MUHAMMAD IJSMAN vs N.W.4F. PROVINCE THROUGH THE CHIEF SECRETARY/

ORDER

1. ' MUHAMMAD AFZAL ZULLAH, J.-This petition for leave to appeal is directed against the order dated 10-12-1981 of the N.-W. F. P. Service Tribunal; whereby the petitioner's appeal under section 4 of the N.-W. F. P. Service Tribunals Act, 1974, was held to be premature and dismissed accordingly. The petitioner who was on the verge of retirement as civil servant applied for grant of pay in grade 17.

2. His prayer was refused by an order which according to the learned counsel was passed on 29-5- 1980, but was conveyed on 16-6-1980. As according to the learned counsel, there was no provision for filing an appeal against the said order, the petitioner made a representation by virtue of subsection (2) of section 22 of N.-W. F. P. Civil Servants Act, 1973, on 9-7-1980. However, without waiting for 90 days from, the filing of the representation as provided in the proviso to section 4 of the N.-W. F. P. Service Tribunals Act, 1974, he filed the appeal in question before the Tribunal on 15-7- 1980. On 13-3-1981, on a preliminary hearing it was noted by the Tribunal that the appeal might be, treated as premature but it was admitted to regular hearing so as to avoid repetition of proceedings but subject to all just exceptions. Ultimately at the final hearing, taking a view different from the views of the Federal Service Tribunal in a similar case, the Provincial Tribunal held that the appeal was premature as the petitioner did not wait for 90 days after filing the representation dated 9-7-1980. Therefore, this petitioner has now sought leave to appeal.

3. Learned counsel for the petitioner has contended firstly that the Earlville request by the petitioner for grant of pay in grade 17 was in reality representation, therefore, the order dated 29-5-1980 conveyed on 16-6-1980 should have been treated as rejection of representation made under subsection (2) of section 22 of N.-W. F. P. Civil Servants Act, 1973, and that being a final order, the appeal filed before the N.-W. F. P. Service Tribunal on 15-7-1980 would be competent against the said order which was conveyed on 16-6-1980. He has also argued that the admission of the appeal on preliminary hearing should have been treated as enough reply to the objection regarding the appeal being premature; and lastly, he also pointed out that 90 days having elapsed during the pendency of the premature appeal, the tribunal should have decided it on merits on the day it was dismissed because by that time the appeal had admittedly become competent.

4. ' We have no reason to differ with the tribunal on the question of fact that the petitioner had applied in April, 1980, to the Secretary Government of N.-W. F. P. Excise and Taxation Department, claiming the pay and allowances in grade 17 with effect from 6-5-1979. And that the application was ultimately rejected by the Board of Revenue. Subject to the right of the appeal if available or representation, if the appeal was not available, this order of the rejection of the petitioner's application would be final for purpose of filing an appeal under section 4 of the N.-W. F. P.A Service Tribunals Act. The petitioner filed a "representation" which his learned counsel argued was for the reason that an appeal was not competent. That being so, this representation would be treated as under subsection (2) of section 22 of the N.-W. F. P. Civil Servants Act, 1973. And the same would be treated as the representation mentioned in the proviso (a) to section 4 of the N.-W. F. P. Service Tribunals Act, 1974. The proviso is clear that in case such a representation is made then "no appeal shall lie" till the expiry of 90 days from the filing of the said representation. In other words the appeal filed by the petitioner on 15-7-1980 without waiting for 90 days after making of the representation on 9-7-1980 would have to be dismissed as premature. The intention of the law-maker in this behalf was clear, namely, that the civil servant, if he invokes a departmental remedy must wait and give time to the departmental authority to take a decision. And 90 days was considered as a fair period of time in this behalf. I appeals are filed before the tribunal, notwithstanding the bar in the proviso that no appeal shall lie before the expiry of 90 days in such like cases then the departmental authority would be deprived of an opportunity to redress wrong, if possible, within the departmental forum.

5. ' Learned counsel himself stated that once the appeal is filed before the Tribunal the departmental authorities do not thereafter (in order to avoid conflict of decision) decide the appeals/revisions/representations, on merits. The mischief, which was sought to be thus avoided by the law as contained in the proviso to section 4, would continue to operate to the detriment of the civil servant as also the department. For this reason, on account of the peculiar nature of the subject and the provisions contained :in section proviso (a) of the Service Tribunals Act, the last but general argument raise by the learned counsel would not prevail in service matters governed by N.-W. F. P. Civil Servants Act and Service Tribunals Act. On account of this aspect, the service appeals would be distinguishable from the applications filed under the Rent Restriction Laws; where under some authority can be found for the proposition that a premature application for eviction could be tried and decided if the cause of action matured during the course of the proceedings, so as to avoid multiplicity of the proceedings. This general consideration would not apply to_ the present case. There is specific statutory bar contained in the proviso (a) to section 4 of the Tribunals Act, as noted earlier, that the appeal shall not lie (and thus will not be competent) before the expiry of 90 days after the filing of the appeal, review as representation as visualised by the said proviso. Therefore, the first and last arguments of the learned counsel have no force.

6. ' The remaining argument based on the admission of the appeal by the tribunal is of no avail to the petitioner; because firstly, the admission order is C ordinarily subject to the final decision; and, secondly, in this case the admission of the appeal was made subject to all just exceptions.

7. ' Before closing, it needs to be noticed that this Court in the earlier decisions reported as Ikramuddin Syed v. Chief Secretary, Government of Sind etc. and Noor Khan Choudhry v. Province of Sind and others , has already taken the view that the appeal filed in the circumstances as in the1 2 present case would be premature and thus incompetent. To the similar effect is Mufti Mushtag Ahmad v. The Federation of Pakistan . It also needs to be observed that a necessary corollary, of the dismissal of petitioner's appeal as premature would be that he will be within his right to file an appeal from the final decision of his representation made on 9-7-1980. 1979 SCM R 469 1982 SCM R 582 PLD 1981 SC 172