SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment of the Service Tribunal dated 7-4-1996, whereby the appeal filed by the appellant, herein, was dismissed as being the-barred.
2. The brief facts of the case are that the appellant and respondent No. 2 were serving in the Public Works Department when they were promoted as Sub-Engineers on the recommendations of the Selection Board. According to the appellant, he was duly appointed as Overseer in the Public Works Department much before respondent No.2 whereas respondent No.2 was subsequently transferred to the Department and that, to, without the approval of the competent Authority on 19-8-1975. The Selection Board, on whose recommendations the appellant and respondent No.2 were promoted as Sub-Engineers, placed the appellant senior to respondent No.2. However, subsequently, without the knowledge of the appellant or impleading him as a party, the respondent No. l ordered the promotion of respondent No. 2 on his review petition with retrospective effect from 9-5-1974.
3. It has been contended by Mr. M. Tabssum Aftab Alvi, Advocate, the learned counsel for the appellant, that the appellant was communicated the aforesaid Notification on 24-3-1991 against which he filed the review petition within 30 days as stipulated in the relevant Rules. After the dismissal of his review petition, he filed appeal to the Service Tribunal within the prescribed period of limitation but despite that the Service Tribunal has opined that the appeal filed by the appellant was the-barred, because respondent No.2 had already exhausted departmental remedy by way of review in the matter and second review by the appellant, herein, was not competent; the appellant should have preferred an appeal to the Service Tribunal when the order by which he was aggrieved came to his knowledge but instead he filed a review petition before respondent No. l on 28-3-1991 and waited for its disposal till 24-5-1994.
4. After hearing the arguments in the appeal on 18-11-1996. We felt advised to re-hear the counsel for the parties, because some important law points were involved in the case; notices to the senior members of the Bar were also issued to assist the Court in the case. Consequently, exhaustive arguments were addressed by the counsel for the parties, and the other members of the Bar.
5. The first question which needs resolution is as to whether in the instant case, the appellant had a right to file a review petition for the redressal for his grievance by way of departmental remedy, as envisaged under proviso (a) to section 4(1) of the Azad Jammu and Kashmir Service Tribunals Act, 1975 (hereinafter shall be called the Service Tribunal Act) or he was debarred to do so because respondent No.2 had availed the remedy by way of a review for the redressal of his grievance. It may by stated here that somewhat identical question came up for consideration in case reported as Rang Baz Khan v. Raja Muhammad Azam Khan (1995 SCR 189). The facts of that case that some Patwaris were promoted as Girdawars without considering the case promotion of one Raja Muhammad Azam. The promotion order passed by the Collector was challenged by Muhammad Azam, Patwari, by filing an appeal to the Revenue Commissioner who accepted the same. The aforesaid order of the Revenue Commissioner passed on appeal was challenged before the Secretary Revenue by Rang Baz Khan, one of the promotees by filing an appeal/representation, which was accepted; thereafter Muhammad Azam filed an appeal before the Service Tribunal against the order of Secretary Revenue. His appeal was accepted by the Service-Tribunal on the ground that as no appeal/representation was competent to the Secretary Revenue, the order passed by him was without jurisdiction. The findings of the Service Tribunal were challenged before this Court wherein it was held that the representation made before the Secretary Revenue by Rang Baz was competent and the Service Tribunal committed error in holding that no appeal/representation lay to the Revenue Secretary. It was further opined that as Muhammad Azam, respondent in that case, was aggrieved by the order of the Collector, he had filed an appeal to the Revenue Commissioner who accepted the same. Thus, Rang Baz, the appellant in that case, was aggrieved by the order passed by Revenue Commissioner but he had no right to file an appeal under Rules. However, he had a right to file a representation against the order of Revenue Commissioner under sub-rule (2) of Rule 8 of the Appeals Rules 1982. Therefore, no embargo can be placed on his right to file a representation merely because Muhammad Azam, respondent in that case, had exercised his right of appeal to the Revenue Commissioner. Thus, by majority view, it was held that the appeal filed by Rang Baz before the Service Tribunal was within the; and the case was remanded to the Service Tribunal for decision on merits. The principle enunciated in Rang Baz's case, referred to above, fully applies to the facts of the case in hand; the mere fact that the respondent had exercised the right of review by way of departmental remedy does not debar the appellant to file a review petition against the order by which he was aggrieved, especially so when he was not impleaded as a party in the review petition filed by respondent No.2 Therefore, the appellant was within his rights to file a review petition for the redressal of his grievance and the view expressed by the Tribunal to the contrary is not correct.
