SARDAR MUHAMMAD AAHRAF KHAN (CHAIRMAN).-This service appeal udder section 4 of the Azad Jammu & Kashmir Service Tribunal \ct, 1975 has arisen in the following circumstances:
2. Iftikhar Ahmed appellant a Peon in the Information Department was entrusted with the duties of Darkroom Assistant by the Director Information to assist the Incharge Photostat Section with the promise of appointment to the said post on its creation by the Government and was appointed as such when the Finance Department accorded its concurrence to the creation of the post of the Darkroom Assistant vide Director Information's Order No. Information 355-59/I D R/76 dated 18th April, 1976 which was to take effect from the date of the issuance of the formal order of the creation of the said post by the Government. But it was only after four days that the said order of his appointment was can celled and one Mr. Pervaiz Iqbal was appointed as Darkroom Assistant by the Director Information vide his Order No. 1501-4/Inf/76 dated 22 April, 1976.
3. The appellant feeling aggrieved by the aforesaid order filed an appeal against it before the Prime Minister who accepting the same restored the appellant to his original appointment. The Director Information in pursuance of the order of Prime Minister restored the appellant to appoint-- ment to the post of Darkroom Assistant w. e. f. 18th April, 1978 and relieved Mr. Pervaz Iqbal of his appointment vide his Order No. 161-65/77 dated 14th April, 1977. Mr. Ali Mohammed respondent No. 2 who was then a Peon in the Information Department made a representation against the above mentioned Order before the Chief Secretary praying therein that he being seniormost Peon in the Darkroom Department had pre--ferential right of promotion to the post of Darkroom Assistant as compared to the appellant which was accepted and the appellant was reverted to the post ofnd Peon in the Information Department while the said respondent was promoted to the post of Darkroom Assistant w. e. f. The date of its creation vide Order No. 2895-2900/77 dated 3rd October, 1977 (copy An--nexure "E" with the appeal) issued under the signature of the Secretary Information.
4. The appellant preferred an appeal against the above mentioned order of his reversion before the Chief Executive Azad Kashmir Government but as the same having remained un-disposed off even after the lapse of statutory period of 90 days from the date of its filing the appellant has come to this Tribunal for the redress of his grievances with the prayer to set aside the order of his reversion on the following rounds :
(1) That the Chief Secretary was not competent to make the impugned order as the order of the Prime Minister made on his appeal had assumed finality.
(2) That the impugned order had been made without lawful authority and consequently is of no legal effect.
(3) That the post of Darkroom Assistant is a technical one to which he was appointed on account of his experience and thus the question of appointment of Respondent No. 2 to it on the basis of seniority in the cadre of Peon did not arise.
(4) That the impugned order was made at the back of the appellant in clear violation of principle of natural justice.
5. The appeal has been contested by the respondents who have put in separate written statements which are mainly to the effect that the appointment of the appellant as Darkroom Assistant was irregular and unlawful as the came was made prior to the creation of the said post by the Government, that the Order of the Prime Minister restoring the appointment of the appellant to the post of Darkroom Assistant was without lawful authority because no appeal was competent before the Prime Minister finder the Rules of Business ; that there was no necessity of hearing the appellant before passing the impugned order in as much as the same was made on the scrutiny of the relevant record and that the appellant does not possess the necessary academic qualification and practical experience prescribed for the eligibility for appointment to the post of Darkroom Assistant and as such has no preferential right of appointment to the said post.
6. We have heard the learned counsel for the parties and have also perused the relevant record pertaining to the case. After giving our due consideration to the arguments advanced by the learned counsel for the parties and going through the relevant law on the points involved in the appeal we are of the opinion that the impugned order is unlawful and without jurisdiction for the following reasons :----
(1) No appeal was competent before the Chief Secretary against the order of the Director Information made in pursuance of the order of the Prime Minister given in an appeal filed by the appellant whereby one Pervaiz Iqbal was relieved of the post of Darkroom Assistant and the original appointment of the appellant to the said post was restored. The right of appeal is a substantive right and is a creation of statute which can only be invoked by an aggrieved person if it is specifically provided by a statute. The right of appeal at the relevant time was provided to a civil servant by Rules 33 and 35 of the K. S. R. Vol. II. Under the aforesaid former rule of K. S. R. Every member of service is entitled to appeal from an order passed by any authority imposing upon him any of the penalties specified in Rule 30 of the K. S. R. Volume II whereas under the latter rule every member of a service other than a subordinate service has been given right of appeal against an order which alters or interprets to his disadvantage the provisions of any rules or contract of service whereby his conditions of services, pay, allowances or pension are regulated. None of the provisions of the above said rules were available to the respondent No. 2 to file appeal before the Chief Secretary against the order of the Director infor--mation with regard to the appointment of the appellant to the post of Darkroom Assistant. The order of the Director Information impugned in the appeal before the Chief Secretary did not impose any of the punishment or penalty upon the said respondent, and by virtue of it only. Mr. Pervaiz Iqbal was relieved of the post of Darkroom Assistant and original appointment of the appellant, to the said post was restored. The order under consideration did not in any way concern the respondent No. 2 as it was not made against him. It was Mr. Pervaiz Iqbal who was in fact affected adversely by it and thus had the right of appeal against' it before the competent authority. Even under Schedule V, Part III of the Rules of Business