1994 PLP (C (PLC(CS))

6. Appellant has stated in his appeal that he was posted as Patwari on 12‑12‑1970 and posted in the Department of Custodian under the authority of the order of the Revenue Commissioner. This point was raised by the appellant in the Supreme Court in Appeal No. 20 of 1992 and the decision by the said Court was that the appellant was not appointed as Patwari by the Commissioner. He was rather appointed Patwari by the Custodian by order-dated 14‑12‑1970 on the recommendations of the Commissioner. It appears that the appellant despite having got a clear verdict of the Supreme Court on this point in the appeal filed by him in the Supreme Court misstated this fact in the present appeal which shows that the appellant is not coming to the Courts with clean hands. This may not affect the merits of the case but it tells upon the conduct of the appellant that he does not believe in fairplay.

7. The learned counsel for the appellant has questioned the correctness of the impugned order on the ground that the Commissioner misread the order of the Collector and wrongfully held and based his opinion on the facts which were not on the record of the appeal. While going through the order of the Commissioner we find that he has not accepted the verification dated 30‑8‑1980 of the then Deputy Commissioner, Kotli which was made foundation by the Collector to conclude that appellant be deemed as Girdawar of District Kotli. According to the Commissioner the verification given by Sardar Muhammad Hanif Khan was not acceptable for the reasons that approval for a candidate Girdawar which is given under a regular order and which is maintained in the records of the District Office and entered in the fist of Kanungo candidates is nowhere in existence. The Revenue Commissioner also relied on the replies of the appellant which he submitted in appeal filed by one Qazi Muhammad Ghulam Asghar before the Revenue Secretary. The contents of the appeal of Qazi Muhammad Ghulam Asghar were not the part of the record of the appeal before the Commissioner. The counsel for appellant appears to be correct to the extent that it was not proper to base the opinion on the replies of the appellant which were not part of the record of appeal before the Commissioner.

8. The learned Revenue Secretary had formulated following propositions and directed the Collector of District Kotli to inquire into these points:

9. The inquiry conducted by the Collector on the first point is as under:‑‑

10. From the perusal of the above findings of the Collector it appears that the note given in the column of remarks was suspicious. Having formed this view that the entry is of doubtful nature the Collector, even then accepted the verification of Sardar Muhammad Hanif Khan which was given on the application of the appellant and the appellant was deemed as candidate Girdawar from 30‑8‑1980. The Commissioner has not accepted the findings of the Collector and set aside the decision. It may be that the decision of the Commissioner is based on extraneous facts but the conclusion reached by him is not without foundation. The appointment of Girdawar Kanungo is regulated under the rules known as Azad Jammu and Kashmir Kanungo Service Rules, 1979. The method of recruitment is provided under rule 5 of the said Rules which prescribe that 1/3 of the vacancies in the post of Kanungos shall be filled by initial recruitment. The qualifications for initial recruitment in the service for the post of Kanungo are given in rule 7 of the said Rules which is as under:‑‑ "

7. Qualifications."‑‑(1) No person shall be appointed to a post in the service by initial recruitment unless? (i) he is accepted as Kanungo candidate by the Collector of the district of his domicile; (ii)??????? he has obtained the certificate of efficiency prescribed by the Director, (iii)?????? his name is borne on the list of Kanungo candidates maintained by the Collector in accordance with the instructions issued by the Board, of Revenue from time to time. (2)??????? No person, not already in Government service, shall be appointed to the service unless he produces a certificate of character from the principal academic officer of the academic institution last attended, and also certificates of character from two other responsible persons, not being his relatives, who are well acquainted with his character and antecedents.

11. It is mandatory condition for initial recruitment in the service that the name of the persons should be borne on the list of Kanungo candidates maintained by the Collector in accordance with the instructions issued by the Board of Revenue. We have gone through the register of approved candidate for the post of Girdawar and from that the name of the appellant has not been entered anywhere in that list. The name of the appellant, however, is entered at Serial No. 23 in the list of approved candidates Patwaris of District Kotli and in this list of Patwari the entries in the column of Remarks have been manipulated and it also appears that overwriting has been made to the already existing entries. The overwriting on the already existing entries in the light ink is visible in this column even to the naked eye.

12. The absolute condition for the recruitment under the Rules is that the persons should be borne on the list of Kanungos of the concerned District. If an entry and that too highly suspicious is found in the list other than the list maintained for the post of Kanungos cannot be relied upon. The Collector fell into error by accepting the verification dated 30‑8-1980 of Deputy Commissioner as against the mandatory provisions of the Rules as stated above. The Collector also appears to have ignored condition (ii) of Rule 7 which says that the persons to be recruited must have obtained the certificate of efficiency prescribed by the Director of Land Records. The perusal of the record shows that the Collector did not even care to look into the provisions of the rules, which regulate the recruitment of the service. The findings thus reached by the Collector are in disregard of the rules and we hold that they are wrong both on facts and law.

13. The appellant has been reverted to the post of Patwari vide Order No.915‑49/93, dated 26-8‑1993 of Collector. The appellant has also challenged this order in this appeal. It is contended by the learned counsel for the appellant that this is not an independent order but merely the order implementing the order of the Commissioner. This order states that it is being issued in accordance with the decision of the Commissioner but at the same time the appellant has been reverted to the post of Patwari. This order affects the terms and conditions of the service of the appellant and we are of the opinion that this it a separate order, independent of the order of the Commissioner. This order could not be challenged directly before this Tribunal and therefore, the present appeal is not maintainable.

14. The upshot of the above discussion is that this appeal is without any force and we dismiss it accordingly. No order as to costs. H.B.T./257/SrA?????????????????????? ??????????????????????????????????????????????? ??????????? Appeal dismissed: