1. CHAUDHRY KARAM DAD KHAN (MEMBER)--The appellant Muhammad Siddique a civil servant then serving as Sadder Muhasib in the office of Deputy Commissioner Poonch was retired from service vide Government Order No.SM-684-87/80 dated 3-4-1980. At that time, he had completed 25 years of service qualifying for pension. He was given full benefit of pension as if he had served for 30 years. He was also allowed the benefit of leave due to him under rules and to reside in Government Residential Quarter till the expiry of such leave provided such quarter was already in his possession as allottee.
2. By virtue of this appeal, directed under section 4 of the Azad Jammu and Kashmir Service Tribunal Act, the appellant has challenged the validity of impugned order of retirement and Order No.A/(8)-21/SM/83 issued on 1-1-1984, whereby per appellant review application filed by the appellant before the Government to review the impugned order was rejected. He has prayed for the cancellation of the impugned order and to re-instate him as Office Superintendent to the post against which he was promoted vide Government Order No. a(8)-21/SM/41-48/81 issued on 4-1- 1982.
(i) After the issuance of impugned order the promotion of appellant against the post of Office Superintendent indicates that appellant is efficient and fit to serve. Order of retirement is thus admittedly not issued in the public interest;
(ii) The annual confidential reports were not conveyed to the appellant and this very fact shows that there were no adverse remarks against the appellant; (i.e) That the impugned order of retirement was passed in the absence of appellant. He had not been given an opportunity to present his case.
3. It is also averred that appellant was retired in the public interest on completing 25 years service qualifying for pension, therefore, he has no right to appeal. In the written objections it has also been contended that appellant was promoted on seniority basis and this order of promotion does not negate the order of retirement.
4. The respondent attached photostat copy of Government Order No.A(8)/SM/2235-38/81 dated 22- 7-1981 and copy of departmental appeal/review petition with written objections.
5. The appellant in his replication submitted on 14-2-1982 did not refute the alleged fact of rejection of review petition on 22-7-1981 vide Order No.A(8)/SM/2235-38/81. He replied that this order was not communicated to him. On being informed the appellant had filed this appeal within time. The alleged fact of filing review application with the respondent beyond time has also not been replied by the appellant. Other facts, which should have been entered in the memorandum of appeal as grounds of objections were also entered in the replication. Such facts need not to be stated here. In the light of memorandum of appeal, the written objections and the replication, the questions which arise for determination are jotted down below:-
(a) Whether the review petition before the departmental authority was preferred beyond time;
(b) Whether the present appeal is not competent on the face of the fact that order dated 22-7-1981 has not been challenged;
(c) Whether the impugned order is not made in the public interest.
6. The appellant and the counsel for the respondent were heard. The appellant has also sent written arguments. Appeal file and record pertaining to the appellant perused.
7. The appellant in replication has replied that the original order takes effect from the date, the leave availed by him expired i.e. 9-5-1981. The version of appellant is not correct one. The original order takes effect from the date he was relieved of his duty and proceeded on leave. In appeal or in replication, the appellant does not disclose the date of the communication of the order as well as the date he was sent on leave. In the written arguments filed by the appellant on 29-11-1986, it is disclosed that the appellant availed the benefit of leave from 8-5-1980. This shows that the applicant admit that the original order was communicated to him on 8-5-1980 and on this very date this order was given effect for the purpose of leave. The appellant accepts the communication and notice of a part of the impugned order concerning the benefit of leave from 8-5-1980 and rejects the alleged notice and communication of the other part of the order concerning the retirement. After availing of the leave in pursuance of the order, the appellant is estopped from challenging the communication and effect of the order because he cannot on one hand term the order to be communicated for getting the benefit and on the other hand term the same as uncommunicated. One cannot play hot and cold in the same breath.
8. The upshot of above discussion is that the original order was communicated and given effect on 8-5-1980. The appellant was allowed to avail the remedy by filing review application before 8-8- 1980. He has failed to seek the remedy in time and thus the review application filed by him was belated one. That was liable to be rejected. The question at No.1 is answered in affirmative.
