1. SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).--This service appeal under section 4 of the Azad Jammu & Kashmir Service Tribunal Act (herein--after referred to as an Act) has arisen in the following circumstances :- The appellants and respondents Nos.4 to 7 were employees of the Education. Department.
2. Respondents Nos.4 and 6 were Senior Teachers while respondents Nos. 5 and 7 were Commerce and, Drawing Teachers respectively. Respondents Nos. 6 and 7 were granted pay scale of Rs. 300- 750 in the year 1974 and respondent No. 4 in the year 1973 on their passing B. Ed. Examination while the appellants were already in the said grade of pay on account of having passed B. Ed.
3. Examination earlier than the said respondents. Later on the pays of respondents Nos.4, 6 and 7 were fixed retrospectively in the aforesaid grade w. e. f. 6-6-1970, 1-6-1970 and 24-5-1971 respectively by respondent No. 2 on the ground that the respondents Nos.4 and 6 held certificates on Village-Aid Training while respondent No. 7 held Drawing Course Certificate as the wane were considered equivalent to Diploma of 1 year in Technical Education which was the prescribed qualification for the grant of said scale. Therefore respondents Nos.4 and 5 were granted Selection Grade w. e. f. 24-2-1973 and 4-10-1973 respectively vide Order No. Education/11205-86 dated 25-2- 1976, and were subsequently given officiating promotions on the posts of Head Master, vide Government Order No. Admin/373-79/975 dated 21-1-1975, (Annexures C & D with the memorandum of appeal respectively).
4. Feeling aggrieved by the aforementioned orders of retrospective fixation of pays and promotions the appellants have challenged the same on the following grounds :-
(i) That before fixation of pay of the respondents Nos.4, 6 and 7 retros--pectively in the grade of Rs.
5. 300-750, the appellants were senior to there in the said scale of pay and thus the said retrospective fixation of pay has adversely affected the seniority of the appellants viz-a-viz the said respondents.
(ii) That the pays of the respondents mentioned at (i) above. Were retrospectively fixed in grade of Rs. 300-750 in contravention of the Azad Jammu & Kashmir Education Department (Non-Gazetted Teaching Staff) Pay Revision Rules, 1970 as they did not possess the qualification of B. A./B. Sc. And B. Ed. Or B. A./B. Sc. With one year Diplomas in Technical Education on respective relevant dates and were mere Matriculates whose certificates in Village-Aid Training and in Drawing Course are not equivalent to the diploma of one year in Technical Education.
(iii) That Selection Grade to respondents Nos.4 and 5 was granted unlawfully because it was given to respondent No. 4 on the basis of his wrong fixation of pay in a particular grade retrospectively and as regards respondent No. 5 his date of entry in scale of Rs. 300-750 as Commerce Teacher could not be considered for the purpose of granting Selection Grade as Senior Teachers inasmuch as he being a Teacher in Technical line could not be treated at par with general line teachers.
(iv) That promotions of the respondents Nos.4 and 5 to the posts of Headmasters were also not lawful as the same were made on the basis of their seniority in the Selection Grade which was illegally granted to them as stated in (iii) above.
6. On the basis of the above allegations the appellants have sought the, following reliefs :-
(i) That the orders fixing the pay of the respondents Nos.4, 6 and " retrospectively in the grade of Rs.
7. 300-750 and their consequent seniority based on such fixation be set aside.
(ii) That the promotions of the respondents Nos.4 and 5 first to Selection Grade and then to the posts of Headmasters be set aside.
(vii) That the intended promotions of respondents Nos. 6 and 7 to Selec--tion Grade and then to the posts of Headmasters be stayed.
8. The respondents contested the appeal and put in written objections. The respondent Nos. 2 in his objections has contended that the pays of the respondents Nos.4, 6 and 7 in grade of Rs. 300-750 were rightly fixed retrospectively under the rules in the light of the new Education Policy as the said respondent fulfilled the required qualification of one year diploma in Technical Education laid down for grant of said pay scale to Senior Teachers. The other reason--dents confined themselves only to raising legal objections in their written statements which are mainly to the effect that the appeal suffers from the Defect of misjoinder of parities as well as causes of action ; that the orders of the promotions of the respondents Nos.4 and 5 first to the Selection Grade and then to the posts of headmasters are not appealable under the law and that the impugned orders of promotions of the said respondents to the posts of Headmasters being not final cannot be made the subject of appeal.
