1. ' KH. GHULAM QADIR (MEMBER).-The impugned Government order No, Admin. 5071/78/79 dated 15th September, 1979 whereby the appellant was dismissed from service vide No, S&GAD/20- 27/80 dated 6th January, 1989 by which review petition against the impugned order was rejected by the respondent have been challenged as illegal, ineffective and void by the appellant Abdul Waheed Khawaja, through this service appeal under section 4 the Service Tribunals Act, 1975.
2. ' The brief facts as stated in the memo. Of appeal, which resulted in this appeal are that the appellant had joined the service under the Azad Jammu and Kashmir Government/respondent as senior teacher as in the Education Department on 15th May, 1967 and continued as such till 1st February, 1975 when he was promoted as Lecturer vide Government Order No, 126-1-32 dated 14th January, 1975. During the course of his appointment as Lecturer a complaint was lodged against him that he had committed forgery by changing third division of his Master's Degree into that of second Division. On this charge the Government respondent placed the appellant under suspension and appointed Mr. Abdul Latif Ansari, Chief Administrator Zakat, as Inquiry Officer vide Government Order No, Admin. 3144-52/79, dated 2nd May, 1979 to inquire into the accusation of forgery who made an inquiry and submitted his report to the Government. Ultimately, considering the inquiry report, the show-cause notice and the reply thereto submitted by the appellant the Government respondent issued the impugned order whereby the appellant was dismissed from service. The appellant feeling aggrieved availed of the departmental remedy and submitted a review petition before the respondent but the same turned out to be fruitless as it was rejected.
3. After having exhausted the departmental remedy the appellant has now sought redress by preferring this appeal before the Service Tribunal.
4. ' In the memo. Of his appeal the appellant has raised the following objections to the validity and legality of the impugned order :-
(1) That the decision was not taken in accordance with the show-cause notice as in the show case notice it was stated as to why disciplinary action should not be taken whereas the impugned order awarded the penalty of dismissal and bar from future employment.
(2) That the impugned order does not contain any basis for the punishment and even if it be assumed that the charge was proved met the ends of Justice.
(3) That before passing the impugned order no second opportunity of showing cause against the proposed punishment was afforded to the appellant in accordance with the requirement of law and the principle of natural justice, ' With these submissions the appellant has prayed for setting aside the impugned order with all the consequential reliefs.
5. ' The respondent filed written objections to the appeal through his counsel wherein paras. 1,3,4, and 5 of the appeal have been admitted as correct. However it has been maintained that the allegation of forgery against the appellant turned out to be correct and true in the inquiry and that the punishment of dismissal was awarded after issuance of a proper show-cause notice and observing ' all other formalities under rules. As such order of dismissal was well founded and does not suffer from any legal defect which may be fatal to the impugned order.
6. ' The appellant got the relevant record summoned and accordingly the same was produced before the Tribunal. The appellant produced no other evidence in support of his contentions. The respondent also did not lead any evidence.
7. ' We have heard the arguments made by the learned counsel for the parties and have also examined the files summoned by the appellant.
8. ' The counsel for the appellant has advanced two-fold argument; firstly, that the appellant indeed passed his Master's Degree in History in Second Division securing 376 marks in his second attempt in July, 1970 and at the time of his selection by the Public Service Commission for the post of Lecturer of History he had submitted his Degree bearing second Division with 376 marks on the basis of which he was selected by the Commission. This fact was clearly borne out by both the selection letter of the Public Service Commission No, P. S. C. 4308/74 dated 22nd December, 1974 addressed to Secretary Education and the Government Order No, Admin. 126-132/75 dated 14th January, 1975. Under the said letter the appellant was selected by the Public Service Commission at serial No, .5 on the basis of merits for the post of Lecturer in History and subsquently on the recommendations of Public Service Commission the President Azad Government of the State of Jammu and Kashmir appointed the appellant as Lecturer of History for Inter College Dudyal vide serial No, 42 of the Government Order No, 126.132/75 dated 14th January, 1975. In both the above quoted documents it is clearly stated at serial No, 5 and serial No, 42 respectively that Khawaja Abdul Waheed bears the Master's Degree in History with second Division. Had the original Degree been tampered with at the time of interview and selection by the Public Service Commission it must have been noticed and detected by the Commission before selection of the appellant as the tampering is quite patent and easily noticeable by every eye even today. The fact that the Public Service Commission did not take any objection in this regard goes to establish that the version of the appellant appears to be correct that his Degree was a genuine one at the time when he produced it before the Public Service Commission and that sometime later any of his ill-wishers had tampered with the Degree with a view to damaging his career.
9. ' Secondly, the learned counsel for the appellant submitted in the alternative that even if it be assumed for the sake of argument that the guilt of tampering with the Degree by the appellant is held to be proved beyond any doubt then appellant should have been awarded the punishment of reversion to his original post of senior teacher as he was promoted from the post of senior teacher to that of Lecturer and the punishment of dismissal was extremely unjust and harsh in the circumstances of the case.