9. The perusal of record in respect of second and third question shows that the review petition was dismissed on 22-7-1981, by the departmental authority. The subsequent order dated 1-1-1984 was only an information conveyed to the appellant in response to a query made by him. The order dated 22-7-1981 also purports to have been endorsed to the appellant. This order even if remained dorment as claimed by the appellant, came to his knowledge on 19-1-1985, when the written objections were filed by the respondent and the copy of order dated 22-7-1981 was placed on record. It was held by the Supreme Court of Azad Jammu and Kashmir in the case Fida Muhammad Rathore v. Azad Jammu and Kashmir 1983 PLC 256, that orders on successive applications are not the final orders, rather first orders passed by the competent authority on a review petition is final order and the appeal before the Tribunal under section 4 can only be brought against final order. The letter dated 1-1-1984 from the very language used in it does not show that it was an order. It is just a letter addressed to the appellant. In the case of Malik Rehmat Din, this Tribunal dismissed his appeal for the reason that he had not challenged the final order and appeal in respect of a subsequent letter of information could not be treated as an appeal against the final order. It was further held that the time running after the date of final order upto the date of any subsequent proceeding cannot be deducted. The time taken in purusing a remedy not allowed by law cannot be excluded. The view taken by the Service Tribunal in that case was upheld by the Supreme Court vide its judgment dated 24-5-1986 in the Civil Appeal No.7 of 1986. In this view of the matter, the appeal brought before this Tribunal is incompetent as it is not filed against the final order.
10. The assertion that the appellant was promoted to the post of Superintendent on 3-6-1982 and thus he was efficient and fit for retention is not tenable. The ex-post promotion was allowed in consequence of an appeal against Muhammad Anwar on the basis of seniority. This act of the respondent was a favour to the appellant mainly intended to give him financial benefit and does not speak of the further suitability of the appellant for the job. Such an act proves the bona fide approach of respondent in favour of the appellant.
11. So far as the question of public interest is concerned the Government ordinarily is the sole Judge of the public interest and the Tribunal does not interfere with such an order unless there is an allegation that the order is mala fide or has been passed in colourable exercise of power. The Supreme Court of Azad Jammu and Kashmir has resolved this point, in the case of Mir Muhammad Sharif v. Azad Jammu and Kashmir Government PLD 1986 SC (AJ&K)
87. It was held by the learned Judges at page 97 as under:- "We are of the view that under section 12 of the Civil Servants Act, Government or the competent authority, as the case may be, is the sole Judge as to whether the retirement of a civil servant is in the public interest or not. It is not possible for the Court to sit on judgment over the view taken by the Government in the matter. The Court would interfere only if a case of mala fide or colourable exercise of power is established. "
12. The appellant has neither challenged the length of 25 years service, nor the authority of respondent for passing the impugned order. There is no plea of mala fide or colourable exercise of powers in the written objections. The Government constituted a review committee to review the cases of retirement. The Committee reported and opined that the appellant Muhammad Siddique may be retired from service in public interest. The Government issued the impugned order on that report. We have examined the record pertaining the --appellant after which we are of the opinion that it cannot be said that the recommendations of the review committee for retiring the appellant in the public interest were unwarranted and unjustified. In view of this situation we affirm the report made by the review committee and action taken by the Government. The result is that we find the impugned order made in the public interest and thus decide this question at No.C against the appellant.
13. The case-law referred to by the appellant is not applicable for the reasons that the appeals filed by Abdul Rashid Mali and Muhammad Zamir Khan were preferred in time and suffered no technical defect as pointed out in this appeal. Furthermore, their retirement was not found to have been made in the public interest in the light of their service record.
14. The appellant in the written arguments has also questioned the provisions contained in section 12(ii) of Civil Servants Act and contended the enactment to be against the injunctions of Sharia and thus violative of section 31(5) of the Interim Constitution Act, 1974. This question was considered by the Supreme Court, A J and K while granting the leave to appeal in the case of Mir Muhammad Sharif v. Azad J and K Government on 13-1-1986. It was observed:- "So far as the question as to whether the provisions contained in section 12 of the Civil Servants Act are violative of section 31(5) of the Interim Constitution Act or for that matter against the injunction of Sharia is concerned, I am of the view that it is not necessary to resolve this point in this petition.
15. Section 31(5) does not declare a law against Holy Qur'an and Sunnah to be void. It stipulates that if any law is against Holy Qur'an or Sunnah that shall be brought in conformity with the Holy Qur'an and Sunnah. Until and unless a law repugnant to the injunction of Islam is amended, the Courts of law are to follow the codified law on the statute book. Thus, the argument that the action taken against the petitioner in pursuance of the provisions which in the estimation of the learned counsel for the petitioner is against the injunction of Islam is not tenable."
16. The result is we find this appeal is incompetent as well as without any merit which is dismissed with no order as to the costs.
17. A.A./54-S/Sr.A