1. ' Kh. GHULAM QADIR (MEMBER).-Appellant Sardar Sajawal Khan preferred this appeal under section 4 of the Service Tribunal Act, 1975 wherein Government Order date' 3rd December, 1978, order of Asstt. Accounts Officer No, 8967 dated 24th June, 1981 and the order of Accountant-General, Azad Kashmir No, 5186 dated 13th October, 1981 have been challenged as ultra vires and illegal.
2. ' Briefly, the facts which compelled the appellant to knock the do r of the Service Tribunal for redress of his grievance are that on 8th December, 1975 the appellant was compulsorily retired from service with permission of one year's leave properatary to retirement, i,e, six months leave on full pay and six months leave on half pay under the relaxed rules. The appellant availed of the above- mentioned leave but some time later the respondent-Government revised its policy regarding the retirement of Government Servants and as a result the appellant was re-instated on his post on the recommendation of Review Board constituted for the purpose. The respondent-Government vide its order No, S&GAD 30282390/78, dated 3rd December, 1978 formulated a policy containing certain decisions for resolving disputes in respect of pay, leave and recovery of overpaid amounts etc. Arising out of re-instatement policy of the Government about the officers retired earlier. In pursuance of the said decisions the Asstt. Accounts Officer vide his order dated 24th June, 1981 ordered recovery of an amount of Rs, 3,532 from the salary of appellant determined to have been overpaid to the appellant during the period of his retirement. Feeling aggrieved by this order the appellant submitted an appeal to the Accountant-General of Azad Jammu and Kashmir on 21st August, 1981. The Accountant-General vide his order No, 5186, dated 13th October, 1981 informed the appellant that he may seek redress of his grievance from the Government as he was not the rule- making authority in that behalf.
3. ' It is in this background that having failed to seek redress at the hands of Accountant-General the appellant approached the Service Tribunal by way of an appeal.
4. ' I have heard the preliminary arguments advanced by the learned Counsel for the appellant and have also gone through the record of appeal.
5. ' To my mind, two important legal questions are involved in this appeal at this stage which fall within the scope of preliminary hearing. The first question is that whether an appeal before the Service Tribunal is tenable against the impugned Government Order No, S & GAD/30282390/78, dated 3rd December, 1978 without first availing of the departmental remedy of Review before the Government and the second question is that whether the departmental appeal filed by the appellant before the Accountant-General was filed within prescribed period of limitation. The learned Counsel for the appellant was confronted with the above-posed two legal questions and asked to address his arguments on these matters. As regards the first point, the learned Counsel for the appellant had nothing to say as to why departmental remedy of Review was not availed of as required under law. All that he said on this point was that appeal before the Service Tribunal to the extent of the said impugned Government order may be considered to have been withdrawn. As regards the other objection of limitation, the learned. Counsel for the appellant argued that under Article 49 of the K.S.R., the limitation fixed for preferring departmental appeal is ninety days from the date of communication of impugned order and accordingly the appeal was tiled within the prescribed limitation of ninety days. I am constrained to say that I have not been convinced by the contentions of the learned Counsel for the appellant. The appellant has challenged the Government order quoted above before the Service Tribunal without fulfilling the prerequisite condition of availing departmental remedy of Review before the Government aid required by law under section 4 of the Service Tribunal Act, 1975. Failure to comply with this imperative condition would certainly entail the dismissal of the appeal. Mere oral request on the part of Counsel for the appellant that Tribunal may consider the appeal against the A impugned Government order to have been withdrawn is not sufficient to cure the legal defect unless the appellant properly prayed for the amendment of the appeal withdrawing his prayer to the extent of the impugned Government order. Therefore, as the appeal stands, the same is not competent in view of the aforesaid legal position and deserves dismissal on this score alone.
6. ' Apart from this fatal objection, the appeal suffers from objection of limitation as well. If for the sake of arguments, it be assumed that the appellant was aggrieved by the order of the Assistant Accounts Officer dated 24th June, 1981 then the appellant was bound to avail of the departmental remedy of appeal before the next higher authority within the prescribed period of limitation which under section 2 of the Civil Servants Act, 1976 is fixed as sixty days from the date of the communication of the impugned order. The impugned order was passed on 24th June, ' 1981 and the departmental appeal was preferred before the Accountant General on 21st September, 1981, i,e, 21 days after the expiry of prescribed limitation of sixty days from the date of communication. The appellant has nowhere alleged that impugned order was communicated to him on any particular date from which date, the appeal falls within limitation. In the absence of any such assertion in the memorandum of appeal or any affidavit in support thereof the only inference that may reasonably be drawn under the circumstances of this case is that the impugned order was communicated to the appellant on the same day or at the best soon C after that day and not after 27 days of making the impugned order. As such, the appeal clearly falls beyond limitation fixed under section 21 of the Civil Servants Act, 1976 and Article 49 of the K.S.R. Is not applicable in this case as the Civil Servants Act has clearly replaced the K.S.R in respect of all the matters stated in the said Act and the argument of the learned Counsel for the appellant does not hold good as discussed above.
7. ' Hence in the light of the above discussion, the appeal suffers from the above mentioned legal flaws which are fatal to the appeals calling for the dismissal of the same.
8. ' Therefore, the appeal is dismissed in limine.