9. We have heard the learned counsel for the parties on legal points and have also gone through the relevant record. The objections raised on behalf the respondents that the appeal is not maintainable in its present form in--asmuch as it suffers from the defect of misjoinder of parties and causes of action has much force in it. It is an admitted position that the pays of the respondents Nos.4, b and 7 were retrospectively fixed in grade of Rs. 300-750 by the respondent No. 2 at different times and w. e. f. Different dates. Similarly the orders of the promotions of the respondents Nos.4 and 5 to Selection Grade and then to the post of Headmasters impugned in the appeal are of different dates anti were passed after lapse of considerable period. Moreover the respondents Nos. 6 and 7 were never promoted to Selection Grade or to the posts of Headmasters but they have also been impleaded as respondents and relief has been sought against them merely on the apprehension that they might be no promoted in the near future. Thus the different causes of action having arisen at different times have been joined together in this appeal and similarly different respondents have also been joined together who have no common interest in the relief sought by the, appellants. The case against each respondent is distinct and separate in its subject-matter from that of the other respondents. The orders of promotion to Selection Grade and to the posts of Headmasters impugned in this appeal relate only to respondents Nos.4 and 5 and do not concern other respondents. Similarly the impugned orders of fixation of pay in a particular grade with retrospective effect were not made in favour of all the respondents. For the above reasons the appeal is bad for multifariousness and accordingly not maintainable in its present form.
10. The next legal point which arises is as to whether or not the appellants before coming to this Tribunal have availed of the departmental remedy against the impugned orders by way of appeals, representations or review applications available to them under any law or rule. Copies of appeals, representations or reviews filed by the appellants against the impugned orders lave not been filed alongwith memorandum of appeal. In this regard the appellants in para 4 of the memorandum of appeal have stated that they had submitted an appeal to the Finance Secretary against the order of the res--pondent No. 2 regarding the fixation of pay of respondents Teachers in scale 300 750 retrospectively but the proceedings on the same were dropped by the short and male fide observation to the effect that "the matter pertains to the Education Department and the Accountant-General, and the Department may settle it". In para. 5 of the Sind memorandum it is further averted that the fact of the filing appeal/representation against the promotions of the reason--dents Nos.4 and a to the Selection Grade from the dates earlier than that of the promotions of appellants Nos. 1 to 4 to the same grade and representation against wrong fixation of pay is evident from the Directorate of Education No. Nil dated 11-1-1975 (copy Annexure E) but no decision has been taken so far. From the above contention of the appellants it is evident that in support of their plea of having availed of the departmental remedy against the impugned orders before approaching this Tribunal they have solely relied on a document marked as Annexure 'E'. We have carefully perused the above-stated Annexure but are unable to find anything in it which may substantiate the above contentions of the appellants. In Annexure `E' which appears to be a working paper prepared by Deputy Director Schools for some meeting the only mention in this respect is that the so many teachers have submitted representations/appeals against the grant of Selection Grade to Mr. Buddar-ud-Din respondent No. 4 and that the Accountant-General on the protect of the teachers had brought to the notice of the Finance Depart--ment the case of grant of pay to said respondent in grade 300-750 which replied to the referring authority that it would be better if the matter is settled between Education Department and Accountant-General's Department. The above reference in the working paper regarding the filing of appeals/represen-- tations does not, by any stretch of imagination, go to prove that the appellants had availed of the departmental remedy available to them under law or rules against the impugned orders before lodging the present appeal. It only indicates that a number of teachers had presented appeals representations only against the order of placing one of the respondents, namely, Buddar-ud--- Din in the Selection Grade and since none of appellants is specifically named in this reference as having filed the said appeals and representations so even it cannot be held that any one of the appellants had filed appeal or representation against the order of promotion of respondent No. 4 to the Selection Grade, what to speak of holding all the appellants having availed of the departmental remedy against all the impugned orders before seeking redress of their grievances before the Service Tribunal. No other proof in support of the plea of filing representations/'appeals against the impugned orders has been placed on record and the only one relied upon the memorandum of appeal, is, as stated above, of no hells to them. It is not the case of the appellants even that they had filed any review Petition against the order of the promotion of the respondents Nos.4 and 5 to the posts of Headmasters before the presentation of this appeal. Thus the appeal is not competent on account of the failure of the appellants to avail of the departmental remedy before coming to this Tribunal in view of the proviso `A' to section 4 of the Act which makes it incumbent upon the aggrieved civil servants to file an appeal, representation or an application for review to the departmental authority, in case such an appeal, review or representation is provided under any law, regulations or rules for the time being in force. All the impugned orders were either appealable or review against them was provided under the service rules in force at the relevant time but as stated above, the appellants-- or any one of them did not avail of the departmental remedy against any of the impugned order with the result that in view of the said proviso of section 4 of the Act they, are debarred from seeking the redress of their grievances before this Tribunal and appeal is incompetent.
