RAJA SAEED AKRAM KHAN, J. -- The titled appeal by leave of the Court arises out of the judgment of the Service Tribunal dated 16.3.2018, whereby the appeal filed by the appellant, herein, has been dismissed.
2. The gist of the facts, in short, is that in the light of standing order No, 2 of 2007, the departmental committee (official respondents) conducted at. examination in the year 2012 and, for promotion, list "6", containing the names of contesting parties, was prepared through order book No, 41, dated 27.03.2012. Respondent No, 3 filed an appeal before the Service Tribunal on the ground that the list has been issued in violation of the seniority list maintained by the Department. Through order book No, 42, dated 27.03.2012, proforma-respondents No, 6 and 7 (who were placed at serial Nos, 1 and 6) were promoted as Operator Staff and Mechanic Staff in grade (B-14).
Against this order , respondent No, 3, herein, also filed Appeal No, 777/2012 before the Service Tribunal. During pendency of appeals before the Service Tribunal, respondent No, 3, herein, also filed a representation before respondent No, 1, which was accepted vide order book No, 45, dated 26.02.2014, and he was ordered to be placed at serial No, I in the list "E". Conse quently , through order book No, 46, dated 27.02.2014, order book No, 41 was amended and the name of respondent No, 3 was placed at the top of the list, whereas, through order book No, 47, dated 28.02.2014, he was adjusted against the post of Sub-Inspector . Feeling aggrieved, the appellant, herein, filed Service Appeal No, 278/2014, before the Service Tribunal. The learned Service Tribunal consolidated all the three appeals and while dismissing appeals No, 775 and 777, filed by respondent No, 3, as infructuous, dismissed appeal No, 278/2014 being devoid of force, hence, this appeal, by leave.
3. Syed Sarosh Gilani, advocate, counsel for the appellant, submitted that the impugned judgment is based on misinterpretation of law and the facts of the case, which is not sustainable in the eye of law. He submitted that the learned Service Tribunal, while handing down the impugned judgment, has recor ded the finding that the appeal filed by respondent No, 3 has become infructuous, as his grievance has been redressed by the authority , without application of judicial mind and adherin g to the principle of law that after invoking the right of appeal, the respondent was debarred from filing representation during pendency of appeals and, thus, the appeals filed by the respondent were liable to be dismissed on merits on this sole ground. The learned counsel added that the learned Service Tribunal also fell in error of law while not taking into account that respond ent No, 3, does not come within the purview of aggrieved person and he had got no locus standi to file the appeal against order book No, 41, dated 27.3.2012, through which his name was placed at serial No, 3 of list "E". The learned counsel added that respondent No, 3 cannot claim seniority as a matter of right and the determination of seniority position was the sole job of the authority , which, after due consideration of the record, placed him at serial No, 3, as his right of seniority was recognized. The learned counsel further added that the learned Service Tribunal also committed a grave illegality while not taking into account that the representation by respondent No, 3 was filed beyond the period of limitation. Moreover , he had to challenge the order passed by respondent No, I as the higher forum, as provided under rules. The learned counsel referred to and relied upon the cases reported as Zaib-un-Nisa v. Tahira Khanum & 5 others [2015 SCR 860], Muhammad Ishfaq v. Muhammad Ayoob & 9 others [2018 SCR 824] and an unreported judgment of this Court titled Nazakat Hussain & others v. DIG Police & others [Civil Appeal No, 153/21009, decided on 24.05.201 1.
4. Conversely , Mr. Nasir Masood Mughal, Advocate counsel for respondent No, 3, strongly opposed the arguments of the counsel for the appellant and submitted that the question of filing of representation before the one arid the same authority has been resolved in the judgment passed by the Service Tribunal. In fact, it was a review but wrongly mentioned as a representation. He also submitted that the appellant failed to point out any illegality or irregularity in the judgment passed by the Service Tribunal and his appeal has been dismissed in accordance with law and facts of the case.
5. Sardar Karam Dada Khan, the learned Advocate-General, frankly conceded the legal position raised by the counsel for the appellant.
6. We have heard the learned counsel for the parties and perused the record alongwith the impugned judgment.
7. The vires of the. Orders-Books No, 41 and 42, dated 7.3.2012, were challenge d by respondent No, 3, herein, before the Service Tribunal by filing separate appeals, whereas during pendency of the appeals, he opted to file a representation before respondent No, 1, who, passed the impugned order dated 27.3.2012. It appears from the record that the representation was filed during pendency of appeals before the Service Tribunal, after two years' period and the same was accepted through order dated 27.2.2014. The order dated 27.2.2014 was challenged by the present appellant in the Service Tribunal, through an appeal. The learned Service Tribunal consolidated all the three appeals and dismissed the same while recording the findings reproduced below:-- "20. The crux of the above discussion is that the appeal No, 775 and 777/2012 have become infructuous, due to issuance of the impugned order Book No, 45, dated 26.02.2014, order Book No, 46 dated 27.02.2014 and order Book No, 47, dated 28.02.2014, which is hereby dismissed accordingly , while the cross appeal No, 278/2014 has no legal force, which is also dismissed with no order as to costs."
A perusal of the above-reproduced findings of the Service Tribunal reveals that the proposition as emerged from the record that whether after invoking the provision of appeal, representation before the same authority , beyond the prescribed period of limitation i,e, 60 days, was competent or not, has not been attended by the Service Tribunal, which is a deviation from the principle of law laid down by this Court in the case titled Nazakat Hussain & others v.
