' FAKHAR HAYAT (MEMBER-V).--- Brief facts of the case are that the appellant joined the Education Department as Subject Specialist in BS-17 and was ultimately promoted as Senior Subject Specialist in BS-19 vide Notification dated 4-2-2005. The respondent No,1 upgraded the post of appellant as personal to her from BS-18 to BS-19 vide order, dated 14-7-2005 in order to effectuate her promotion and the appellant submitted her charge assumption report to the respondent No,3 but it was returned vide memo. Dated 19-7-2005. The appellant agitated the matter before respondent No,1 who directed the E.D.O. Education, Lahore to get order implemented by the respondent No,3. So the appellant resubmitted her charge assumption report but no implementation was made. The Chief Minister vide directive dated 3-6-2005 approved the adjustment of the appellant in the same school namely Government Girls Higher Secondary School Dev Smaj Road, Lahore by upgrading the post from BS-18 to BS-19 as personal to her. But in the meantime the respondent No,4 viz. Mrs. Nighat Murtaza Senior Subject Specialist in BS-18 then working in the Government Girls Higher Secondary school Narang Mandi, Sheikhupura was transferred and posted at Government Girls Higher Secondary School Dev Smaj Road. In order to resolve issue about posting of the appellant against the upgraded post, the D.C.O. Initiated a summary for Chief Minister after whose approval the respondent No,4 was transferred to Government Girls Higher Secondary School Mori Gate, Lahore, vide order, dated 29-3-2006. The respondent No,4 filed a Writ petition in the Lahore High Court and the respondent No,1 gave her personal hearing. Thereafter vide order, dated 5-10-2006 it was observed by the Education Department that the appellant failed to get charge of upgraded post and in the meanwhile the respondent No,4 occupied the same. It was further observed that recommendation of the Provincial Selection Board was valid for one year only therefore, the appellant was not eligible for adjustment in BS-19. So the D.C.O. Was directed to adjust the appellant against a vacant post in BS-18 while the respondent No,4 was allowed to continue as Senior Subject Specialist at Government Girls Higher Secondary School Dev Smaj Road, Lahore. It was added in the said order that the case of the appellant for promotion would be placed before the Provincial Selection Board.
The appellant submitted a representation for withdrawal of order dated 5-10-2006 to the respondent No,1 who turned down the request vide order, dated 22-12-2006. The appellant by way of this appeal has assailed both the orders dated 5-10-2006 and 22-12-2006 with the request for direction to the respondent No,3 to accept her joining report already submitted and further direction for payment of her withheld salaries.
2. The respondents submitted their parawise comments by opposing the appeal. It was contended that on promotion when appellant was relieved she was posted at Government Girls Higher Secondary School Ahmad Abad and the respondent No,4 joined the school at Dev Smaj Road on 1- 7-2005. It has been reiterated that since the promotion of the appellant could not be actualized after one year therefore, it had become ineffective and that her case for promotion would again be placed in the forthcoming meeting of the Provincial Selection Board whereafter she could seek pro forma promotion. Preliminary objection has also been raised that the appeal is barred under section 4(b) of the Punjab Service Tribunals Act, 1974.
3. Arguments advanced on behalf of the parties have been considered and available record gone through.
4. The learned counsel for the appellant has explained that section 4(b) of the Punjab Service Tribunals Act, 1974 is not applicable to the case of the appellant because the appellant already stood promoted and the only question was with respect to implementation of promotion order. He explained that there was no such law or rule according to which the appellant was not eligible for adjustment in BS-19 after a lapse of period of one year. The learned counsel for the appellant referred to Notification No,SO(S)/18-3/70, dated 5-7-1978 (Services, General Administration and Information Department) according to which the cases of the officers cleared for promotion by Provincial Selection Board/Departmental Promotion Committee who were not promoted within one year should be put up again before, the relevant Selection Board/Promotion Committee for a fresh decision. According to learned counsel for the appellant these instructions contained in the said Notification were not applicable to the case of the appellant as her promotion Notification had since been issued.
5. Question of law has been raised before the Tribunal by the respondents that the appellant had not availed right of appeal before the next higher authority as envisaged under section 21 of the Punjab Service Tribunals Act, 1974 and as such the appeal is barred under section 4(1)(a) of the Punjab Service Tribunals Act, 1974. The learned counsel for the respondent No,4 has referred to Dr. Zafar Hussain Iqbal v. Governor of the Punjab through Chief Secretary, Government of the Punjab, Lahore and 2 others 2005 PLC (C.S.) 724 (Punjab Service Tribunal) in support of his contention and argued that the appeal being not competent is liable to be dismissed.
6. The learned counsel for the appellant on the other hand has submitted that as a matter of fact a representation was filed before Secretary to Government of the Punjab School Education Department and that in case he was not Appellate Authority he should have forwarded the same to the concerned authority. In this context the learned counsel for the appellant has referred to Federation of Pakistan v. Muhammad Azam Javaid and others 1988 SCMR 1458 wherein it was enunciated that if the departmental appeal or representation etc. Is made to wrong quarter it is duty of authority receiving the appeal/ representation or review etc. To forward it to proper authority for processing it according to rules. In this view of the matter it will be deemed that the representation dated 11-10-2006 submitted by the appellant to the Secretary School Education Department shall still be deemed to be pending and proper course would be that the Secretary Education (School Wing) should forward the same to the next higher authority for decision of the representation of the appellant in accordance with the law. Preliminary objection raised by the respondent is decided accordingly. As a result this Tribunal shall not embark upon the exercise with respect to discussing the other niceties of parties' contentions.
7. For what has been discussed above the order, dated 22-12-2006 by Education Department (School Wing) purportedly issued by Section Officer without mentioning that he was conveying the order of some superior authority shall be deemed to be non-existent. The Secretary to Government of the Punjab Education Department shall forward the representation dated 11-10-2006 of the appellant to the next higher authority under intimation to the appellant for its disposal in accordance with law. In case the appellant is aggrieved by any adverse order of the departmental appellate authority or if the aforesaid representation is not decided within the statutory period, she may again avail remedy provided to her under the law. The appeal is disposed of.