6. The next question, which needs resolution, is as to whether the appeal filed by the appellant before the Service Tribunal was the-barred. There is no controversy that if we reckon the period of limitation for filing appeal before the Service Tribunal from the knowledge of the dismissal order of the review petition, his appeal to the Service Tribunal is within the, but if we come to the conclusion that under proviso (a) to section 4(1) of the Service Tribunal Act, the appellant was bound to prefer an appeal to the Service Tribunal within 90 days, waiting period, plus 30' days, the period prescribed for filing appeal under section 4(l) of the Service Tribunal Act, his appeal would be the- barred. For resolving the matter in controversy, it is necessary first to resolve the question as to whether an aggrieved civil servant has choice to wait till his appeal, review, representation etc. Is disposed of by the authority concerned or he is bound to prefer an appeal to the Service Tribunal after the expiry of 90 days and within 30 days which are available to him under section 4 of the Service Tribunal Act. For convenience, the relevant part of the provisions contained in section 4 of the Service Tribunal Act is reproduced below:-- "4. Appeal to Tribunals. ---(I) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority, in respect of any of the terms and conditions of his service, may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal: Provided that:
(a) Where an appeal, review or representation to a departmental authority is provided under the Azad Jammu and Kashmir Civil Servants Act, 1976 or any rules, against any such order, no appeal shall lie to a Tribunal unless the aggrieved Civil servant has preferred an appeal or an application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred; (b)
(c) ......................................
7. The learned counsel for the parties and the senior counsel, appearing in response to the notice, were at variance as to whether the to choices were available to an aggrieved civil servant for filing an appeal before the Service Tribunal, Le, either he should wait till the disposal of his appeal, review, representation, etc by the departmental authority and then file an appeal to the service Tribunal within thirty days or he is bound to prefer an appeal within ninety days stipulated under section 4(1)(a) of the Service Tribunals Act plus thirty days. The learned counsel for the appellant has referred to a case reported as Haji Kadir Bux v Province of Sind (1982 SCM R 582) and has maintained that an aggrieved civil servant who has availed the departmental remedy envisage under proviso (a) to section 4(1) of the Service Tribunals Act, may prefer an appeal to the Service Tribunal with in 120 days reckoned from the date on which his appeal, application or review was preferred or he may wait till his appeal, review etc. Is disposed of by the authority concerned. He has argued that an appeal to the Service Tribunal cannot be held the-barred if he does not file the same within 120 days and wait for the final decision on his appeal review etc.; the learned counsel has maintained that-proviso (a) to section 4(1) stipulates the condition that an aggrieved civil servant is debarred from preferring an appeal to the Service Tribunal without exhausting the departmental remedy and expiry of 90 days recokoned from the date of such review, representation etc. But it does not stipulate that an aggrieved civil servant must prefer an appeal to the Service Tribunal and if he does not file appeal after the expiry of ninety days but, waits till his appeal etc is finally disposed of by the departmental authority, he is debarred to file the same thereafter.
8. In reply, Raja Muhammad Hanif Khan, Advocate, the learned counsel for respondent No.2, has maintained that the theory of double choice of filing appeal to the Service Tribunal, Le, filing appeal after expiry of ninety days, reckoned from the date of his appeal, review etc. To the departmental authority or after the disposal of same by such authority is not correct. The learned counsel has argued that is it imperative for an aggrieved civil servant to prefer an appeal to the Service Tribunal within a period of 120 days whether his appeal, review etc. Is finally disposed of by the departmental authority or not. The learned counsel has referred to the following cases in support of his contentions:-- In case reported as Federation of Pakistan v Muhammad Azim Khan (1989 SCM R 1271), the facts were summarized by Mr. M. Bilal, Deputy Attorney-General. In that case, the Deputy Attorney- General contended as follows:-- "Mr. M. Bilal, the learned Deputy Attorney-General contended before us that whatever view is taken on the facts stated by the respondent before the Tribunal and accepted by the Tribunal, his appeal was the-barred. The departmental order, which was challenged, was dated 15-7-1979. The representation against it was filed on 8-9-1979 i.e. Beyond the period of thirty days prescribed under section 22 of the Civil Servants Act. If this representation, dated 8-9-1979 remained legally un-disposed of, then the respondent had to approach the Tribunal within 120 days thereafter but he failed to observe the limitation even there. Even if the representation be taken to have been correctly disposed of on 28-10-1979, he had to file the appeal before the Tribunal within thirty of the disposal of the representation. The period available to the respondent was either thirty days from 28-10-1979 or 120 days from 8-9-1979. In either case he had filed a the-barred appeal and the reason given in the application for condonation of delay was not at all available and the view taken by the Tribunal in the impugned judgment with regard to the period of limitation available to him is erroneous."