DIG Police & others [Civil Appeal No, 153/2009, decided on 24.05.201 1, wher ein, it was held that under the provisions of Section 21(2) of the Azad Jammu & Kashmir Civil Servants Act, 1976, the representation was not competent before the same authority . Even Otherwise, admittedly , the repres entation was filed beyond the prescribed period of limitation and the impugned order passed by the authority , challenged by respondent No, 3 by way of appeal before the Service Tribunal, was illegal and on the strength of the same, it cannot be held that the grievance of respondent No, 3 was redressed, whereas the proper course for the Service Tribunal was to dismiss the appeal of respondent No, 3 on the ground that the representation before the same authority was not competent under Section 21(2) of the AJ&K Civil Servants Act, 1976. While declaring the order passed on the representation as illegal, the appeal filed by the appellant was liable to be accepted. The learned counsel for the appellant has rightly referred to Nazakat Hussain's case (supra), whereby , the same proposition was dealt with by this Court, while observing as under:- "6. Right of appeal to a Civil Servant has been provided under sub-section (1) of Section 4 of the Azad Jammu and Kashmir Service Tribunal Act, 1975, which reads as under:--
4. Appeal to Tribunals :--- (1) Any civil servant aggrieved by any final order , whether original or appellate made by a departmental authority , in respect of any of the terms and conditions of his service, may, within [ninety] 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.'
It transpires from sub-section (1) of Section 4 of the Azad Jammu and Kashmir Service Tribunal Act, 1975, that any civil servant aggrieved by any final order may prefer an appeal before the Service Tribunal within 90 days of communication of such order to him. The order dated 2.3.2005, through which the appellants were promoted to the post of ASI Police, is a final order and only appeal lies before the Service Tribunal, against such order .
6. Similarly , Section 21 of the Azad Jammu and Kashmir Civil Servants Act, 1976, provides right of appeal or representation in the following manner:--
21. Right of appeal or representation .---(1) Where a right to prefer an appeal or apply for review in respect of any order relating to the terms and conditions of his service is allowed to a civil servant by any rules applicable to him, such appeal or application shall, except as may otherwise be prescribed, be made within 60 days of the communication to him of such order .
(2) Where no provision for appeal or review exists in the rules in respect of any order a civil servant aggrieved by any such order may, except where such order is made by the Government, within sixty days of the communication to him of such order , make a representation against it to the authority next above the authority which made the order: Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade.'
It is abundantly clear from sub-section (2) of Section 21 of Civil Servants Act, 1976 that a representation lies before the next above the authority which made the order . In the case in hand, Depu ty Inspector General of Police Muzaf farabad Range recorded the order dated 2.3.2005 and a representation was also filed before him which is in derogation of sub-section (2) of Section 21 of Civil Servant Act, 1976.
8. Rule 9 of the Azad Jammu and Kashmir Civil Servants (Appeal) Rules, 1991, which provides the procedure for filing of appeals and representations and their disposal. Rule 9 deals with the representations which reads as under:--- REPRESENT ATION
(1) The right of representation shall be governed under the provisions of Section 21 of the Azad Jammu and Kashmir Civil Servants Act, 1976.
(2) The provisions applicable to the appeals shall apply mutati mutandis to the representations,
(3) The authority to whom the representation is made shall exercise the same powers as are vested in the appellate authority under these rules.'
The above rule further strengthens Section 21(2) of the Azad Jammu and Kashmir Civil Servant Act, 1976.
9. We also agree with the contention of the learned counsel for the appellants that even otherwise a representation lies to the authority next above the autho rity which made the order . In the case in hand, Deputy Inspector General of Police Muzaf farabad Region issued the order dated 2.3.2005 and representation was also filed before him.
Under Section 21(2) of the Azad Jammu and Kashmir Civil Servants Act, representation does not lie before the same authority which recorded the origin al order . Our this view finds support from a case titled S.H.M. Rizvi v.
Maqsood Ahmed reported as PLJ 1982 SC 36. Followin g observation has been made by the apex Court of Pakistan:-- ....period of filing of appeal or review application where such a right is conferred by law and confers a right to file a representation in case no such right of appeal or review is provided under the law. The representation in order to qualify as such under Section 22 of the Act had to be made to the authority next above the authority which made the order .'
10. Appellants herein have taken both the above points, firstly , that only appeal is competent before the Service Tribunal against a final order and at the same time, they have categorically stated in the present appeal and concise statement that representation even if admissible lies before the authorities next above the authority which made the order .
In the light of what has been stated above, the present appeal is accepted, the impugned judgment of Service Tribunal dated 31.3.2009 is set aside, order of respondent No, I dated 27.7.2006 is set aside, promotion order of appellant dated 2.3.2005 stands restored. No order as to costs."
After keeping in view the above legal position, we are fully justified to set aside the impugned judgment passed by the Service Tribunal while holding that the same is based on non-application of judicial mind/non-adhering to the law laid down by this Court. Resultantly , the appeal is accepted while setting aside the judgment of the Service Tribunal with the observation that the appeals filed by respondent No, 3 were liable to be dismissed on the ground that the representation was not competent before the same authority . Even otherwise, the same was barred by limitation. The order passed by responden t No, 1 on the representation filed by respondent No, 3 was illegal and of no legal ef fect. The appeal is accepted with no order as to costs.