an appeal against an order of the competent authority who passes any punishment on the civil servants holding non-gazetted posts falling within N. P. S. Nos. 5 to 7 lies to the next Higher Authority to the Head of Department and thus an appeal to Chief Secretary who is next higher authority to the Head of Department in case of an order by the Director Information, could only lie if the Director had imposed any departmental punishment on the Respondent No. 2 and not otherwise. Similarly an appeal under Rule 35 of the K. S. R., Vol. II also did not lie in the instant case before the Chief Secretary because firstly the respondent No. 2 being Peon at the relevant time belonged to subordinate service and secondly the order impugned in the appeal before Chief Secretary was not one which in any way altered or interpreted to the disadvantage of the said respondent provision of any rules whereby his condi--tions of service, pay, allowances or pension were regulated. The Director Information was quite competent to make appointment to the post of, Darkroom Assistant in Nation$1 Pay Scale No. 5. Thus his orders appointing the appellant initially as Darkroom Assistant and relieving Mr. Pervaiz Iqbal from the post of Darkroom Assistant and restoring the appellant's appointment to the said post were quite valid and lawful against which no appeal could lie before the Chief Secretary under any law or rule inforce at the relevant time. Such orders could only either be reviewed by the Director Information under rule 49 or revised by the Government under rule 47 of the K. S. R., Volume II. In this view of the matter an appeal against the order of Director Information dated 14th April, 1977 was ill-conceived and consequently the order of the Chief Secretary made thereon and impugned in the present appeal was without lawful authority and of no legal effect. It may not be out of place to mention here that from the perusal of the relevant file made available to us by the Director of Information it appears that what is described as an appeal filed by the respondent before the Chief Secretary was in fact a representation made against an order of Director Information by which the original appointment of the appellant to the post of Darkroom Assistant was restored. This representation was made over to the Secretary for disposal by, the Chief Secretary who later on put up a note to the Chief Secretary for the cancellation of the order of the appointment of the appellant to the said post and for the appointment of the respondent No. 2 to it in his place which was agreed to. There is no provision in any law or rules for filing a representation against the order of appointment made by the competent authority before the Chic Secretary and as such the impugned order was uncalled for and unwarranted.
The impugned order of Chief Secretary is violative of service rules and principles of natural justice and as each is unsustainable. By the impugned order the appellant has been reverted to the post of Peon from that of Darkoom Assistant and thus it amounts to an order of reduction in rank which is enumerated to be one of the major penalities which can be imposed upon a civil servant under Rule 3 of K. S. R., Vol. II. Under rule 32 of the said Volume of K. S. R. No order of dismissal, removal or reduction in rank can be passed on a Member of a service (other than an order based on facts which have led to his conviction to a criminal Court) unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequated opportunity of defending himself. In the instant case the appellant was neither informed of the grounds on which action against him was taken nor afforded any opportunity of defending himself. The impugned order was passed without giving him any notice of appeal by the respondent against him and without giving him an opportunity of being heard. The impugned order, therefore, having been made in clear violation of the mandatory provisions of rules of service governing the appellant at the relevant time is void and of no legal consequence. Even if there has been no provision in law entitling the appellant to a show-cause notice and of an opportunity of being heard before passing the impugned order still the appellant should have been afforded an opportunity of being heard before passing the same under the principle of natural justice enshrined in a well known and recognised maxim "audi alteram partem" (a. e. No ones should be condemned unheard).
Apart from the above legal grounds the appeal of the respondent No. 2 against the appellant before the Chief Secretary could not succeed on merits as well because respondent No. 2 had no preferential claim to the appointment to the post of Darkroom Assistant as compared to the appellant under any law or rules governing terms and conditions of his service. According to section 8 of the Civil Servants Act a civil servant possessing such minimum qualification as may be described as eligible for promotion to a post for the time being reserved under the rules for depart- -mental promotion in higher grade of service or category to which he belongs. The post of Darkroom Assistant is not one which has been reserved for departmental promotion under any rule and as such no member of Information service had the vested right of appointment to it by promotion. Such being the case, the respondent No. 2 could not lay any claim to promotion to the post of Darkroom Assistant on the basis of being seniormost Peon in the Information Department as no such right was secured to him under any law or rules. As would appear from the original order of the appointment of the appellant to the post of Darkroom Assistant dated 18th April, 1976, it was a case of his direct appointment to the said post and not of promotion from the post of Peon in the Department. In this view of the matter, the appointment of the appellant to the post of Darkroom Assistant could not be set aside in appeal before Chief Secretary and the respondent No. 2 was not entitled to be appointed by promotion to it in place of the appellant on the basis of his seniority among the Peons of the department."
For the foregoing reasons we hold that the impugned order dated 3 October, 1977 is without lawful authority and of no effect and the same is accordingly set aside. The appellant is declared to be still holding the post of Darkroom Assistant and is entitled to the emoluments and other benefits attached to the post. The parties are left to bear their own costs.
The parties shall be informed of this order.
KH. GHULAM QADIR (MEMBER).-I, agree.