9. The points raised by the Deputy Attorney-General were controverted by the counsel for the respondent as under: -- "Qazi Atiqur Rehman, Advocate, the learned counsel for the respondent on the other hand contended that as would appear from the representation filed by the respondent he did not receive a copy of the termination order ever, directly. It was only when he was refused pay for July, 1979 that he came to know about the order and even then he had not the full awareness of it. This explained his filing the representation on 8th of September, 1979 i.e. Beyond the period of thirty days. As regards the delay-taking place from 8-9-1979, the learned counsel explained that the view taken by the Tribunal till then was that if representation against the order was pending then the period prescribed under section 4 of the Act got extended till the representation was disposed of. Following that view, the Tribunal considered the appeal within the and had no occasion to advert to the application for condonation of delay. It was only when the Supreme Court decision in the case of Haji Kadir Bux v. Province of Sind and another (1982 SCM R 582) was given on this subject, that its view was corrected by the Tribunal. "
The Court, after considering the matter, observed as under:-- "The respondent addressed his representation to the Establishment Secretary and not to the next higher officer, as is required under the law. However, as he had, according to the finding of the Tribunal endorsed it to the President, the next higher authority over the establishment Secretary, it can be said that there was substantial compliance with the requirement of the law. His filing the representation on 8-9-1979, when the order challenged was of 15-7-1979, can also be explained on the factual ground even by the respondent. As regards the the spent after 8-9-1979 there appears to be no explanation at all. The appeal filed before the Tribunal on 26-1-1980 was barred, being beyond 120 days of 8-9-1979 and in the alternative beyond thirty days of 28-10-1979 and in the alternative beyond thirty days of 28-10-1979. The Tribunal had been taking an incorrect view of the law is not a reason or sufficient reason for condonation of delay or even for explaining the delay.
Besides, the diversity in the views of the Service Tribunals would clearly appear from the decision given by this Court in the case of Kadir Bux but in the to alternatives present in this appeal there was no divergence of views, in no case the limitation going beyond 120 days after filing of the appeal or representation or more than thirty days after the disposal of such appeal or representation. The Tribunal has, therefore, taken incorrect view of the law in holding that an appeal filed on 26-1-1980 was within the against the final order, dated 28-10-1979 or after filing the representation on 8-9-1979."
It appears from the facts of the authority cited above, that the principle enunciated in case of Kadir Bux, referred to above, was not departed from, rather, the double choice theory for filing an appeal and the to starting points of limitation were not controverted. Even the Deputy Attorney-General did not seriously oppose that to periods of limitation were available to the concerned civil servant.
In that case, the appeal was the-barred even from the date of the communication of the order to the aggrieved civil servant as he failed to file the appeal to the Service Tribunal within thirty days of the disposal of his representation.
11. The other authority relied upon by the learned counsel for the respondent is reported as Fazal Elahi Siddiqi v. Pakistan thorough Secretary, Establishment Division (PLD 1990 SC 692). The facts of the case were that the appellant had made a representation, which had not yet been rejected, when the appellant filed appeal before the Service Tribunal beyond the period of 120 days. It was contended that as the period of limitation which would be commencing after the disposal of his representation before the departmental authority could still be availed of by him, his appeal was within the. The contention was repelled by the Court as under:-- "9. A perusal of the abovequoted subsection (1) of section 4 indicates that a civil servant if aggrieved by any final order in respect of any terms and conditions of his service can file an appeal before the Tribunal within 30 days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, whereas the proviso
(a) to above subsection (1) puts embargo on the above right of appeal providing that before filing any such appeal the aggrieved civil servant shall file an appeal, review or representation if so provided and shall wait for a period of 90 days from the date of which such appeal application or representation was preferred, But it does not provide that an aggrieved civil servant should wait till the decision of the authority concerned on his departmental appeal, review or representation. The reason for not providing so seems to be to eliminate delay in the finalisation of a service matter and also to eliminate the element of uncertainty as some departmental authority may take one or to years to decide an appeal review or representation We are inclined to hold that the view taken by the Tribunal that a civil servant is to approach the Tribunal against a final order by which he is aggrieved within 120 days i.e. 90 days waiting period for receiving decision on appeal review or representation plus 30 days limitation period of the appeal before the Tribunal. Any other view would be against the spirit of above quoted section 4 of the Act. The above view is in consonance with the view taken by this Court in the case of Federation of Pakistan v. Muhammad Azim Khan and others 1989 SCM R 1271 referred to hereinabove relied upon by the appellant. In the present case, the appellant was aggrieved by the final order of his compulsory retirement dated 31-10-1976 whereas they appeal was filed by him on 20-7-1978 i.e. After the expiry of more than 20 months. It is, therefore, evident that the appeal was barred by limitation by more than 1--1/2 years. The view found favour with the Tribunal seems to be in consonance with law." (Underlining is ours).
