ZAFFAR HUSSAIN MIRZA, J.--This appeal by special leave arises out of the order, dated 28-5-1978, passed by the N.-W.F.P. Service Tribunal, Peshawar, whereby the service appeal of Mian Amir Khisro, respondent No. 1, was allowed and the notification, dated 23-6-1976, was set aside.
2. The facts are that at the material the Muhammad Saddique, appellant and Mian Amir Khisro, respondent No. 1, were both in the service of the Government of N.W.F.P as Sub-Engineers working in Public Health Engineering Department. In the gradation list of Sub-Engineers working in the said department as it stood on 28-1-1975, the appellant was shown at No. 15, while respondent No. 1 was mentioned at No. 8. Respondent No. 1, so far as his educational qualification are concerned held the Diploma of Civil Engineering whereas the appellant held the Diploma of Mechanical Engineering. In the events that happened it seems that a separate cadre for constituting the Mechanical Sub- Division was proposed, with the result that the continued seniority of the officers' holding Civil and Mechanical Diplomas was split up into to parts, Part 1 Civil and Part II Electric/ Mechanical Sub- Engineers. A separate cadre was brought into being for Electric/ Mechanical Sub-Engineers as against the Mechanical Sub-Division. Consequently separate seniority lists for the to cadres of Diploma-Holders were prepared. By Office order, dated 23-6-1976, the appellant, said to be the senior most officer or the Electrical and Mechanical side was promoted as Sub-Divisional Officer, in the newly-created Electrical and Mechanical Sub-Division, Peshawar.
3. Respondent No. 1, being aggrieved by the aforesaid order, claiming seniority over the appellant, filed a departmental appeal. According to him as this appeal remained undecided on 15-4-1978, he filed an appeal before the Service Tribunal against the order, dated 23-6-1976. The appellant raised a preliminary objection on the ground that the appeal was the-barred. The Service Tribunal, however, overruled this objection for reasons which may be reproduced in their own words: ---The appeal was no doubt filed on 18-4-1978 but since no reply was given to the appellant he could appeal to the Tribunal at any, the after the expiry of 90 days from the date when he submitted the appeal/ representation to the competent authority; in the present case he sent representations to both the respondents viz. Respondents 1 and 2 and none of them responded. So in the circumstances we hold that the appeal is not the-barred."
On the merits the learned Tribunal was of the view that the splitting up of the Department into to parts, namely, Civil and Mechanical, was against the terms and conditions of service of respondent No. 1 and other officers similarly situated, therefore, the said respondents could not be excluded from being considered for promotion to a post thus reserved for officers in the Mechanical Section on the ground of ineligibility. It was held that the action of bifurcation with the consequential measures taken by the Government was in violation of the Service Rules. On these grounds the order of promotion of the appellant was struck down as bad in law and it was directed that the "names of all eligible members of the service should be considered for the purpose of promotion on the basis of seniority-cum-fitness principle."
4. Leave was granted firstly to consider the contention that the notification under which the appellant was promoted having been issued by the Secretary to Government, the (departmental) appeal should have been filed before the next higher authority, namely, the Government and not to the Chief Engineer as done in the present case; and secondly' that even if this appeal was treated to be a proper departmental appeal, the appeal before the Service Tribunal against the impugned order, dated 23-6-1976, was filed nearly to years thereafter and was, therefore, clearly the-barred.
5. We have heard Mr. M. Bilal, learned Advocate, appearing for the appellant but no one appeared to contest the appeal on behalf of the respondents. After hearing the learned counsel, we have formed the view that appeal can be disposed of on the preliminary point of limitation and therefore, we do not propose to determine the other question of law on which leave was granted.
6. It will appear from the portion of the impugned order in this appeal reproduced above that the learned Service Tribunal was of the view that once an aggrieved civil servant files an appeal.
Review or representation to a departmental authority and such appeal, review or representation remains undecided, the civil servant filed an appeal before the service Tribunal at any the after the mandatory waiting period of ninety days has elapsed. We regret our inability to subscribe or uphold this view of the law, section 4 of the N.-W.F.P. Service Tribunals Act, 1974, clearly prescribed a period of limitation, namely, thirty days from the date of communication of the order appealed against. The proviso (a) to section 4, however, prescribes mandatory condition for filing an appeal to the Service Tribunal by providing that where an appeal, review, or representation is provided, an aggrieved civil servant must file such an appeal, review or representation and await the decision thereon for a period of ninety days. If then he does not wish to wait any further for the decision of the concerned departmental authority on his appeal, review or representation he can file an appeal from the original order to the Service Tribunal. But notwithstanding the mandatory waiting period the limitation prescribed in the main enacting part of section 4 is applicable and the appeal has to be filed within thirty days with effect from the date of expiry of such mandatory waiting period. This point has been conclusively determined in Kadir Bux v. Province of Sind 1982 SCMR 582, where in accordance with the majority view it was held that a clear period of 120 days after the filing of departmental appeal would be available to a civil servant for filing the appeal covered by proviso (a) to section 4 of the Tribunals Act. It is, therefore, clear that the learned Service Tribunal proceeded on a wholly misconceived view of the law in holding that there was no terminal point of limitation for filing appeal after a civil servant has waited for the mandatory period of ninety days.
7. The impugned order by the departmental authority was passed in this case on 23-6-1976, the departmental appeal was filed by respondent No.1 on 24-7-1976. While the appeal before the Service Tribunal was submitted on 15-4-1978, long after the maximum period of limitation of 120 days. There is no indication on the record that any application for condonation of delay was submitted alongwith the appeal. The appeal before the Service Tribunal was, therefore, hopelessly the-barred and we hold accordingly.
8. In the result, we set aside the order of the Service Tribunal and dismiss the appeal filed by the respondent before the Service Tribunal. Accordingly this appeal is allowed with no order as to costs.