RAJA MUHAMMAD ASHRAF KAYANI (MEMBER).--The appellant Muhammad Sulaman Awan and respondent No, 3 Abdul Ghaffar Butt held the post of Head Clerk B-11 and Accountant B-11 respectively in Printing and Stationery Department when their nomenclatures were inter-changed by the respondent No, 2, Controller, Government Printing and Stationery Department vide Order No, 3345-48/Press/86, dated 9-12-1986. The order was called into question by respondent No, 3 before respondent No, 1, Secretary, Industries and Commerce, who passed the impugned Order No, ICS- 2(21)/920/87, dated 15-4-1987, whereby the order dated 9-12-1986 was set aside and both the appellant and respondent No, 3 were restored to their former seats vide Order No, 714-17/Press/87, dated 25-4-1987.
2. Feeling aggrieved by the impugned orders, the appellant has invoked the jurisdiction of this Tribunal under section 4 of the Service Tribunal Act, 1975 (hereinafter referred to be as the Act).
3. In their written statement respondents 1 and 2 while acknowledging the claim of the appellant have submitted it that under the Azad Jammu and Kashmir Civil Servants (Appeal) Rules, 1982 (hereinafter referred to as the Rules), the departmental appeal brought by respondent No, 3 before respondent No, 1 was not competent. On behalf of respondent No, 3 it was submitted that the present appeal was barred by limitation and was not maintainable on that account also.
4. We have heard the parties and have also perused the record. It was submitted by the learned counsel for the appellant that before passing the impugned order dated 15-4-1987, the appellant was not afforded an opportunity of being heard by the respondent No, 1; secondly the interference by respondent No, 1 in the administrative arrangement of the Controller was uncalled for. Against this argument, it was contended by the learned counsel for respondent No, 3, that the order dated 9-12-1986 was illegal and mala fide. The present appeal being filed on 23-6-1987 against the impugned order dated 15-4-1987 is time-barred. The learned counsel for respondents 1 and 2 has vehemently stressed that under the Rules, the departmental appeal by respondent No, 3 was not maintainable before respondent No, 1 and as such the impugned order was not sustainable.
5. We have given our anxious consideration to the whole matter. The respondent No, 3 was promoted as Accountant in Pay Scale No, B-11 vide Order No, 813-15/Press/85, dated 14-5-1985 but his performance as Accountant was not found satisfactory by the Administrative Officer who submitted his proposal to the Controller that in the interest of administration the cadres of the contesting incumbents may be changed. The proposal was accepted and vide order dated 9-12- 1986 the appellant and respondent No, 3 were posted and encadred as Accountant B-11 and Head Clerk B-11 respectively, although the question of change of cadre of the incumbents was not involved as they held their jobs in the same cadre and in the same service. Nevertheless the order dated 9-12-1986 cannot be held illegal and mala fide as has been alleged by the respondent. No, 3.
The order was passed by the Controller and he was quite competent to make that order under the Azad Jammu and Kashmir Industries, Commerce and Mineral Developmemt Department (Printing and Stationery) Service Rules, 1984. At the same time it is not proved on the file that he had made the impugned order maliciously. The malice is a question of fact and it is required to be proved by cogent evidence.
6. We felt advised to go through the service record of both the officials and have found that respondent No, 3 has been recorded to be unfit because of his earning adverse remarks for the years 1985 and 1986 for holding the post of Accountant. It was perhaps for this reason that, he was transferred from the post of Accountant B-11 and was posted as Head Clerk B-11. Under such circumstances, the order dated 9-12-1986 passed by the Controller was neither illegal nor mala fide. Hence, the objection that the impugned order was passed illegally and maliciously is brushed aside.
7. The respondent No, 3 challenged the order dated 9-12-1986 before respondent No, 1, who passed the impunged order dated 15-4-1987. Under second proviso to sub-rule (1) of rule 4 of the Rules, the departmental appeal brought by respondent No, 3 before respondent No, 1 was not competent. The Rule reads as under:--
4. A civil servant shall be entitled to appeal to the appellate authority from an order passed by an authority which:-- (a)alters to his disadvantage his conditions of service, pay, allowances or pension; or (b)interprets to his disadvantage the provisions of any rules whereby his conditions of service, pay, allowances or pension are regulated; or (c)reduces or withholds the maximum pension, including an additional pension, admissible to him under the rules governing pensions; or
(d) terminates his employment or gives notices of such termination otherwise than-- (i)on his reaching the age of superannuation; or (ii)in accordance with the provisions of the Civil Servants Act, 1976: Provided that a person appointed by the Government shall have no right to appeal from an order passed by the Government but he may apply for review of the order: Provided further that no appeal or review 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.
A plain reading of the above rule would show that an appeal shall not lie against a matter relating to the determination of fitness of a person to hold a particular post. In spite of this clear instruction provided in the second proviso of the foregoing rule, the departmental appeal allowed by respondent No, 1 was a clear departure from the rules and hence the impugned order is held void ab initio against which plea of limitaton is altogether immaterial.
8. In view of the above discussion we accept the appeal and set aside the impugned orders dated 15-4-1987 and 25-4-1987. No order as to the costs.