12. It is obvious that in the aforesaid authority the theory of double choice of appeal was departed from and it was held that after filing an appeal to Service Tribunal, the aggrieved civil servant should not wait for the final. Disposal of his appeal etc.. By a departmental authority.
13. After giving deep consideration to the matter, we are of the view that there is hardly any justification for approving the view that a civil servant has to option either to file appeal within 120 days or to wait indefinitely till the disposal; of this appeal, review representation etc. And thereafter prefer an appeal to the Service Tribunal. We are of he opinion that he is bound to prefer an appeal to the Service Tribunal within 120 days, reckoned from the date of filing of an appeal etc. To the departmental authority for the following reasons:--
(a) The provision contained in section 4(l) of the Service Tribunals Act indicate that the intention of Legislature is to finalize the matter pertaining to the disputes of civil servants as early as possible, because if the decision is belated, the other incumbents in civil service who might have been promoted by that the to higher grades might be adversely affected; many other situations can arise; for instance, new appointments by initial recruitment, promotion or transfer may take place in the concerned department; even some of the incumbents may have retired by the the the departmental remedy is finalised. This would result in hardships not only to the other civil servants serving in the department but may also adversely affect the civil servants who might already retired.
(b) If a civil servant prefers an appeal within 120 days as stipulated under proviso (a) to section 4(1) of the Service Tribunals Act and the matter is decided by the Service Tribunal and thereafter some other order is passed on his appeal, representation, etc. By the departmental authority, that would create an anomalous situation. Because there is no stipulation in law that the order passed by the departmental authority would not prevail against the order of the Service Tribunal.
(c) Had the Legislature intended that a civil servant would be at liberty to prefer an appeal to the Service Tribunal even after an order on his appeal, representation or review by the departmental authority, it would have said so in the proviso to section 4(1) of the Service Tribunals Act that an appeal could be preferred to Service Tribunal after 90 days or for that matter 120 days or 'after the final decision of his appeal, representation, review etc. By the departmental authority' but there is no such stipulation in the relevant provision.
(d) The phrase appearing in section 4(1) of the Service Tribunals Act, 'whether original or appellate made by the departmental authority' cannot be interpreted to mean that an appeal against an order of a departmental authority can be preferred to the Service Tribunal even after the final decision of the departmental appeal, representation etc., because expression 'appeal' in the aforesaid phrase means that if a civil servants aggrieved by an original order prefers an appeal, review, etc., to such authority and the departmental authority accepts his appeal, review or representation etc., the other civil servant who may be aggrieved by such appellate order, is competent to prefer an appeal to the Service Tribunal after availing of the departmental remedy, if any, irrespective of the fact that the order was not an original order but an appellate order. Thus, the aforesaid expression in the main part of section 4(1) means that the civil servant can prefer an appeal against a final order whether original or appellate and not that a civil servant who has preferred an appeal, review, representation under proviso (a) to section 4(1) of the Service Tribunals Act should wait for final disposal of his appeal etc.
(e) We have come across the cases where an aggrieved civil servant came up with appeals as many as ten years after filing his appeal, review etc. To the departmental authority contending that as the decision by the departmental authority was belated they were legally within their rights to file appeals to the Service Tribunal. It cannot be conceived that the Legislature intended that an aggrieved civil servant may sleep over the matter for such a long lime in preferring an appeal to the Service Tribunal, despite the fact that he could have preferred an appeal to the Service Tribunal under proviso (a) to section 4(l) of the Service Tribunals Act. We may venture to add that in some cases civil servants purposely sleep over the matter with an ulterior motive to get a favourable decision by the departmental authority after a political change in the State. This gives rise to many complications and adversely affects the smooth working of the concerned department.
14. It has already been stated that in the instant case the the from 28-3-1991 to 24-3-1994, a period of almost three years, was consumed in pursuing the departmental remedy and thereafter the appellant preferred appeal to the Service Tribunal, whereas he should have appealed within 120 days after filing of his review petition to the authority concerned. Thus, the appeal filed by the appellant was hopelessly the-- barred.
15. In the light of what has been stated above, we dismiss the appeal holding that the appeal before the Service Tribunal was the --barred though for the reasons different from one which weighed with the Tribunal. In the circumstances of the case we make no order as to the costs.