1. ' TARIQ MAHMOOD,. J.---Facts in brief are that petitioner was serving as driver in the office of Director Health. He was placed under- suspension on the ground of misreporting {{URDU TEXT}}vide order dated 11-10-1999 and Dr. Ghulam Rasool Mengal was appointed as Enquiry Officer.
2. Finally he was terminated from service, vide order dated 20-6-2000 passed by respondent No,3.
3. Being aggrieved, the petitioner preferred to have a departmental appeal to Director-General Health, respondent No,2 herein. The same was accepted by respondent No,2 vide order dated 28- 7-2000, on the ground that services of petitioner were illegally terminated, in that, enquiry had not been completed by the Inquiry Committee. It appears that in pursuance of above order, petitioner approached to respondent No,3 but he was not allowed to resume work. Matter was again brought to the notice of respondent No,2 and it further appears that he sought interference/help of Secretary Health and also explained that Dr. Zahir Shah was appointed as inquiry Officer in the instant matter but respondent No,3 refused to hand him over the relevant file/documents. Record also reveals that Director Health also wrote a letter to Director-General Health calling upon him to review his order of reinstatement of petitioner. The respondent No,3 went a step further and advertised the post held by petitioner. This gave a cause of action to petitioner, who, filed the instant petition and following relief has been sought:-- "It is, therefore, prayed that in view of the above submission the respondent No,3 may kindly be directed to implement the reinstate order of petitioner dated 28-7-2000 and the publication for the said post may also be cancelled in the interest of justice."
4. ' Pre-admission notice was given to respondents and matter of fresh appointment was stayed.
5. Respondent No,3 appeared in person and also filed parawise comments/counter-affidavit.
6. Respondent No,3 on the basis of letter, dated 22nd February, 2001 issued by respondent No,2 also states that he had been authorized to appear on his behalf, as well and while relying upon his earlier counter-affidavit also brought on record additional documents. However, learned A.A.-G appeared on behalf of respondent No, (sic)
7. ' As a short point was involved and, case was- ripe for disposal, so with consent of parties, we heard the matter as regular hearing.
8. ' Learned counsel for petitioner contended that he was illegally terminated from service, without holding an enquiry or providing opportunity of hearing. His appeal before a higher authority succeeded but respondent No,3 illegally refusing to obey the same, which he is required by law to do.
9. ' On the other hand, respondent No,3 has contended as follows:--
(i) Grievance of petitioner relates to terms and condition of service and appropriate forum for redressal of his grievance is the Service Tribunal and this Court has no jurisdiction;
(ii) The appeal filed by petitioner was not even entertainable by respondent No,2 in, that, it should have been routed through him (respondent No,3);
(iii) Respondent No,2 is not the appellate authority. Reliance has been placed on notification dated 28-4-2000, issued by the Government of Balochistan;
(iv) That he is not bound to obey illegal order of reinstatement passed by respondent No,2 and support was sought from arguments Nos.(ii) and (iii), hereinbefore referred.
10. ' However, learned Assistant Advocate-General supported the case of petitioner.
11. ' Adverting to the respondent No,3' s contention that instant petition is not maintainable, in view of bar contained in Article 212(3) of the Constitution, suffice it to say that where relief is beyond powers of service Tribunal, petition to High Court is competent. It may be explained that settled law is that in order to create an ouster of jurisdiction of all other Courts and Tribunal under Article 212 of the Constitution, it must be shown that the matter is agitated by a Civil Servant as defined under the Act, it has (arisen) from a final order of a department/authority, whether original or appellate, it concerns the terms and condition of the aggrieved Civil Servant and that it is not covered by the exceptions mentioned in provisos (b)(i) and (ii) of section 4 of the Service Tribunal, Act. If any of the conditions mentioned above are non-existent in a case then the bar contained in Article 212 of the Constitution will not be operative. It may be noted that under section 4 of Balochistan Service Tribunal Act, 1974 an appeal to the Tribunal is. Competent against any final order, whether original or appellate but as per proviso(a), where an appeal, review or representation to a departmental authority is provided, an appeal is not entertainable by the Service Tribunal unless remedy by way of appeal, review or representation before departmental authority has been exhausted. It has not been disputed on the strength of Rule 4 of Balochistan Civil Servants (Appeal) Rules, 1983 and section 22 of Balochistan Civil Servants Act, 1974 that order of termination was appealable before the appellate authority. Accordingly petitioner filed departmental appeal and succeeded resultantly; the original order of termination merged in the appellate order. Since the last order is in his favour, therefore, petitioner is not an aggrieved person and cannot approach to the Service Tribunal and the bar contained in Article 212 of the Constitution will not be operative.
12. ' Respondent No,2 in furtherance of this above second submission pointed out that in view of sub- rule (3) of the rule 5 of Balochistan Civil Servants, (Appeal) Rules, 1983, the appeal filed by petitioner was not competent or even entertainable. In order to appreciate the contention raised, it would be appropriate to reproduce rules 5 and 7 of Balochistan Civil Servants (Appeal) Rules, 1983.