11. Next point raised by the counsel for the respondents is that the appeal is not maintainable before this Tribunal on account of its having been filed against the promotion orders which are specifically exempted from the operation of section 4 of the Act which confers the right of appeal before this Tribunal to the aggrieved civil servants. This argument of the learned counsel for the respondent is also quite forceful, The proviso 'B' to aforesaid section of the Act clearly takes away the jurisdiction of Service Tribunal to entertain and hear an appeal against an order or decision of the departmental authority determining the fitness or otherwise of a person to be appointed to or told a particular post or to be promoted to higher post or grade. In the present appeal the orders of the promotion of the respondents Nos.4 and 5 to Selection Grade and then to the posts of Headmasters have beat challenged which definitely come in the category of orders determining the fitness or otherwise of the said respondents to be promoted to higher post or grade and thus cannot be made subject of appeal before this Tribunal in view of the above-stated provision of law.
12. Thus the appeal is also incompetent for the above reason.
13. The next objection taken on behalf of the respondents in regard to the maintainability of the present appeal is to the effect that the promotions of the respondents Nos.4 and 5 to the post of Headmasters which are also impugned in the appeal having been made on officiating basis and thus being temporary in nature and not final are not appealable as it is only the final order of the competent authority against which an appeal lies to the Service Tribunal. This argument has also much substance in it. As would appear from the order of the promotion of respondents Nos.4 and 5 to the posts of Head Master, a copy of which is Annexure 'D', the promotion of the said respondents were not only made in officiating capacity but were further subject to final decision regarding the seniority as well as to the recommendations of the Public Service Commission. This being the case the said promotions cannot be termed as final because apart from being officiating one's the continuation of the said respondents as Headmasters depended on the fulfilment of certain other conditions laid down in the impugned order of their promotion itself. Section 4 of the Act confers right of appeal on an aggrieved civil servant only against a final order, whether original or appellate made by the departmental authority in respect of any of the terms and condi--tions of his service but as the order of the promotion of the respondents Nos.4 and 5 to the posts of Headmasters lacks the element of finality or conclu--siveness it does not come within the ambit of the aforesaid section of the Act so as to be appealable before this Tribunal.
14. The upshot of the above discussion is that the appeal is not maintainable because (i) it has been preferred without in the first instance availing of the departmental remedy available under law or rules against the impugned orders; (4) it is against the orders of the competent authority determining the fitness or otherwise of the respondents Nos.4 and 5 to be promoted to higher grade or post; (iii) it is against an order of promotion to the post of Headmasters which is not final.
15. As the appeal has been found incompetent for the reasons stated above we think it would be an exercise in futility to give the appellants an option to amend their appeal on the ground of its being bad for misjoinder of causes of action and respondents.
16. The appeal is accordingly dismissed with no order as to costs.
17. The parties be informed of this order.
18. KH. GHULAM QADIR (MEMBER).-I agree.