RAJA BASHIR AHMAD KHAN (CHAIRMAN). ---This order will dispose of to appeals titled as Syed Imtiaz Hussain Naqvi v. Secretary, Tourism Wildlife etc. Appeal No.827 of 1995 and Ch. Abdul Aziz v.
Secretary, Tourism etc. Appeal No: 830 of 1995. These to appeals are decided through this consolidated judgment as the parties are the same and the parties are contesting the case on the same set of facts.
2. The appeal of Syed Imtiaz Hussain Naqvi is directed against Order No. DG No. 30 of 1993-94 under No. 605-11, dated 30-10-1993 whereby the respondent No. 4 was promoted as Senior Accounts Clerk against the upgraded post of Grade B-9.
3. The facts of this appeal are that the appellant joined service as Junior Clerk on 5-2-1979 in Grade B-5. He was awarded Selection Grade B-7 on 1-7-1987. The respondent No. 4 joined service as Junior Clerk on 5-7-1981 in Grade B-5 and he was temporarily given Grade B-7 on 23-11-1992. The appellant and respondent No. 4 were permanently promoted Grade B-7 through Order No. 68 of 1992-93 under No.2020-31/BIB, dated 15-3-1993. The respondent No. 4 Ch. Abdul Aziz was promoted as Senior Accounts Clerk against the post of Grade B-9. The post of Senior Accounts Clerk was originally in Grade B-7 and promoted to this post which was upgraded to Grade B-9 vide impugned order.
4. In appeal titled as Ch. Abdul Aziz v. Secretary, Tourism etc., brief facts are that the Department of Tourism etc. Was separated from the Department of Forests by Order dated 18-2-1992. On the establishment of the new Department Tourism etc. One post of Senior Accounts Clerk and to posts of Senior Clerks were to be filled up by promotion. The case of promotion of appellant, respondent No. 3 and one Khurshid Anwar was sent to Selection Committee and they were approved for the promotion and accordingly the orders of promotion of parties were issued. The appellant Ch. Abdul Aziz was promoted as Senior Accounts Clerk whereas respondent No. 3 was promoted as Senior Clerk in Grade B-7. The respondent No. 3 was assigned additional duties of Head Clerk in Department of Fisheries and he was allowed charge allowance against this post vide order which was issued under No. DG-33 of 1993-94 on 6-12-1993. The operative part of the order runs as under:--
5. The appellant and respondent No. 4 were declared fit to hold the posts of Head Clerk B-11 and orders of promotion were issued on 5-5-1994 and were made effective from 25-4-1994. The respondent No. 4 on 30-6-1994 submitted an application before Director-General Tourism and prayed for giving him promotion from 6-12-1993. The Director-General granted his prayer and he was given promotion as Head. Clerk B-11 with effect from 6-12-1993. This order was cancelled on the next day through Order No. 15 of 1994-95 issued under No. 283-87/B-Il-7/94, dated 25-8-1994. The respondent No. 4 filed a representation before the Director-- General Tourism who allowed (he representation of respondent No. 4 and he was promoted as Head Clerk with effect from 6-12-1993.
The appellant filed an appeal against this order before the Secretary of the Department and after exhausting the waiting period of ninety days has filed this appeal before the Tribunal.
6. The respondents in both the appeals have filed written objections and have denied the respective claims of the appellants.
7. We have heard the counsel for the parties and have gone through the record.
8. In appeal of Ch. Abdul Aziz v. Secretary Tourism etc. The main plank of attack of counsel for appellant is that the impugned order was issued by respondent No. 2 on a representation made by respondent No.3 against the order which was also passed by the respondent No. 3 (Director- General Tourism etc.) and, therefore, the order passed in representation is illegal; void and not sustainable. The counter-argument of the counsel for respondent No.3 is that the order dated 14- 11-1994 was passed, although on the representation of the respondent but the order was passed after hearing the parties and, therefore, this was a final order against which no appeal was competent before the respondent No. 1. The appellant should have directly come to this Tribunal for redress of his grievance.