10. ' We have devoted our serious thought and consideration to the first contention of the learned counsel for the appellant but are unable to subscribe and endorse the same. The charge against the appellant is that be had passed his Master's Degree of History in 3rd Division obtaining 336 marks but by tampering he converted the 3rd Division into second one and the marks obtained were so changed as to read 376 instead of 336. Had the stand of the appellant been correct that he had passed in second division securing 376 marks then where was the necessity of tampering and changing the Division and the Marks and why should anyone else do this meaningless, unpleasant and ill job without any rhyme and reason. The document of Master's Degree is supposed to be all along in the custody of appellant after its issuance by the University of the Punjab as the appellant has nowhere asserted that at any time this document remained in the possession of somebody else and thus such other person had the occasion to tampering with the Degree. The appellant while making a statement before the Inquiry Officer had categorically stated that though the document of Master's Degree clearly reveals that it has been tampered with but he cannot say why and who did the tampering. Unless the appellant shifts the responsibility of the " tampering upon some other person by name he will be presumed to be res possible for any change brought about in the Degree which was always lying in his custody.
11. ' Moreover, the inquiry officer Mr. Abdul Latif Ansari during the course of inquiry examined the relevant record in the University of Punjab, at Lahore pertaining-to the result of the appellant in respect of the impugned Master's Degree and obtained a result certificate signed by the Controller of Examination which is at page 28 of the inquiry file produced before the Tribunal. The perusal of this certificate and the report of the inquiry officer undoubtedly reveals that the detailed marks obtained by the appellant make a total of 336 marks only which makes out 3rd Division and according to this result the Master's Degree in question was issued by the University in favour of the appellant. The appellant was confronted by this factual position of his result during the inquiry but the same was in no manner objected to by the appellant who was offered an opportunity by the inquiry officer to say anything in defence but the appellant did not question the correctness of the contents of his result sheet. Naturally the Master's Degree must have issued in accordance with the detailed marks bearing 336 marks in the 3rd Division. Thus the stand of the appellant that the Degree in question was unhampered 1 when he produced it before the Commission stands falsified. The necessity of tampering with the marks and Division only arose because the marks obtained by the appellant fell short of the second division and the circumstances of the case prove beyond any doubt that it was only the appellant who changed the marks and the division of his Degree in order to suit his ends and ensure his selection for the post of Lecturer. Through this attempt of tampering the appellant succeeded for the time being to achieve his end for the Commission somehow failed to detect the forgery at the time of his, selection. This delinquency on the part of the Commission might be due to careless scrutiny of the document of Master's Degree of the appellant and thus lost sight of the fact tampering which fact came to light at a later stage when the process of scrutinizing in order to weed out the forged and false Degrees. But the fact of failure of the Commission to check the Degree in question at the time of selection in any way would not justify treating a forged Degree as genuine one. With this discussion of the facts the contention of the counsel for the appellant that the appellant bad passed in Second Division and someone else had tampered with the marks and the division in the Degree is repelled as untrue and without any substance.
12. ' The second argument of the counsel for the appellant that the appellant was promoted as Lecturer from the post of senior teacher and that in case of punishment for having tampered with the Degree in question he ought to have been reverted to post of senior teacher instead of being dismissed as the same would have served the ends of justice does not hold water as the learned counsel is misconceived in contending that appellant was promoted to the post of Lectureship. The appellant was holding the post of stook teacher in the cadre of schools whereas he was selected for the post of Lecturer in the college cadre which is quite distinct from school cadre for all purposes. An official can be promoted within his own cadre and no promotion can take place outside the cadre under rules. We have seen the original order of appoint, meat No, 126-132 dated 14th January, 1975 /here under appointments and transfers of as many as 89 Lecturers was ordered on the recommendation of Public Service Commission, The opening words of this order read as under :-- {{URDU TEXT}} ' Thus, the order says that only appointments and transfers were ordered and no case of promotion took place under this order as alleged by the learned counsel for the appellant. At serial No, 42 of this order the appointment of the appellant was made which reads as under :- {{URDU TEXT}} ' From the wording of his order of appointment it, is quite obvious and there is no ambiguity as to the nature of his appointment that the appointment of the appellant was a fresh one in the college cadre and no question of promotion arises as alleged and stressed by the counsel for the appellant. The appointment order is self-explanatory and does not leave any room for making any other interpretation as regards the nature of appointment. With this discussion the arguments of the counsel for the appellant is refuted as without any force or basis.
13. So far as the quantum of punishment awarded to the appellant is concerned we feel that it is extreme and excessive one in nature in the circumstances of this case. The appellant is double M.
14. A. And his other Master's Degree in Political Science is undoubtedly in second division. He has served in the Education Department for about twelve years and has sufficient experience in teaching profession. The punishment of dismissal barring him from future employment is certainly a harsh one whereas a lighter punishment of removal from service would have been sufficient to meet the ends of justice. Hence we feel advised to vary the punishment of dismissal to that of removal from service in presence of special circumstances of this case and accordingly vary the punishment to that of removal. With this variation in punishment the appeal is rejected.