3 moved an application to Secretary Education. The matter was processed in the Education Secretariat and approval of Minister Education was obtained through Parliamentary Secretary Education. The business of the Government is to be transacted in accordance with the procedure laid down in Azad Government of the State of Jammu and Kashmir Rules of Business, 1985 and the instructions issued by Services and General Administration Department. In the said Rules or the instructions the Parliamentary Secretary figures nowhere to handle administrative matters of the Government. The Administrative business in the Secretariat is to be disposed of through department consisting of Minister, Secretary and such other officials as Government may determine as provided under Rule 4 of Rules of Business. In this Rule no role has been assigned to Parliamentary Secretary to sit over and control the administrative set‑up of a Department. It is, therefore, most unfortunate that the Deputy Secretary Education instead of submitting the file to Secretary of the Department routed it through the Parliamentary. Secretary who recommended the approval of above reproduced proposal of appointment of respondent No.3. The resultant injustice, which has occurred in this case is a natural consequence of unlawful manner, which was adopted by the Deputy Secretary for the disposal of this case.

7. The perusal of the impugned order shows that the appointment of appellant has been terminated by the Government by accepting the appeal dated 10‑9‑1992 of respondent No.

3. There is no appeal having been filed by the respondent No.

3. The application was, however, moved by the brother of respondent No. 3 to Secretary Education and the impugned Government order has been issued on the basis of this application. The appointment order of appellant was passed on 28‑1‑1991. This order could be challenged by way of appeal only by a person who was a civil servant and whose terms and conditions of service had been affected within a period of sixty days of the communication of the order appealed against under the provisions of Rules 4 and 5 of Azad Jammu and Kashmir Civil Servants (Appeal) Rules, 1991. The brother of respondent No. 3 was not a civil servant. Respondent No. 3 was not a civil servant at the time when order dated 28‑1‑1991 was passed and question of unfavourable interruption of terms and conditions of respondent No. 3 did not arise under the said Appeal Rules. An appeal is only competent before the Appellate Authority, which is the authority next above the Authority, which passed the order. The order of appointment of appellant was passed by District Education Officer. The next above Authority (appellate Authority) of District Education Officer is Divisional Director and not the Education Secretary or Education Minister. The case was processed in the Education Secretariat in violation of law and against the Appeal Rules and also against the spirit of Rules of Business. The appellant was not afforded any opportunity of being heard, the impugned order is also violative of the principle of natural just The impugned order, therefore, is not sustainable.

8. The end result of discussion is that this appeal succeeds. We, therefore, reverse the impugned order and restore the appellant to his original post with all subsequential benefits. We, therefore, make no order as to costs. H.B.T./247/SrA Appeal accepted.