1. ' SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).-This service appeal has emanated in the following circumstances :- ' Both S. M. Zafar appellant and Mahmood Ahmed Lodhi respondent No, 2 were Assistant Director in the Department of Local Government and Peoples Works Programme of Azad Kashmir Government when vide Government Order No, Admin. 3569-75 dated 5-2-76 latter was promoted to the post of Deputy Director in the same Department which fell vacant as a result of the promotion of Sardar Mohammad Ashraf Khan, Deputy Director to the post of Director.
2. ' Feeling aggrieved by the promotion of the respondent No, 2 the appellant has lodged the present appeal against the above-stated Government order with the prayer that by setting aside the same he be promoted and appointed to the post of Deputy Director instead of respondent No, 2.
3. ' The Relief sought for is based on the following grounds :-
(1) That the appellant was senior to the respondent No, 2 as he was promoted to the post of Assistant Director in the Department of Local Government and Peoples Works Programme on 6th February 1974 whereas the respondent No, 2 was promoted to the same post on 7th March 1975.
(2) That the appellant is Law Graduate whereas the respondent No, 2 is only a Matriculate and as such because of his better qualification and wider experience he was entitled to the promotion to the post of Deputy Director in preference to respondent No, 2.
(3) That for promotion to the post of Deputy Director only the Assistant Director was always preferred in the past and thus he had the preferential right of promotion as compared to the respondent No, 2 who was promoted as Project Manager which post besides being temporary sanctioned in the Development Programme Budget on yearly basis is considered one grade junior to that of Assistant Director, Peoples Works Programme which is a permanent post in the regular cadre.
4. ' The respondents have contested the appeal and put in separate written statements. They have raised certain preliminary legal objections such as non-maintainability of the appeal on account of appellant having not resorted to the departmental remedy available to him against the impugned order, appeal being time-barred and incompetent as the appointment of respondent No, 2 being on ad hoc basis subject to the confirmation by Public Service Commission the impugned order is tentative and not final.
5. ' On the merits it has been denied that the appellant is either senior to or better qualified than the respondent No,
2. On the contrary it is alleged that although appellant and respondent No, 2 were promoted to the higher grade on the same date, yet the respondent No, 2 was senior to the appellant prior to their simultaneous promotion as he had been holding senior post of higher grades as compared to the appellant in the Department of Basic Democracies as well in the department of Local Government and Peoples Work Programme. It is also contended that the respondent No, 22 is equipped with better technical qualification than the appellant because he had undergone a departmental training in the Supervisor's course from the Technical Institute of Lala Musa whereas the appellant has not received any training in any of the departmental courses.
6. ' Appellant got his statement recorded as his own witness whereas Mr. Qamar-ud-Din Bashir, Director, Local Government and Peoples Works Programme and Abdul Rashid Baig Selection Officer, Prime Minister Secretariat, were examined by us with a view to getting elucidation of certain points raised by the parties.
7. ' We heard the learned counsel for the appellant and respondent No, 1 and also Mahmood Ahmed Lodhi respondent No, 2 and have also gone through the record of the case. The learned counsel for the respondent No, 1 raising the preliminary objection to the maintainability of the appeal contended that as the appellant did not exercise right of review given to him under rules, the Tribunal has no jurisdiction to entertain his appeal in view of the proviso (a) to section 4 of Azad Jammu & Kashmir Service Tribunal Act, 1975. Before taking any decision on this preliminary objection raised by the learned counsel for the appellant it seems necessary first to decide as to whether or not the appellant had availed of the departmental remedy before coming to this Tribunal. In the memorandum of appeal the appellant has nowhere mentioned that he had preferred any appeal, review or representation to the departmental authority against the impugned order. But during the preliminary hearing he filed an affidavit on 22-1-77 to the effect that an appeal against the impugned order is pending before the Prime Minister. Similarly in his statement before the Tribunal he has also taken the stand that he had preferred an appeal before the Prime Minister against the impugned order before filing the present appeal in the Service Tribunal. But we after taking the relevant record, the statement of Mr. Rashid Baig, Section Officer, Prime Minister Secretariat and the appellant's statement and conduct we are of the view that the appellant had not filed any appeal or review petition before the Prime Minister before lodging the present appeal. Mr. Abdul Rashid Baig after examining the relevant record of the Prime Minister Secretariat wherein appeals, review petitions and representations of the Government servants are entered has stated that the appellant had not filed any