9. The perusal of the record shows that the respondent No. 3 was entrusted with the additional duties of Head Clerk, Fisheries by an order-dated 6-12-1993. It was mentioned in the order that he would be entitled to get charge allowance of the post. This order is self-speaking in the sense that respondent No. 3 was not promoted against this post but he was given the charge of post and was allowed to draw the charge allowance. The respondent No. 3 filed an application to Director- General Tourism requesting that he should be promoted/appointed Head Clerk in Grade B-11 with effect from 4-12-1994. In fact, he wanted his promotion from 6-12-1993. On this application respondent No. 2 promoted respondent No. 3 as Head Clerk with effect from 6-12-1993. This order was, however, cancelled suo motu by respondent No.2 who passed Order No. 15 of 1994-95 on 25- 8-1994 whereby Order No. 6(J of 1992-93 issued on 5-5-1994 was restored. The respondent No. 2 filed a representation against this order before the Director-- General Tourism on 30-11-1994 and rafter hearing the parties the impugned order was passed and order dated 24-8-1994 was again made operative and Order No. 15 of 1994-95 dated 25-8-1994 was declared illegal and against the rules.
10. The provisions of representation have been made under section 21 of Azad Jammu and Kashmir Civil Servants Act, 1976. The section reads as under:-- 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 sixty 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."
Subsection (2) of section 21 deals with the representation. A representation is only competent where no provisions for appeal or review exist in the rules in respect of any order. It is also clear from subsection (2) of section 21 that a representation against such order can be made to the authority next above the authority which made order. It has also been provided under sub-rule (2) of Rule 9 of Azad Jammu and Kashmir Civil Servants (Appeal) Rules, 1991 that the provisions applicable to the appeal shall apply mutatis mutandis to the representations. The cumulative effect of these provisions of law is that an aggrieved civil servant is entitled to file representation to the appellate authority or the authority next above the authority making the order. The impugned order was made by Director--General on the representation of the respondent No. 3 which order could only be challenged through an appeal before an appellate authority or the authority next above the Director-General Tourism. The Director-General in representation could not cancel an order passed by him or by his predecessor-in-office. This illegal action of the Director-General could not attain the status of appeal if he allowed the parties an opportunity of personal hearing.
The order being patently illegal and void is liable to be set aside.
11. In appeal titled as Syed Imtiaz Hussain Naqvi v. Secretary Tourism etc. a preliminary objection has been raised by the counsel for respondents, which is to the effect that the Secretary of the Department was made party on 5-9-1995 whereas impugned order was passed on 30-10-1993.
The limitation against respondent No. 2 shall run from the date when he was made a party before this Tribunal. The appeal is hopelessly the-barred. As against this argument the counsel for appellant contends that Secretary of the Department is not a necessary party but a proper party.
The order was passed by the Director-General and he has already been made respondent in this appeal. From the record it is clear that an appeal against order of Director-General dated 30-10- 1993 has been filed before the Secretary of the Department. The Secretary may pass any order which he deems fit in the circumstances of the case. Since the Secretary of the Department is seized of the matter and he can Pass any order which may affect the service rights of the parties he, therefore, cannot be termed as a proper party. We are of the view that the Secretary of the Department is a necessary party and the limitation against him shall start running from the date when he was made Party in this Tribunal. This date is 5-9-1995. The impugned order was passed on 30-10-1993. This appeal is well beyond the period of limitation prescribed for filing the appeal before this Tribunal. This appeal is declared as the-barred and is, therefore, liable to be dismissed as such.
12. In view of the above discussion we dismiss the appeal of Syed Imtiaz Hussain Naqvi and accept the Appeal of Ch. Abdul Aziz and set aside the impugned order. The result is that appellant Ch. Abdul Aziz shall continue to enjoy its seniority in the Department. We make no order as to costs.