SARDAR MUHAMMAD SAJAWAL KHAN (CHARMAN):--This appeal is directed against the order dated 9-8-1990 of Deputy Commissioner/Collector, Kotli by which the appellant was reverted to the post of Patwari and against the order dated 13-12-1990 passed by the Revenue Commissioner, Azad Kashmir area on the appeal of appellant. In this appeal, the appellant, Raja Muhammad Asghar. Khan, Girdawar presently posted as Patwari Halqa Phagwari has impleaded Commissioner, Revenue Department and Deputy Commissioner/Collector, Kotli as respondents for seeking his relief against them.
2. In the memo of his appeal, it is stated by the appellant that he was originally appointed as Patwari in the Revenue Department in the year 1959. Subsequently he was promoted to the post of Settlement Kanoongo w.e.f. 1-1-1979. In the year 1985 he was transferred and posted as Office Kanoongo by the respondent No. 1 vide his order dated 8-10-1985. But on 9-8-1990 when the appellant had put in about eleven years and seven months service as Kanoongo/Girdawar in the Department, he was reverted to the post of Patwari by respondent No. 2 under the impugned order which was made by him on the basis of the order dated 24-2-1990 made by the respondent No. 1 to which the appellant was not a party. Feeling himself aggrieved, the appellant filed an appeal before the Commissioner, Revenue Department (respondent No. 1). The Commissioner required the appellant to implead some other Girdawars against whom he was claiming his remedy, as a party in his appeal. The appellant clarified the position vide his application dated 29-10-1990 that he had not directed his appeal against any specific individual and as such his appeal may be disposed of on merits. But the appeal was dismissed and the dismissal order was communicated to the appellant on 20-12-1990. The appellant seeks reversal of the order on the following grounds:--
(a) That the order of Deputy Commissioner/Collector, Kotli dated 9-8-1990 is violative of the principles of natural justice and is without jurisdiction. The order was made on the basis of an earlier order of the Revenue Commissioner, which he had passed in some other proceedings pending before him to which the appellant was not a party. .
(b) That no show-cause notice was given to the appellant prior to his reversion and hence the entire proceedings against the appellant were violative of the principles of natural justice.
(c) That Kanoongo Service Rules of 1979 do not prescribe any qualifications for promotion to the post of Kanoongo (Girdawar).
(d) That the respondents have interpreted the law quite illegally and have made the order of his reversion without jurisdiction.
(e) That the appellant was promoted as Kanoongo in the year 1979 prior to the issuance of amendment in the Kanoongo Service Rules. The amendment could not be made applicable retrospectively even if it was assumed to be laying down some educational qualifications for the promotion to the post of Kanoongo.
(f) That the Kanoongo Service Rules, 1979 create a common service cadre of all the Kanoongos including Settlement Kanoongos and the appellant's promotion in the year 1979 could not be treated as out of the cadre.
(g) That the order of Secretary, Revenue Department referred to in the order of Commissioner, Revenue Department dated 13-12-1990 was not applicable to the appellant's case because it was made in the year 1989 much after his promotion.
(h) That the appellant's reversion had not taken place on the objections of anybody else and hence the impleading of any other Kanoongo as necessary party for seeking his relief against him was hardly necessary-
3. At the end of his appeal, it is prayed by the appellant that both the impugned orders be set aside and the appellant be restored to the post of Girdawar/Kanoongo w.e.f. The date of his reversion.
4. By a short order of this Tribunal dated 16-12-1991, the above-noted appeal was admitted for regular hearing before this Tribunal and the respondents were asked to submit their objections, if any, with regard to this appeal. On behalf of the respondents a preliminary objection was taken that the appeal was time-barred. While submitting parawise reply against - the present appeal, the respondents denied the allegations brought against them in the memo of appeal by the appellant and submitted that the appellant was holding the post of Girdawar purely on temporary basis and as such his reversion to the post of Patwari was quite in accordance with the rule of procedure.
