1. BASHARAT AHMAD SHAIKH, J.---This appeal by leave of the Court has been filed to challenge the order passed by the Service Tribunal on 17th of June, 1996 by fourteen civil servants who were not party to the appeal decided by the Service Tribunal. Three of the appellants are Additional Secretaries while rest of them are Deputy Secretaries. They want vacation of the order of the Service Tribunal by which the appeal filed by respondent Abdus Sami Khan was accepted. The ground advanced by them to show their locus standi to file the present appeal that the effect of the order under appeal is that they (Appellants) have become junior to respondent Abdus Sami Khan.
2. 2.The point on which we propose to decide the appeal is short ---but facts are lengthy which must be noted for proper appreciation in short the facts are that respondent was appointed as Secretary of the Azad Kashmir Mineral and Industrial Development Corporation on 30th of January, 1 976. He was subsequently appointed as Section Officer in the Secretariat on 27 July, 1976. By order passed on 18th of October, 1976 it was declared that respondent's appointment as Section Officer shall be deemed to be on transfer. As Section Officer the respondent was deputed to training in Central Training Institute but he could not succeed in the test conducted after completion of the training and was, for that reason, relieved from service or 14th of December, 1977.
3. He preferred a review petition which was rejected. He challenged his removal from service by filing an appeal before the Service Tribunal. The appeal was rejected on 5th of March, 1985 on the ground that the respondent was an employee of the Azad Kashmir Mineral and Industrial Development Corporation and, not being a civil servant, could not invoke the jurisdiction of theth Service Tribunal. An appeal brought to this Court met the same fate, but on, the ground that it was the-barred. The judgment was announced on 11th October, 1986 with which the first round ended.
4. The respondent had remained out of service for more than thirteen years- when on 25th of March, 1991 a Government order was issued whereby the order of 14th of December, 1977 .By which respondent had been removed from service was cancelled and he was reinstated as Section Officer with full back benefits. Including pay, allowances, seniority and promotion etc. However, this order was modified by another order issued on 16th of May, 1991 purporting to be in exercise of section 22 of the Azad Jammu and Kashmir Civil Servants Act which confers powers on the Government to deal with the case of any civil servant in such manner as may appear to it to be just and equitable. By this order the earlier order of 25th of March, 1991, reinstating the respondent with full back benefit, was cancelled and instead it was ordered that the respondent shall be deemed to have been reinstated on the conditions that the period spent by him outside service shall be treated as leave with or without salary, according to entitlement, and the period of absence shall not be treated towards seniority. Respondent filed a review petition on 14th July, 1991. It is claimed that the Special Assistant of the Prime Minister accepted the review petition on 13th of February, 1993 to exercise of powers delegated to him by the Government, but his order was not issued.
5. However, on 20th of July, 1994, a Government order was ultimately issued by which the review petition filed by the respondent on 14th of July, 1994 was accepted and it was decided to protect the increments granted to the respondent for the period of absence and also to count the period of absence from 14th of December, 1977 to 25th of March, 1991 towards pension. It was further ordered that the case of promotion of the respondent to the post of Deputy Secretary on priority basis shall be sent to the Selection Board for decision on merit " in order to redress the injustice meted out to the respondent. "
6. 4.The respondent filed appeal before the Service Tribunal on 22nd of August, 1994. The appeal was filed against the order of 16th of May, 1991 whereby the order of 25th of March, 1991 (reinstating the respondent with full back benefits) was cancelled and submitted by another order of reinstatement treating the period of absence as leave. However, in the prayer clause of the memorandum of appeal it was also prayed that direction may be issued to the Government to implement the order of Special Assistant passed on 13th of February, 1993. It was further prayed that "Consequently order dated 20th of July, 1994 may accordingly be modified". The Service Tribunal has accepted the appeal and has vacated the order of 16th May, 1991. It has restored the order of 25th of March, 1991 from the date of its inception. The result of the order under appeal is that the respondent stands restored to service from 14th of December, 1977 with full back benefits meaning thereby that he shall not only be entitled to receive salary, increments etc. But his seniority, which had been taken away by the order of 16th of May, 1991, stands restored. The appellant seek vacation of this order.
7. 5.The locus standi of the appellants is grounded on the fact that the judgment of the Service Tribunal has made the respondent senior to the appellants, who have been meanwhile promoted to higher posts. In fact it is claimed by them that they should have been made party in the appeal filed by the respondent because the prayer made in the appeal was adverse to the service rights of the appellants and no effective order could be passed in their absence. They claim that judgment of the Service Tribunal is liable to be vacated on this short ground. It is also stated by them, which is not denied by the respondent, that they had filed review petitions before the Government against the order of 25th of March, 1991 and it is claimed that the order of 25th of March, 1991 was substituted by the order of 16th of May, 1991 as a result of the review petitions filed by the appellants. .