13. 5.(1) Every person preferring an appeal shall do so separately and in his own name.
(2) Every appeal preferred under these rules shall contain all material statements and arguments relied upon by the appellant shall contain no disrespectful or improper language, and shall be complete in itself.
(3) Every appeal shall be submitted through the head of the office to which the appellant belongs or belonged.
(4) Every appeal shall be submitted within a period of sixty days of the communication of the order appealed against.
7. (1) An appeal may be withheld by an authority not lower than the authority from whose order it is preferred if:--
(a) . It is an appeal in a case in which no appeal lies under these rules; or
(b) it does not comply with the provisions of sub-rules (1), (2) or (3) of rule 5; or
(c) it is not preferred within the time specified in sub-rule (4) of rule 5 and no reasonable cause is shown for the delay; or
(d) it is addressed to authority to which no appeal lies under these rules; ' Provided that in every case in which an appeal is withheld, the appellant shall be informed of the fact and the reasons for it: ' provided further that an appeal withheld on account only of failure to comply with the provisions of sub-rule (2) or (3) of rule 5 or clause (d) may be resubmitted within one month of the date on which the appellant is informed of the withholding of the appeal and, if resubmitted in a form which complies with those provisions or is addressed to the proper appellate authority, as the case may be, shall not be withheld.
(2) No appeal shall lie against the withholding of an appeal by an authority competent to do so.
14. ' It may be seen that though it was proper for petitioner to submit appeal through the head of office, but as the same was considered on merits and decided in his favour, therefore, the appellate order cannot be ignored simply on the ground that departmental appeal was not routed through him. It may further be seen that in case of non-compliance of sub-rule (3) of rule 5, the appeal could be withheld under rule 7(1)(5) for the stated reason, with intimation to petitioner and same could be filed afresh as per second proviso of rule 7. The requirement is directory and not mandatory and we are under no legal obligation to ignore the appellate order on the stated reason.
15. ' Adverting to the submission of respondent No,3 that since the respondent No,2 is not the appellate authority, therefore, he could not have exercised the power, it may be observed that Notification No,S.O II (H) 52-15/98/5972/88, dated 28-4-2000 referred in support of argument is of no help to him, in that, through the notification under reference, Government of Baloshistan was pleased to reconstitute the Departmental Selection Committee for recruitment on the posts of BPS-1 to BPS-15.
16. Reliance was also placed on schedule appended to the rules 2(2) and 2(c) of Balochstan Civil Servants (Efficiency and Discipline) Rules, 1992. Suffice it to say, that it defines "Authority" and "Authorised Officer" and not the "appellate authority". Here it would be advantageous to reproduce rule 4 of Balochistan Civil Servants (Appeal) Rules, 1983:--
4. A civil servant shall be entitled to appeal to the "appellate authority" from an order passed by an "authority" which--
(a) ..
(b) .
(c) ..
(d) ..
17. ' Authority and Appellate Authority have been defined as under:-- 2(a) "appellate authority" means the officer or authority next above the authority;
(b) "authority" means the authority competent to appoint a civil servant under the rules applicable to him or an authority competent to impose a penalty; and section 22(2) of Balochistan Civil Servants Act, 1974 is also of some help to resolve the controversy:-- 22(1) -------------------
(2) Where no provision for appeal or review exits under the rules in respect of any order or class of orders, a civil servant aggrieved by any such order may, within thirty 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: ' It may be seen that right to file appeal or review or representation has been given to an aggrieved Civil Servant and appeal lay before an "appellate authority" which means the officer or authority next above the authority. It has not been even disputed that respondent No,2 (Director-General) is an officer or authority next above the respondent No,3 (Director). Further, under rule (1)(d) of Appeal Rules, appeal could be withheld on the stated ground, with intimation to petitioner, which was never done. The objection raised in this behalf is not sustainable. This also dispose of objection
(iv) hereinbefore mentioned, raised by respondent No,3.
18. ' To resolve the controversy on merits, it would be profitable to reproduce sub-rule (3) of rule 6 of Balochistan Civil Servants (Appeal) Rules, 1983.
19. 6(1).
(2) .
(3) The authority from whose order an appeal is preferred under these rules shall give effect to any order made by the appellate authority.
20. ' Sub-rule (3) of rule 6 is pertinent as regards the issue in question. It clearly lays down that authority is under a legal obligation to give effect to the order passed by the "appellate authority".
21. We are, therefore, of the view that matter was decided by the order of appellate authority by giving him relief partly. The said order holds the field. Even the learned Assistant Advocate-General did not challenge the existence and validity of appellate order. Accordingly the order of appellate authority is to be given effect under sub-rule (3) of rule 6 above. We, therefore, direct respondent No,3 to give effect the order dated 28-7-2000 passed by respondent No,2 as it deserves to be complied with and respondent No,3 is under a legal obligation to do so, which he has failed to do, despite repeated approaches and reminders. However, it may be clarified that this order would not deprive the department to hold/complete enquiry in the alleged misconduct of petitioner.
22. Petition stands disposed of.