5. We have examined the contents of appeal and copies of the orders placed on the file, which were issued by the respondents from time to time. We have also considered the arguments as were addressed by the learned counsel of each party before this Tribunal. Before recording the judgment on merits of the case, we would like to dispose of the preliminary objection of the respondents to the effect that the appeal is time-barred. It shall be noted here that the present appeal has been brought direct to this Tribunal after the departmental appeal of the appellant was dismissed by the Revenue Commissioner under the impugned order, dated 12-12-1990 a copy of which was sent to the appellant at his place of posting in District Kotli vide Commissioner office despatch No. 5561-62/90, dated 13-12-1990. In his memo of appeal, it is stated by the appellant that this impugned order was received by the appellant on 20-12-1990 at the place of his posting in District Kotli. This assertion of the appellant is duly supported by an affidavit of the appellant against which no counter-affidavit has been filed by the respondents. In absence of counter- affidavit to negate the version of the appellant, we shall have to accept the version of the appellant as correct and true. The copy of the order seems to have been despatched to the appellant through ordinary mail and in the ordinary course of business, the order must have taken seven days to reach the appellant at his place of posting at Kotli. Hence the objection is brushed aside and the appeal is held to be within time. There is nothing on the file that the appellant had firstly joined the service of the Revenue Department of Azad Kashmir. While going through the particulars noted in the general file of posting and transfers of Girdawars at pages 33 and 34, we find that the appellant has never been a member of regular service of Revenue Department. According to his own application placed at page 40 of the same file, he firstly joined as Patwari in Mangla Dam Organisation on 11-4-1959 and thereafter in the month of May, 1967 be joined the Settlement Department of Azad Kashmir. On 1-1-1979 he was temporarily promoted as Girdawar/Kanoongo and he continued as such in the same Department till 8-10-1985 the date on which he was transferred and posted as Girdawar in the Revenue Department by the Commissioner, Azad Kashmir area vide his Order No. Commissioner/4138-42/85, dated 8-10-1985. The appellant also continued as Girdawar w.e.f. 8-10-1985 to 9-8-1990 in the Revenue Department but he was reverted to the post of Patwari under the impugned order by the Deputy Commissioner/Collector, District Kotli for the reason that he was not fulfilling the required qualifications as were prescribed through an amendment, dated 20th June, 1982 effected in the Azad Jammu and Kashmir Kanoongo Service Rules, 1979.
6. It is well-established from the record that the appellant joined the service of Revenue Department on 8-10-198'5 when the amendment 1982 in Service Kanoongo Rules, 1979 had already taken place. It is unfortunate that the Office of Revenue Commissioner failed to bring to the notice of Commissioner the said amended rule of law at the relevant time when the appellant was taken in the service of Revenue Department as Girdawar. It is, no doubt, that at the relevant time of his posting as Girdawar in the Revenue Department, the appellant's entry in service of the Department was accepted in continuation of his former service the previous Department but that service being the service of a temporary Department does not count towards the service of Revenue Department without specific orders of the competent Authority. Under such circumstances, the appellant's entry in the Revenue Department shall have to be accepted by way of initial recruitment and in that event he was, of course, to remain on probation for a period of 2 years in the Revenue Department.
But it is strange enough that the appellant was reverted to the post of Patwari without issue of show-cause notice despite of the fact is that he had successfully completed the period of probation and had put in, bout four and half years service in the Department before his reversion had taken place. If the appellant is allowed his service that he has rendered in the Settlement Department then his total service as Girdawar comes to near about, Twelve years and at this stage of his service, the application of amended rule of law is definitely harsh especially in view of the fact that he had already qualified himself as confirmed Girdawar after having completed the period of probation satisfactorily. Hence we are of the view that the application of the amended rule of law at this stage of service to which the appellant had reached must not be applied.
7. It is argued on behalf of the respondents that the appellant was required to implead Girdawars who were benefited by his reversion so that at the event of his appeal being successful, his grievances may be remedied in accordance with law. But the appellant having failed to, bring some of the Girdawars on record was not entitled to seek any relief at this forum for the reasons that the newly-promoted Girdawars were the necessary parties to be brought on the record and hence the appeal is not maintainable. We cannot contribute to this view that the appeal must fail because somebody else was a necessary party and the appellant failed to bring him on record.
The appellant can seek his remedy against the present respondents without impleading any other civil servant in his appeal. Hence the argument is rejected for being devoid of force.
8. For the above reasons, we allow this appeal and order that the appellant shall be reinstated on his post w.e.f. The date of his reversion alongwith all service benefits. No order as to the costs.