SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN)---This is an appeal by Abdul Karim who is retired PA. Of the Advocate-General of Azad Government of the State of Jammu and Kashmir.
Through this appeal the appellant has impugned the order of Advocate-General dated 31-12-1991 by which he was compulsorily retired from service in public interest and the order dated 1-2-1992 by which his earlier order of reinstatement dated--14-1-1992 was withdrawn and cancelled by the Advocate General.
2. In the memo of his appeal, it is stated by the appellant that he joined the service of Azad Government in the Office of Advocate-General as Stenographer in the year 1972 and that he was subsequently promoted as Selection Grade Stenographer in Basic Pay Scale No. 16 in the year 1988.
He continued as such till 31-12-1991 when he was compulsorily retired from his service by the learned Advocate General, under the impugned order dated 31-12-1991. Feeling himself aggrieved by the aforesaid order of Advocate-General the appellant brought a review petition against the said order before the learned Advocate General and the same having been accepted by him, the appellant was reinstated with back benefits with effect from 1-1-1992. But this order of reinstatement was subsequently cancelled under the impugned order dated 1-2-1992 by the learned Advocate-General for the reasons that the appellant had received his pension dues without informing his Department and the learned Advocate-General had no powers to reinstate him on his post. Aggrieved by the aforesaid order, the appellant brought an appeal before the Chief Secretary Azad Government (respondent No. 3) but it was not decided by him within the stipulated period of 90 days arid the appellant having left with no other remedy brought the present appeal for the redress of his grievances. The appellant impugns both the orders of his compulsory retirement on the following grounds:-
(i) that the order of his compulsorily retirement bas been passed by the learned Advocate-General in total disregard of the provisions of Civil Servants Act, 1976.
(ii) that the appellant held the spotless service career of 19 years service and had been performing his duties honestly and diligently.
(iii) that the impugned order of his retirement was made by the learned Advocate-General without issuing him any charge sheet or show-cause notice and as such the order of his retirement is not maintainable for being violative of the principles of natural justice.
(iv) that the term (public interest) used in the retirement order of the appellant has been misconceived and misused by the learned Advocate-General.
(v) that the provision of Section 12 of Azad Jammu and Kashmir Civil Servants Act to retire a civil servant before the age of 60 years is discriminatory and is against the basic norms of the Holy Ouran and Sunnah.
3. At the end of his appeal, it is prayed by the appellant, that the impugned order of his compulsory retirement dated 31-12-1991 and the impugned order dated 1-2-1992 by which the earlier order of his reinstatement was cancelled by the learned Advocate-General may be set aside and the appellant may be restored to his service from the date of his retirement with all service benefits.
4. By an order dated 23-5-1992, the above appeal was admitted in this Tribunal for regular hearing and the respondents were asked to file their objections as to why the appeal of the appellant should not be accepted. The objections were submitted by respondents duly supported by an affidavit of the learned Advocate-General and the same were placed on the appeal tile. The objections are that the order of his retirement was made by the learned Advocate-General at the request of the appellant who had personally obtained formers signatures on the retirement order.
The appellant also subscribed his signatures on his application dated 31-12-1991 for grant of pension and gratuity and he was thereby a willing party to be retired from service compulsorily.
The word `public interest' was written in the order of retirement just to give benefit of pension to the appellant. It is correct that on his review petition, the appellant was reinstated for the reasons that his Army service was not included in his service rendered by him under the Azad Government. But the learned Advocate-General was kept in dark all about the amount of pension which the appellant had received by that time. In fact the appellant practised fraud upon the learned Advocate-General and had obtained his orders of reinstatement in service mischievously. It is accepted to be correct that the order of reinstatement of the appellant was subsequently cancelled by the learned Advocate-General under the impugned order dated 1-2-1992 for the reasons that he held no powers of review and the earlier order of his reinstatement in service was bad in law. It is also correct that the appellant brought an appeal before the Chief Secretary against the order of his retirement but this appeal of Jammu and Kashmir (Sardar Muhammad Sajawal Khan, Chairman) was not competent before that Authority because under AJ&K Civil servants `Appeal Rules' 1982 and 1991 it should have been brought before the next higher authority.
