' BASHARAT AHMAD SHAIKH, J.---The appellant is a Lecturer in Jamia Islamia Khari Sharif, an institution run by the Auqaf Department. An order was passed by the Chief Administrator of Auqaf on 26th of July, 1994 whereby the date of appointment of the appellant was adversely changed. He therefore preferred an appeal before the Prime Minister of Azad Jammu and Kashmir on 2nd of August, 1994 for vacation of the Chief Administrator's order. The appellant states that he kept on sending reminders requesting for disposal of his appeal but the requests did not prove fruitful. He then filed a writ petition on 7th of April, 1996 seeking a direction against the Azad Government of the State of Jammu and Kashmir, respondent No,1 in the writ petition, that the appeal filed by the appellant on 2nd of August, 1994 may be decided. The writ petition was dismissed by a learned Judge in the High Court on 4th of October, 1997. This judgment will dispose of the appeal filed to challenge the aforesaid order of the High Court.
2. It was argued before the High Court that the appeal filed by the appellant before the Prime Minister of Azad Jammu and Kashmir was maintainable under the Civil Servants Appeal Rules, 1991 and it was a legal duty of the functionary with whom an appeal is preferred to decide it. Therefore, it was prayed that a writ be issued under sub-clause (i) of clause (a) of section 44(2) of the Azad Jammu and Kashmir Interim Constitution Act which lays down that the High Court can make an order "directing a person performing functions in connection with the affairs of Azad Jammu and Kashmir or local authority" to do that which he is required by law to do." The plea did not find favor with the High Court for the reason that a remedy available to the appellant to file an appeal before the Service Tribunal had not been availed by him and it could not now be enforced by issuing a writ. On the point that the remedy of appeal before the Service tribunal was not availed of by the appellant the High Court relied on the dictum of this Court in Shabir Ahmad v. Azad Government and others 1997 PLC (C.S.) 478 in which it was laid down that a civil servant can prefer an appeal to the Service Tribunal against an original adverse order within 120 days reckoned from the date of filing of departmental appeal etc. And cannot file an appeal to. The, Service Tribunal against the appellate order passed by the departmental authority if meanwhile the period mentioned above has elapsed. The rule laid down in Shabir Ahmad's case is as follows:-- "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 two options either to file appeal within 120 days or to wait indefinitely till the disposal of his appeal, review representation etc. And thereafter, prefer an appeal to the Service Tribunal. We are of the 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."
3. The adverse order against the appellant was passed on 26th of July, 1,994 and the appellant filed a departmental appeal against that order on 2nd of August, 1994. In light of Shabir Ahmad's case the appellant could file an appeal before the Service Tribunal within 120 days after filing the departmental appeal which opportunity has been missed by him. If his appeal is now dismissed by the Prime Minister of Azad Jammu and Kashmir, an appeal cannot be preferred before the Service Tribunal. Therefore, the learned Judge in the High Court took the correct view that the appellant had failed to avail the departmental remedy. However, there are two other aspects of the matter which have impact on the point in issue.
4. Firstly it may be mentioned that the dictum in Shabir Ahmad's case was laid down on 17th of December, 1996. Till then there was a practice in Azad Jammu and Kashmir that appeals before the Service Tribunal could be filed either within 120 days after preferring the departmental appeal etc. Or within 30 days after the dismissal of the appeal or representation by the departmental authority.
According to that practice the appellant was entitled to file an appeal against the possible rejection of his appeal which is still pending with the Prime Minister. The dictum of Shabir Ahmad's case on pending cases was discussed by this Court in Ch. Muhammad Hussain v. Azad Government of the State of Jammu and Kashmir 1997 PLC (C.S.) 1047 --- when it was contended before this Court that the law laid down in Shabir Ahmad's case would not apply retrospectively.
