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R.A.No.325 of 1986, decided on 30th November, 1986.
‑‑‑S.4‑‑‑Civil Services Appeal Rules, 1977, R.4(a)‑‑Civil Procedure Code (V of 1908), O.VII, R.11‑‑Rejection of plaint‑‑Jurisdiction of civil Courts ousted in service matter‑Suit filed by petitioner for declaration that refixation of his pay at a rate lower than actually last drawn and consequent sanction of pension at a lower rate and recovery of arrear from pension were without lawful authority‑‑Two Courts below taking position that matter was covered by provisions of Service Tribunals Act, 1973 and rejecting plaint‑‑Matter related to changing terms and conditions of his service and petitioner having a remedy by way of appeal before Service Tribunal‑‑Order of Courts below rejecting plaint of petitioner, held, was justified‑‑Revision against such order dismissed in circumstances.
Petitioner in person.
Date of hearing: 30th November 1986.
The petitioner has felt aggrieved against the rejection of his plaint under Order VII, rule 11, C.P.C. and the maintaining of that order by the appellate Court.
The petitioner, who was the Central Government servant, had filed suit for declaration that the order of 21st July, 1970 was legal and valid and operative and refixation of the pay of the plaintiff/ petitioner at a rate lower than that actually last drawn by the plaintiff and consequent sanction of pension at a lower rate and recovery of Rs.843 from the arrears from the pension was without lawful authority.
The two Courts below took the position that the matter was covered by the provision of Service Tribunals Act, 1973 and Civil Servants Act,1973 and, therefore, the plaint was rejected.
Mr. Muhammad Asar, who has appeared in person, has canvassed before me that there was no written order after 21st July, 1970 and, therefore, he could not seek redress from the Services Tribunal. I do not agree with this interpretation. The action of the respondent in not giving benefit of the order of 21st July, 1970 to the petitioner was itself actionable by the petitioner before the Services Tribunal, as it had the alleged effect of changing the terms and conditions of his service. The rule 4 (a) of Civil Services Appeal Rules, 1977 itself provided that a civil servant shall be entitled to appeal to the appellate authority from the order passed by an authority, which alters to his disadvantage, his condition of service, pay, allowances or pension, etc. The fact that there was no written order passed, which prejudiced the plaintiff, cannot deprive the petitioner of the right of filing the appeal before the Service Tribunal if, for a fact, an action has been taken by the authority, which has altered to his disadvantage the pension of the petitioner. Therefore, Service Tribunal had the jurisdiction in the matter and not the Court. I am, therefore, clearly of the view that the two orders impugned before me were justified. The petitioner had a remedy of appeal before the Services Tribunal, if his pension had been altered to his disadvantage, and the order, which had allegedly been passed on 21st July, 1970 in his favour was not being given effect to by the relevant authority without the same having been set aside in due course of law.
Mr. Asar Hussain had relied upon a rule of the Tribunal, which enjoined the filing of a copy of the impugned order, which was sought to be appealed against. I am of the view that even an omission is an act and if there is actually prejudice caused to the petitioner by some omission or action of the relevant authority then he is entitled to file an appeal before the Tribunal even though he is not supplied a copy of a written order by the authority provided the petitioner can establish that in fact a prejudice has been caused to his rights in respect of the pension. The rule of filing of a copy cannot be enforced in a case where there is no order in writing, but action prejudicial to an employee is taken.
In this view of the matter, this revision application is found to be without merit and is hereby dismissed in limine.
C.M.A. 1276/86 is dismissed in consequence.
M.Y.H. /6‑K/Lb/S
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