8. 6.The learned counsel for the respondent, Raja Muhammad Hanif Khan, raised a preliminary objection that the present appeal is not maintainable. He contended that the appellants filed review petitions against the order of 25th March of 1991 whereby the respondent was restored to service with full back benefits, including seniority, but they did . Not file appeal before the Service Tribunal within a period of 120 days which is allowed by law and thus they acquiesced in the order.
9. He then contended that it was wrong that the order 25th of March, 1991 had been cancelled on the review petition filed by the appellants. He took us through the cancellation order passed on 16th of May, 1991 to contend that the order was passed under section 22 of the Azad Jammu and Kashmir Civil Servants Act and not by accepting the review petitions filed by the appellants. He relied on Rehmat Ullah Zia v. Aziz-ud-Din Qureshi (1993 SCR 208), Asif Majeed Khan v. Tahir Ayyub Abbasi (1994 PLC (C.S.) 1514) and Muhammad Ashraf Kayani v. Azad Jammu and Kashmir Government (1984 PLC 561). In the judgments of Rehmatullah Zia and Asif Majeed it has been laid down by this Court that appeal before the Service Tribunal can be filed within 30 days from the date of the communication of the order and a further period of ninety days can be added if appeal, review etc. Where maintainable, has been filed. In Ashraf Kayani's case it was laid down by this Court that even a void order must be challenged if it is intended to get rid of its effects.
10. 7.In our view the contentions of the learned counsel for the respondent have no merit. This Court has firmly settled the legal principal that if a person is not a party before the High Court or the Service Tribunal but feels aggrieved by a judgment he can file appeal to this Court. The latest case on the subject is the judgment reported as Dr. Muhammad Sarwar v. Dr. Muhammad Sharif Chattar (1995 SCR 292). Dr. Sarwar was not impleaded as a party in a writ petition filed by Dr. Sharif Chattar which was accepted. This Court entertained the appeal filed by Dr. Sarwar on the ground that his seniority had been adversely affected by the order passed by the High Court. After examining merits of the case, the appeal filed by Dr. Sarwar was accepted and the order passed by the High Court was vacated.
11. 8.The order under appeal has restored the seniority of the respondent with effect from 14th December, 1977 by counting fourteen years period spent by the respondent outside service.
12. Seniority is likely to be followed by the respondent's promotion. The appellants are therefore, clearly adversely affected by the order and in law a right resides in them to file appeal to have it vacated.
13. The appellants promptly filed review petitions to challenge the order of 25th March, 1991 and the period of 120 days allowed for filing appeal to the Service Tribunal had not run out when the aforesaid order was withdrawn on 16th of May, 1991. Therefore, there was no occasion for them to file appeal to Service Tribunal. Now the Service Tribunal has restored the order of 25th of March, 1991 by which the period during which the respondent remained out of service shall be counted towards seniority and for promotion. Clearly the appellants have been adversely affected by the restoration of the order of 25th of March, 1991 which has been ordered by the Service Tribunal. This undoubtedly gives a fresh cause of action to the appellants. The appeal filed by them is maintainable because they ate aggrieved by the order of the Service Tribunal.
14. 9.Raja Muhammad Hanif Khan also attributed acquiescence to the appellants in view of the fact that they had not challenged the order of 16th of May, 1991 by which the order of reinstatement with full back benefits was substituted. In our view this does not create any hurdle in the way of the appellants to file appeal in the Service Tribunal. Order of 25th of March, 1991 was materially different from the order of 16th May, 1991 so far as the service right of the appellants were concerned. The former conferred right of seniority and promotion on the basis of the period during which the respondent remained out of service while the latter order took away these rights. Even if the appellants had not challenged the order of 16th of May, 1991 their right to challenge the restoration of the order of 25th of March, 1991 always retrained intact.
15. 10.Detailed arguments were addressed by the learned counsel for the parties on merits of the case.
16. It was vehemently argued by Mr. Ghulam Mustafa Mughal the learned counsel for the appellants, that in the previous round of litigation Service Tribunal had declared that the respondent was an employee of Azad Kashmir Mineral and Industrial Development Corporation and was not in Government service and appeal brought to this Court was dismissed, through on the ground of limitation, and thus the judgment of the Service Tribunal attained finality, therefore, the Government was legally bound by the judgment. It was argued that different orders passed by the Government about respondent's reinstatement in Government service were passed earlier. In light of this of the respondent to Government vacated on this short ground. It was also argued that the respondent filed a review petition against the. Order of his termination which was rejected on 16th August, 1982. Subsequently appeal was taken to the Service Tribunal and this Curt. Law only permits one review petition to a civil servant but the respondent again filed another representation on 27th of February, 1990 which was not maintainable -for to reasons.