A replication was also submitted by the appellant wherein it was submitted by him that under Schedule I to Delegation of Power Rules column No. 8, the next higher Authority for hearing his appeal against the order of learned Advocate-General was the Chief Secretary and hence his appeal before the Chief Secretary, Azad Government was quite competent. The appellant denied the rest of the allegations brought against him and submitted that the relief sought for may be allowed to him. His replication was however, not supported by any counter-affidavit of the appellant:
5. We have carefully considered the arguments as were addressed by the learned counsel for the parties. We have also examined the impugned orders and the record placed on the file. It is argued on behalf of the appellant that he has been compulsorily retired from service despite of the fact that he held clean slate of his career and there was nothing' his personal record to justify his compulsory retirement. On behalf of the learned Advocate General, it is submitted that the impugned order of his retire was made by him at the request of the appellant and through that order no punishment was intended to be awarded to him. The appellant after having received his pensionary relief allowance and other service benefits wants to be reinstated on his post for r they service benefits. He prepared his pension case himself, fixed his signatures at the relevant column of the pension case for obtaining the pensionary relief allowance and as such he was not entitled to be reinstated on his post. The impugned order of his retirement is reproduced below for its correct appreciation:-- After having perused the above-noted order, we find that there can be no two views about compulsory retirement of the appellant. In view of the clear orders given by the learned Advocate- General as to compulsory nature of retirement of the appellant, there can be no different interpretation to this order that it was a retirement in routine or it was made at the request of the appellant. Under Rule 4(b)(ii), AJ&K Civil Servants Efficiency and Discipline Rules, 1977, the compulsory retirement of a civil servant is shown as a major penalty and that can be awarded to a civil servant only after following the relevant procedure of inquiry prescribed by the aforesaid Efficiency and Discipline Rifles. There is nothing on the file of the appellant to show that he was on bad report and that his compulsory retirement was deemed essential in the public interest by the learned Advocate-General. The order itself shows that the appellant was permitted to draw his pensionary relief allowance and under such circumstances, the mere fact of fixing of signatures on pension form by the appellant would not change the nature of the impugned order.
6. Through this appeal the appellant has asked for two reliefs to be granted to him by this Tribunal- -one is that the order of his compulsory retirement dated 31-12-1991 and another order dated 1-2- 1992 by which his reinstatement on his post of Stenographer was annulled by the learned Advocate-General, may be vacated and he may be reinstated to his post with all his service benefits. It is, no doubt, that the appellant was compulsorily retired from service under the impugned order dated 31-12-1991. If the appellant was feeling himself aggrieved by the aforesaid order of his compulsory retirement, then the right course open for him was to go in appeal before the next higher authority but unfortunately instead of filing his appeal before the next higher authority who was Law Secretary in his case, he filed an appeal before the Chief Secretary.
According to the learned counsel for the appellant under Delegation of Powers Rules, the Chief Secretary alone was competent to hear the departmental appeal of the appellant and the appellant by filing his appeal before that authority has not deviated from any right course of action. We feel sorry, we cannot contribute to this view. The Delegation Powers Rules do not deal with the subject at issue. The service matters of civil servants are governed by the AJ&K Civil Servants (Appeal) Rules, 1982 and under Rule 2(a) of the aforesaid rules, the next higher Authority has been designated to be the competent authority for the purposes of hearing an appeal against the order of departmental authority and the appellant was required to bring his appeal against the impugned orders before the Secretary Law and having failed to file his appeal before that forum, he has definitely missed the bus which could lead him to a destination of success.
7. We also agree with this view of the learned counsel for the respondents that no review petition is competent when a right of appeal is duly provided in law to an aggrieved civil servant. In the instant case, the appellant held the right of appeal before the next higher authority and the impugned order dated 1-2-1992 made by the learned Advocate-General was made by him without jurisdiction which is undoubtedly an illegal order and must not be I Jammu and Kashmir (Sardar Muhammad ad Sajawal Khan, Chairman) acted upon by any quarter. Hence the imp order dated 1-2-1992 has been rightly vacated by the learned Advocate-General for being illegal and without jurisdiction. The next important question for determination before this Tribunal is that whether the appellant can seek his relief at this forum against the order of his compulsory retirement dated 31- 12-1991. Under proviso 1 to section 4 of Service Tribunal Act, 1975, a civil servant is not permitted to invoke the jurisdiction of this Tribunal if he has failed to avail of departmental remedy provided by any rule of law. In our opinion, the appellant has miserably failed to avail of his departmental remedy by exercising his right of appeal before the next Higher Authority, therefore, he has debarred himself from invoking the jurisdiction of this Tribunal and his appeal fails on that account.
For the above reasons, the appeal is dismissed but no order is given as to the costs.