RAJA BASHIR AHMAD KHAN (CHAIRMAN): -This appeal is directed against the Order No. DDS/MD/726-29/92, dated 20-1-1992 passed by the Director of Education and also earlier order of Education Department dated 18-4-1989.
2. The brief facts of the case are that appellant joined Education Department as Primary Teacher on 3-4-1986. He was Matriculate with Science and later on improved his educational qualifications and now he is serving as a Junior Teacher in Government High School, Therian District Muzaffarabad. Respondent No. 4 obtained order secretly against a post of Senior Scale on 18-4- 1989. The respondent was reverted to a post carrying junior grade on 1-9-1992. But again the impugned order was passed whereby order dated 1-9-1991 was recalled and the respondent was allowed to retain his position in senior scale.
3. Appellant had earlier filed an appeal against Order No. DEO/2803--19/90, dated 23-9-1990 before this Tribunal. During the pendency before this Tribunal whereby respondent had been reverted to his original post of junior Teacher. The appeal was rendered infructuous and was filed accordingly. Respondent Tahir Ayyub by way of writ petition in the High Court had challenged abovementioned order dated 1-9-1991. This order was again withdrawn by Divisional Director.
Schools vide the impugned order dated 20-1-1992. A copy of the order was placed on record in the High Court. The writ petition became infructuous and was disposed by the High Court accordingly.
4. The appellant has prayed for the setting aside the orders dated 18-4-1989, 23-9-1990 and 20-1- 1992. Respondents have filed written objections wherein they have denied the facts stated in the memorandum of appeal.
5. We have heard the learned counsel for the parties and have gone through the record.
6. The learned counsel for respondents have raised a very important preliminary objection to the effect that the appellant without first exhausting his remedy before the concerned Departmental Authority has filed appeal before this Tribunal and in view of proviso (a) to subsection (1) of section 4 of Azad Jammu and Kashmir Service Tribunal Act, 1975 the present appeal is not competent.
Perusal of the available record shows that the appellant filed present appeal before this Tribunal on 7-5-1992. The appeal was fixed for preliminary arguments on 12-5-1992. Notice was issued to the counsel for the appellant for 24-5-1992. When the matter came for-preliminary hearing, Mr. Sardar Rafique Mahmood Khan and Mr. Farooq Hussain Kashmiri submitted `Vakalatnama' on behalf of respondent No.4. The appellant filed an application for withdrawal of the appeal. The learned Member of this Tribunal deemed it advisable to dispose of this application in the presence of the Chairman of the Tribunal who was on leave on that date. The disposal of this application was being adjourned and finally the date of 8-8-1992 was fixed for its disposal. In the meantime appellant had submitted another application for withdrawal of appeal on 2-6-1992. Both the applications dated 23-5-1992 and 2-6-1992 were disposed of by the Tribunal for the reason that the learned counsel for. Appellant did not press the applications and had stated that both the applications be dismissed. The applications were dismissed accordingly and the appeal was fixed for preliminary hearing on 12-8-1992. The learned Member proceeded to admit the appeal after hearing the counsel for appellant. In memorandum of appeal in para. (8) it has been stated as under:-- "That it is admitted fact that appellant has already availed of the departmental remedy by way of appeal hence the present appeal."
7. The appellant has not stated in the memorandum of the appeal as to when he filed appeal against the impugned order before the departmental authority. This in fact is an evasive assertion on the part of appellant and he appears to have tried to create an ambiguity in the case. The perusal of the record shows and it is also an admitted fact that appellant for the first time filed appeal before the Secretary, Education on 10-5-1992 which appeal is dated 7-5-1992 but. It is unsigned. He filed another appeal before the Secretary, Education on 20-5-1992 almost on the same grounds. It may be that the second appeal was filed to cure the defect' of being unsigned in the first appeal. We may treat the first appeal before the Secretary, Education as the proper one or the second appeal dated 20-5-1992 as such but the fact remains that appellant filed appeals before the Departmental Authority subsequent to the filing of appeal before the Tribunal on 7-5- 1992. In support of his contention the learned counsel for respondents have relied on a judgment of Supreme Court of Azad Jammu and. Kashmir in Mir Ghulam Nabi v. Secretary, Local Government etc. (Civil Appeal No. 14 of 1992). The appeal was dismissed on the sole ground that appeal filed before the Service Tribunal was incompetent. The provisions of proviso (a) to subsection (1) of section 4 of Service Tribunal Act are mandatory in nature and their non-observance by the appellant would render the appeal incompetent before this Tribunal. In order to avoid the consequence of the provisions of section 4 of the said Act and also to rebut the contention of the respondents the learned counsel for appellant has argued that the period of ninety days provided under the Act expired before the admission of the present appeal and, therefore, the incompetency so attached to the present appeal has been cured. The learned counsel has relied on 1990 PLC (C.S.) 145 and 1984 PLC (C.S.) 76.
8. The appellant in reported case of 1990 PLC (C.S.)145 filed the appeal before the competent authority but without waiting for its decision for ninety days he preferred appeal before the Service Tribunal. It was held hat the appeal was not mature at the time of filing of appeal but it had matured at the time of hearing because the period of ninety days had elapsed long before and the appellant had not received any reply. The appellant first filed this appeal in this Tribunal and subsequently filed departmental appeal before the Secretary, Education. The result is that it was not possible for the Department to consider the case of appellant. This view of ours is supported by the following letter No.E/S/3052/92, dated 23-7-1992 of Director, Public Instructions to Secretary, Education reproduced below: --.
It was clearly stated in the letter that as the appellant had approached the Service Tribunal, therefore, no action or comments were possible in this case. The Department has also been made incapable of deciding the departmental appeal because the appellant had filed the appeal before the Tribunal. The facts of the present appeal are distinguishable from the facts of the reported case. The authority relied upon by the learned counsel is, therefore, of no assistance to appellant.
The next authority 1984 PLC (C.S.) 76 relied by the learned counsel is also not helpful to appellant for the reason that there was no other remedy available to the appellant except by way of appeal to the Service Tribunal. In the present case the appellant had the other remedy of filing an appeal before the competent Authority, which in fact he did file before the Secretary, Education but the same was filed after he had preferred the present appeal. .
9. In our view the submission of learned counsel for respondents, relating to this preliminary objection must prevail and this preliminary objection completely seals the fate of this appeal, which is liable to be dismissed and we, therefore, order accordingly. No order as to the costs.