This plea was rejected but the following favourable view was taken by this Court:-- "In the light of what has been stated above, we are of the view that as delay in filing appeal to the Service Tribunal was occasioned due to bona fide mistake and long standing practice in the State, it is desirable to condone the delay in filing appeal to the Service Tribunal. Hence, the delay is hereby condoned."
5. The learned counsel for the parties who appeared in Ch. Muhammad Hussain's case made a submission that the Supreme Court may record an observation that appeals filed in the Service Tribunal prior to the judgment in Shabir Ahmad's case should be held within time by condoning the delay on the same ground as was being done in Muhammad Hussain's case. On this point the following observation was made by the Court:- "It may be stated that this case constitutes precedent to condone the delay if the circumstances identical to one in the present case exist. However, the question of condoning the delay in filing appeal is to be decided by the Service Tribunal in each case according to its peculiar circumstances. There may be cases in which the appeal was filed to the Service Tribunal after the dictum of this Court in Shabir Ahmad's case but the parties might not have been aware of the said dictum for one reason or the other; therefore, the question of condonation of delay is to be resolved by the Tribunal in light of the facts of each case keeping in view the general principle enunciated above."
6. In the light of what has been held in Ch. Muhammad Hussain's case, the appellant still has an opportunity to file appeal before the Service Tribunal if he can satisfy the Tribunal that condonation in his case would be justified. We cannot assume whether the plea will be rejected or accepted but the opportunity is there. Since this judgment was not brought to the notice of the learned Judge in the High Court, it was concluded that no remedy was available to the appellant. As the appellant has an opportunity, as discussed above, to satisfy the Tribunal if he cannot be deprived of it by closing doors at this stage.
7. The second aspect, which also has some bearing on the point under discussion, is that possibility cannot be ruled out that the appeal filed by the appellant with the Prime Minister of Azad Jammu and Kashmir may be accepted. If the appeal does not suffer from any technical defect and the appellant is able to make out a case he may get relief from the departmental authority. Since the appeal is provided to civil servants under the Civil Servants Appeal Rules, 1991, a civil servant who has filed an appeal is entitled to a decision on it in accordance with law. To that extent it can be treated as a right. In this connection reliance of the appellant on rule 6(2) of the Appeal Rules is well-placed. The sub-rule is as follows:-- "In the case of an appeal under rule 4, the appellate authority shall pass such order as, having regard to all circumstances ,of the case, appears, to it, just and equitable."
8. There are two judgments on the point which favour the issuance of a writ in the circumstances as exist in the present case. In S.H.M. Rizvi v. Maqsood Ahmad (PLD 1981 SC 612) it has been observed in paragraph 13 as under:-- "The Civil Servants (Appeal) Rules, 1977 enforced on 1st January, 1977, read along with section 22 of the Act exhaust the remedies available to a civil servant for redress of the grievances within the Department. It is either a right of appeal or a right to make a representation. In cases where the departmental authorities procrastinate or contumaciously refuse to pass a final order, as appears to have happened on the objection of the respondent (for the objection filed in 1976 remains to date undisposed of and the provisional list that issued in 1976 is yet to be finalized) the remedy for the aggrieved civil servant is to represent to the next higher authority and after waiting for a reasonable time to seek Constitutional remedy for a direction to the departmental authority to perform a duty enjoined upon it by law. The Service Tribunal being a statutory forum with restricted jurisdiction cannot in the absence of a final order of departmental authority adjudicate on all legitimate grievances of civil servants."
9. The above judgment of the Supreme Court of Pakistan was followed by this Court in Farooq Ahmad Khan v. Shaukat Jan Buch 1998 PLC (C.S.) 425.
10. The legal position analyzed above make out a case for issuance of a writ prayed for by the appellant. He filed departmental appeal on 2nd of August, 1994 but it has not been decided so far.
This delay cannot be justified nor it has been explained in the written statement filed by the Government. Consequently, the appeal is accepted and a direction is issued to respondent No, 1 that the appeal filed by the appellant may be decided within 4 months.