1. ' SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).-This service appeal by Mrs. Safia Akram is directed against the Government Order dated 11th October, 1979 whereby the penalty of the recovery of the amount unlawfully drawn by the appellant as her pay in excess of her entitlement was imposed upon her.
2. ' The facts as alleged in the memorandum of appeal are that the appellant was appointed as Principal Municipal Intermediate College for Women Mirpur on 14th October, 1977. This College was taken over by the Government and its status was raised to that of Degree College w. e. f. 1st January, 1972 vide Government Order dated 18th October, 1972. But under Government Order dated 21st May, 1973 the appellant continued to perform the functions of the Principal of the said College till she was transferred in the same capacity to the Degree College for Girls Kharhik at Rawalakote, after its upgradation from Intermediate level where she joined on 30th September, 1974. While she was working as such the Government on the recommendation of the Selection Board sanctioned National Pay Scale-19 in her favour w. e. f. The date she had assumed the charge of the Principal Degree College vide its order dated 18th September, 1975. She was later on served with a show- cause notice by the Government (Copy Annexure 'F') in which it was alleged that during the departmental Inquiry against one Mohiuddin Shah Assistant Accounts Officer it had come to its notice that the appellant had claimed her pay against rules and that the said officer in his capacity as Assistant Accounts Officer at Rawalakote had made payment in excess of her entitlement to the tune of Rs, 29,686.94 by wrongfully fixing her pay and she was asked to show cause as to why the disciplinary action should not be taken against her on the charge of unlawfully claiming and drawing her pay. After considering the reply of the appellant submitted in response to the show-cause notice and hearing her personally the Government came to the finding that the grade 19 was in fact granted to her w. e. f. 18th September, 1975 but she in collusion with the said officer, got her pay wrongly fixed in grade 19 retrospectively and thus drew amount of money from the Government treasury in excess of her actual pay and consequently finding her guilty of misconduct imposed upon her the penalty of the recovery of the excess amount unlawfully drawn by her as pay in suitable instalments vide the impugned order.
3. ' Feeling aggrieved by the said order, the appellant filed a review petition before the respondent but the same was rejected vide its order dated 11th March, 1980. Hence the present appeal.
4. ' The appellant has taken exception to the impugned order on the ground that since she had assumed the charge of Principal Degree College Mirpur on 1st October, 1972 and continued to function as Principal Degree College till the passing of the Government order sanctioning National Pay Scale 19 to her, she was legally entitled to receive the pay of the said grade from 1st October, 1972 in terms of the relevant Government Order.
5. ' The respondent has contested the appeal by filing written objections through its counsel in which a preliminary objection has been taken to the effect that this Tribunal has no jurisdiction to entertain or hear this appeal. On the facts it is alleged that under Government Order dated 21st May, 1973 the appellant was appointed in the pay scale of Rs, 600-1200 and that National Pay Scale-19 was sanctioned to her with effect from 18th July, 1975 as no post of Principal Degree College was available till then. It is further contended that the impugned order does not in any way adversely affect any of the terms and conditions of the service of the appellant inasmuch as the amount unauthorisedly drawn by a civil servant is recoverable from him at any time.
6. ' We have heard the learned counsel for the parties and have also gone through the relevant record and law. The learned counsel for the respondent has contended that this Tribunal does not possess the jurisdiction to entertain the present appeal in view of the bar contained in proviso B (ii) to section 4 of the Azad Jammu & Kashmir Service Tribunal Act, 1975 as the penalty imposed under the impugned order is not one of dismissal, reduction in rank, removal or compulsory retirement from service. This contention of the learned counsel has much substance in it, with a view to appreciating the above argument, relevant portion of the aforesaid section of the Service Tribunal Act which confers right of appeal on a civil servant before Service Tribunal is reproduced below :-
4. Appeals to Tribunals.-Any civil servant aggrieved by any final orders, whether original or appellate, made by a departmental authority in respect of any disciplinary matter may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal whichever is later, prefer an appeal to the Tribunal: Provided that (b) No appeal shall lie to a Tribunal against an order or decision of a departmental authority determined ... ..
7. (1)..
(ii) The quantum of departmental punishment or penalty imposed on civil servants as a result of a departmental inquiry except where the penalty imposed is dismissal, reduction in rank or compulsory retirement from service.
8. From the bare reading of the above provisions of law reproduced above it becomes quite clear that the jurisdiction of Service Tribunal is specifically barred to entertain and hear an appeal against an order of departmental authority made in a disciplinary proceedings against the civil servant whereby penalty imposed on him is not any one of dismissal removal, reduction in rank or compulsory retirement from service. In view of this legal position since the penalty imposed on the appellant by way of disciplinary action under the impugned order is short of any one of the penalties enumerated above and is only that of recovery of a certain amount of money from her found to have been illegally drawn by her in excess of her entitlement to pay, the present appeal clearly falls outside the ambit of jurisdiction of Service Tribunal being fully covered by proviso (ii) to section 4 of the Service Tribunal Act.
9. ' We have already taken a similar view that no appeal is competent before the Service Tribunal against an order of the competent authority awarding punishment to an accused civil servant in a departmental proceeding which is other than any one of the major penalties mentioned above in a number of cases and out of which mention of few reported cases such a Muhammad Nazir Khan v.
10. Azad Government (I) and Professor Muhammad A slam v. Azad Government (2) may be made.
11. ' For the foregoing reasons we are unable to adjudicate upon the matter in controversy in the present appeal for the reason of lack of jurisdiction and cannot grant any relief to the appellant who may seek, if she so desires, the redress of her grievances arising out of the impugned order, in a competent Court of law in accordance with the law. The appeal is consequently hereby dismissed with no order as to costs.
12. ' KR. GHULAM QADIR (MEMBER).-I agree. {{FOOT NOTE}}
(1) 1980 PLC 564 (2) 1979 PLC 111 {{FOOT NOTE}}