This order will govern Appeals Nos.12, 13, 14, 15 and 16 of 1986 as the common points of law and fact are involved in these appeals. After hearing Mr. Manzoor Ali Khan on behalf of appellants, all the said appeals were dismissed in limine by short order dated 3-8-1986 for reasons to be recorded separately. Following are the reasons in support of the said short order.
2. The appellants were promoted as Senior Civil Judge/Assistant Sessions Judges superseding the respondents Messrs Gul Muhammad Bhatti, Qamar Ahmad Shaikh, Ali Nawaz Pirzada and Abdul Razzak Ansari and Miss Yasmeen Abbasi vide Sind Governments Notification No.S.-II-(S&GAD)
Court 1-6-1982 dated 14th July, 1982. Aggrieved by this notification, the respondents who were senior to the appellants in the cadre of Civil Judges made representation to the Government, which was accepted and Notification No.S.O.II(S&GAD)-Court-1-11-1985 dated 16th January, 1986 was issued allowing them the benefit of rule 1300 of the Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975. In other words their inter se seniority vis-a-vis the appellants in the lower cadre of Civil Judges was retained even in the higher cadre of Senior Civil Judges. It is this Notification which has been impugned in the above appeals.
3. It is an admitted position that as required by proviso (a) to section 4 of the Sind Service Tribunal Act. 1973 (hereinafter referred to as the said Act) the appellants have preferred no appeal or application for review or representation against the impugned Notification before approaching this Tribunal for relief. The contention of the learned counsel for the appellants was that since the impugned Notification was the result of the appeal preferred by the respondents, it was not necessary for the appellants to file any further appeal etc., in compliance of the above legal requirement. The learned counsel was, on his request, allowed adjournment to produce case law in support of his contention but ultimately he frankly conceded that he was unable to lay hands on any authority on the point in issue.
4. We have given our best consideration to the learned counsel argument that in the circumstances stated above the appellants were not under legal compulsion to exhaust departmental remedies before coming in appeal before this Tribunal. We regret that we have not been able to pursuade ourselves to share the view of the learned counsel. In our opinion proviso
(a) to section 4 of the said Act is a mandatory requirement of law which has got to be complied with before invoking the jurisdiction of this Tribunal. It is not correct to say that the appellants stood relieved of the compliance of the above legal requirement because the impugned Notification was in the nature of appellate order having been passed in appeals, filed by the respondents. Even if the respondents' representation against their supersession is regarded as appeal, yet the order passed thereon cannot be held as appellate order for appellants as it was not passed on any appeals filed by them. Since they were aggrieved by the said order for the first time, it was an original order for them and it was yet to be challenged by them in appeal or as the case may be in review application. Moreover, it was issued in their absence and behind their back. In other words, they were not given show-cause notice before issuing of the said notification the appellants had obviously statutory right of challenging that notification in appeal or by preferring review application. In this connection reference may be made to section 23 of the Sind Civil Servants Act, 1973 which reads as under:- "(1) where a right to prefer an appeal or apply for review in respect of any order relating to the terms and conditions of his service is provided to a civil servant under any rule applicable to him, such appeal or application shall except as may be otherwise prescribed, be made within thirty days of the date of such order.
(2) where no provision for appeal or review exists under the rules in respect of any order of class of orders a civil servant aggrieved by any such order may within 30 days of the communication to him of such order make a representation against it to the authority next above the authority which made the order: Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade."
5. It is clear from the above provision of law that if appeal or review is provided to a civil servant under any rule such appeal or application is to be made within 30 days of the impugned order. In case no such appeal or review is provided even then the aggrieved civil servant has been given right to make representation against the order by which he is aggrieved. As required by proviso (a) to section 4 of the Sind Service Tribunals Act, 1973, the aggrieved civil servant has to first exhaust the said departmental remedy before filing appeal in this Tribunal. Admittedly, the appellants had not challenged the notification by which the respondents have been allowed seniority over them in the cadre of Senior Civil Judges before any departmental authority and as such they have not availed the departmental remedy. Consequently, their appeals are hit by the said proviso and are not maintainable. Accordingly they were dismissed in limine.
A. E.