' ZAHEER-UD-DIN DAKAR, CHAIRMAN. -- Through the instant appeal filed under Section 4 of the Balochistan Service Tribunal Act, 1974 the appellant has sought the following relief:- "that the notification dated 30th September, 2015 may kindly be suspended/set aside and the appellant be allowed to perform his duties on the post of Chief Conservator Forest (South), Quetta in the interest of justice, equity and fair play."
2. The appellant being aggrieved of impugned Notification No, (SOA)1-1/2015/Fst:/4784-90, dated 30.9.2015, whereby, he has been transferred from the post of Acting Chief Conservator of Forests (South), Balochistan to Director Soil Conservator, Balochistan and in his place Mr. Taj Muhammad, Chief Conservator of Forests (B-20) has been posted [Note: Mr. Taj Muhammad, has not been made as party in the array of respondent], preferred instant appeal with contention, that the impugned notification has been made in violation of Rules and Regulations. Furthermore, the impugned notification is based on mala fide intention and ulterior motives of the official respondents. Thus, the same is liable to be set aside.
3. The respondents No, 1 and 2 strongly contested the appeal on legal and factual grounds by filing their parawise comments. Whereas, the respondent No, 3 in his PWC has admitted the claim of the appellant for setting aside of the impugned notification. It is necessary to mention here that the respondent No, 3 is not a necessary party, because in place of appellant, Mr. Taj Muhammad has been posted as Chief Conservator of Forests (South), and the respondent No, 3 was directed to continue as Chief Conservator of Forest (North), Quetta and he (respondent No, 3) is not effected from the impugned notification.
4. We have heard the learned counsel for the parties and have gone through the record of the case.
5. The record reveals that the appellant has opted to prefer departmental appeal on 5.10.2015, against the impugned notification dated 30.9.2015, and has filed instant appeal Before this Tribunal on 12.10.2015, within eight days of filing the departmental appeal, which is clear derogation of Proviso (a) of the Section 4 of the Balochistan Service Tribunal Act, 1974 under which elapse of 90 days from the date of preferring said departmental appeal/representation is mandatory.
Admittedly, at time of filing instant appeal, period of 90 days has not elapsed and departmental appeal has not been decided by the respondent No, 1 and the same is still pending. Therefore, the present appeal is pre-mature and not maintainable. On this point, we are fortified by the view taken by the Hon'ble Supreme Court of AJ&K reported in 2004 PLC (C.S.) 843, wherein it was held that:-- ' "---S. 4---Appeal before Service Tribunal---No appeal would be competently filed before Service Tribunal under Section 4---Unless two conditions were fulfilled; firstly the party availing the right of appeal should have availed departmental remedy; secondly ' that after availing departmental remedy, party should wait for a period of 90 days---If the departmental remedy availed was not decided within period of 90 days, then in next 30 days appellate jurisdiction of the Service Tribunal could be invoked---If the departmental remedy was not availed against order of Authority and appeal was directly filed before Service Tribunal same was not maintainable because appeal was statutory right which could be availed in accordance with prescribed manner---When an act was required to be performed in a particular manner, that act must be performed according to that manner of not at all.
' In another case reported in 2012 PLC (C.S.).507, the Hon'ble Supreme Court of Pakistan had made the following observations:-- ' "In presence of Rules providing departmental appeal, review or representation, aggrieved civil servant could not file appeal before Tribunal without first filing departmental appeal, review or representation and before expiry of period of 90 days of such appeal or review."
' Similar view was also taken by the Hon'ble apex Court in case reported in 2000 PLC (C.S.) 312.
6. Furthermore, the instant appeal is also not maintainable as per principle of mis-joinder and non- joinder of necessary parties, because as mentioned in para supra in place of appellant, Mr. Taj Muhammad, Chief Conservator of Forests (B-20), has been posted, but who has not been made as a respondent, whereas, the respondent No, 3 Mr. Zaigham Ali, is concerned he is not a necessary party, because he has not been posted in place of appellant and as per impugned notification he was directed to continue as acting Chief Conservator of Forests (North), Quetta. On the point of mis-joinder and non-joinder of necessary parties we are fortified by the dictum as laid down by the Hon'ble Supreme Court in 1982 CLC 1614, 1986 SCMR 680, 1987 MLD 15, 1996 CLC 1009 and 1997 MLD 1453.
7. In view of the above discussion it is clear that the appeal in hand is pre-mature and is not maintainable. Thus, the same is hereby dismissed. With no order as to cost. File after completion be consigned to record.