appeal or representation before the Prime Minister or in his Office in April, 1976 but had filed an appeal to the Prime Minister on 10-7-77. The appellant in his statement has stated that he had presented an appeal against the impugned order to the clerk of the office of the Prime Minister but neither he knows the name of the clerk nor had taken any receipt of it from him. He also does not remember the exact date of filing the appeal. In his statement he undertook to produce the copy of the appeal filed before the Prime Minister but never produced the same. The affidavit filed by him containing the statement about the pendency of his appeal before the Prime Minister does not relate to an appeal of the appellant against the impugned order as is evident from his own statement before the Tribunal in which he has categorically stated that the appeal mentioned in his affidavit to be pending before the Prime Minister refer to the appeal filed by Mr. Rashid Butt. This means that at the time of filing an affidavit the appellant had not filed any appeal to the Prime Minister, against the impugned order. Thus the conduct and statement of the appellant referred to above, the evidence of Mr. Rashid Baig, Section Officer and absence of any mention of resort to departmental remedy against the impugned order coming to the Tribunal in the memorandum of appeal leaves no doubt in our mind that the appellant before instituting this appeal had not preferred any appeal, petition for review or representation against impugned order to the departmental authority. After coming to this finding the next point which requires determination is as to what is the effect of the appellant's failure to have recourse to the departmental remedy available to him under law before approaching the Service Tribunal. The argument of the learned counsel for the respondent No, 1 is quite forceful that the jurisdiction of the Tribunal to hear this appeal is barred under proviso (a) to section 4 of the Azad Jammu and Kashmir Service Tribunal Act for failure of the appellant to approach the Departmental authority for the redress of his grievance against the impugned order in the first instance before filing the present appeal in the Tribunal. To appreciate this point it would be advantageous to reproduce the relevant portion of section 4 of the Azad Jammu & Kashmir Service Tribunal Act which reads as follow :- "4. Appeals to Tribunals.-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 including disciplinary matter 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 any law, regulations or rules for the time being in force, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and period of ninety days has elapsed from the date on which such appeal, application or representation was to be preferred ;"
8. ' From the reading of section and its proviso reproduced above it becomes quite clear that the Civil Servant aggrieved by an order in respect of his terms and conditions of service can prefer an appeal to the Tribunal against the said order only if two conditions are satisfied namely that before seeking redress of his grievances from the Tribunal he had preferred an appeal, or application for review or representation, whichever is provided under rules, to the departmental authority and that the period of 90 days had elapsed at the time of preferring an appeal before the Tribunal from the date of his filing an appeal, review or representation, as the case may be, before departmental authority. If the above-stated two prerequisites for filing an appeal before the Tribunal are not fulfilled, then the jurisdiction of the Tribunal is completely barred to hear an appeal of Government servant under the proviso (a) to section 4 of Azad Jammu and Kashmir Service Tribunal Act. The appellant, as held above, had not availed of the departmental remedy at the time of filing the present appeal which was available to him by way of application for review against the impugned order under Article 49 of K. S. R. Vol. II with the result that his appeal is not maintainable. Even if it is assumed for the sake of arguments that the appellant had filed a review petition against the impugned order to the Government, the appeal is still not competent because the period of 90 days had not expired on the date of filing the present appeal. The appeal was instituted on 11-4- 1976 whereas the impugned order was made on 5-2-1976 with reason that even if the appellant had filed an appeal or review against the impugned order on the very next day of its passing to the departmental authority the period of 90 days had still not expired on the date of his seeking relief from the Tribunal in the shape of present appeal.
9. The up shot of the above discussion is that the appellant having failed to avail of the departmental remedy available to him under law against the impugned order before coming to the Tribunal is not entitled to exercise his right of appeal against the impugned order conferred on him by the principal clause of section 4 of the Azad Jammu & Kashmir Service Tribunal Act.
10. ' For the foregoing reasons the appeal is not maintainable being hit by proviso (a) to section 4 of Azad Jammu & Kashmir Service Tribunal Act. In this view of the matter we cannot go into the merits of the appeal which is hereby dismissed as being incompetent. The parties will bear their own costs. The parties should be informed.
11. ' KH. ABDUS SAMAD (MEMBER).-I agree.