17. Firstly because a representation lies to a higher authority and does not lie when the order has been passed by the Government. Secondly because it was filed after twelve years: He cited Fida Muhammad Rathore v. Azad Government of the State of Jammu and Kashmir 1983 PLC (C.S.) 256 and Federation of Pakistan v. Muhammad Azim Khan (1989 V MR 79). Raja Muhammad Hanif Khan repudiated all these points. ' "
18. 11.The learned counsel for the appellants also raised the points of limitation. He pointed out that the respondent filed appeal before the Service Tribunal on 22nd of August, 1994 against Government Order passed on 16th of May, 1991 which means that the appeal was filed after more than three years while the limitation prescribed by section 4 of the Service Tribunals Act is thirty days to which ninety days waiting period is added if a review petition, where maintainable is filed against the Government order. It was submitted by the learned counsel that the Government order of 16th of May, `1991 had attained finality three years ago, and the law cannot be stretched to make the appeal against this order to be maintainable before the Service Tribunal. The order of 16th of May, 1991, which was passed to supersede the order of 25th of March, 1991 (by which the respondent has been restored to service with full back benefits) was purportedly passed under section 22 of the Civil Servants Act which gives special powers to the Government to deal with the case of a civil servant to advance the ends of justice and equity. It is contended on behalf of the respondent that it was an original order against which a review was duly filed and was decided on 20th of July, 1994.
19. It was explained that the appeal was filed within the one month from that order. This argument was countered by the learned counsel for the appellants by contending that even if the respondent is treated as a civil servant in violation of the previous order of the Service Tribunal he could not file second re4iew petition because the first review petition had been filed by the appellants which resulted in the cancellation of the order of 25th of March, 1991 by order of 16th of May, 1991.
20. 12.Appeal before the Service Tribunal was filed by the respondent against the order passed on 16th of May, 1991 after more than three years According to section 4(1) of the Service Tribunal Act a civil servant aggrieved by any final order whether, appellate or original, can file appeal within thirty days. However, under proviso (a) when a review etc. If maintainable, is filed another period of ninety days is allowed. The judgment cited by the learned counsel for the respondent. Raja Muhammad Hanif Khan, namely, Rehmatullah Zia, and Asif Majeed are to the same effect.
21. Assuming that the review petition filed by the respondent against the order of 16th of May, 1991 was maintainable (which is strongly contested by the learned counsel for the appellant) the period of 120 days allowed by lain elapsed on 25th of September, 1991. In Shabir Ahmad v. Azad Government (Civil Appeal No.33 of 1996, decided on 17th December, 1996) this Court has laid down that a civil servant has to file appeal to the Service Tribunal l within 120 days and is not allowed by law to wait for the outcome of the I appeal, review or representation to the higher departmental authority and if a civil servant files appeal after decision of departmental appeal etc. It will be the-barred if filed after 120 days. In this view of the matter the appeal filed by the respondent before the Service Tribunal on 22nd of August, 1994 to challenge the order passed on 16th of May, 1991 was hopelessly the-barred. Therefore, Service Tribunal had no authority to order the vacation of this order and restoration of the order of 25th of March, 1991.
22. 13.Two other prayers were made in the appeal before the Service Tribunal. It was prayed that the Government may be directed to implement the order of the Special Assistant passed on 13th of February, 1993. As already mentioned in the earlier part of this judgment a copy of this order is included in the Service Tribunal file but it is not a certified copy. It is a copy which has been "attested" by the respondent himself as under Secretary of the Finance Department. It is admitted on behalf of the respondent that this order was never issued. A certified copy of this order, if it in existence, can only be issued by the office in which the original is retained. A civil servant is not allowed by law to take an unofficial copy of the official record and to attest it himself. Therefore, the copy-is inadmissible and question of ordering its implementation did not arise nor indeed has it been ordered by the Service Tribunal. Leaving that aside the legal position is clear that appeal before the Service Tribunal under section 4 of the Service Tribunals Act car. Be filed by an aggrieved civil servant but in the present case the respondent was not aggrieved by the "order of the Special Assistant" because it was favourable to him which is the reason why the respondent wanted its implementation. Apart from that the Service Tribunal has powers of getting its own orders implemented but has been given no authority to directly order the implementation of the order of Government functionaries.
23. 14.The third prayer in the prayer clause of the memorandum of appeal before the Service Tribunal was that "consequently the order of 20th of July, 1994 may be ordered to be amended". This prayer.
24. Was as a consequence of the easier prayers made in the appeal. Since the earlier prayers are being rejected by this order the question of "consequently" amending the order consequently of 20th of July, 1994 does not arise. It may also be pointed out that keeping in view contents of the order of 16th of May, 1991, the order of 20th of July, 1994 is favourable, and not adverse to the respondent.
25. Since the appeal before the Service Tribunal was barred by the, the present appeal is accepted and the order passed by the Service Tribunal is vacated. Consequently the respondent's appeal before the Service Tribunal stands dismissed.