Ch. MUHAMMAD LATIF Versus

ORDER

1. SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN) .‑This is a service appeal under section 4 of the Service Tribunals Act, 1975 (hereinafter referred to as an Act) against the Government order dated 20‑6‑75 whereby the special pay of .the appellant as Registrar, Co‑operative Societies was reduced from Rs. 440 to Rs. 275 p.m.

2. The brief facts of the case, as alleged in the memo of appeal, are that the appellant was holding the post of Registrar Co‑operative Societies when the Government vide its order dated 12‑6‑75 sanctioned a pay scale of Rs. 1800‑8‑‑2'200 with special pay of Rs. 440 p.m. for the post of Registrar, Co‑operative Societies w.e.f: 1‑6‑1972 but later on under its order dated 20‑6‑75 reduced the special pay attached with the said post from Rs. 440 to 275 p.m. w.e.f. 1‑6‑76. Feeling aggrieved of the aforesaid order the appellant filed an appeal with the Government on 10‑10‑76 but the same was rejected vide dated 8‑3‑79 and the review petition filed against the order of the rejection of the appeal was also not successful as the same was rejected vide order dated 5‑9‑79. Hence the present appeal.

3. The appellant has assailed the impugned order of reduction of his special pay on the following grounds:

(i) That the special pay being included in the definition of the pay as given in section 2(g) of the Azad J & K Civil Servants Act (hereinafter referred to as Civil Servants Act) could not be reduced without taking punitive action for misconduct under the rules governing civil servants and consequently impugned order is illegal and ultra vires as the same is not made as a result of any disciplinary action against the appellant.

(ii) That the impugned order is repugnant to the Fundamental Right No. 15 guaranteed under section 4 of the Azad J & K Interim Cons titution Act, 1974 which ordains that all State Subjects are equal before law as the same is discriminatory in nature inasmuch as the special pay of Rs, 440 attached to the post of Deputy Secretaries to the Government was reduced to Rs. 275 under the impugned order, but was later on restored by the respondent whereas the appellant was denied the same treatment in the matter of restoration of his special pay.

(iii) That the refusal of the respondent to restore the special pay of the appellant while restoring the special pay of Deputy Secretaries to the Government is also contrary to the provision of rule 13(i) (b) of the‑Azad Government of Jammu & Kashmir Rules of Business framed under section 58, Azad J & K Interim Constitution Act, 1974 which makes the Department of Services and General Administration responsible for the co‑ordination of the policy of all departmental with respect to the services under their control so as to secure con sistency of treatment.

(iv) That it is a uniform and the settled policy of the Government of Pakistan that where pay including special pay of any post is reduced with immediate effect then the pay of the existing incumbent of such a post is invariably protected.

(v) That the impugned order is also illegal by reasons of its being retrospective in effect.

(vi) On the basis of the above grounds it is prayed by the appellant that impugned order be set aside and the special pay of Rs. 440 p.m. drawn by the appellant‑be restored w.e.f: 1‑6‑76.

4. The respondent was proceeded against ex parte as it remained unre presented throughout the proceedings of the case although notice of this appeal was duly served upon it. .

5. We have heard the appellant, and also gone through the relevant record. After taking into consideration the facts of the present case we have come to the conclusion that the present appeal being hit by proviso (a) to section 4 of the Service Tribunals Act is not maintainable and thus is liable to be dismissed on this score alone without going into the merits of the case. It would be advantageous to reproduce the above‑stated proviso which reads as follows:‑‑

6. Section 4, Proviso (a)

7. "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.

8. Provided that: ‑

(a) Where an appeal, review or representation to departmental authority is provided under any law, regulations or rules for the time being enforced, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review of representa tion to such departmental authority and period of such appeal, appli cation or representation was to be preferred.

9. As is quite clear from the plain reading of the above‑quoted provision of law the Civil Servant aggrieved by an order of competent authority made in respect of the terms and conditions of his service is entitled to prefer an appeal before the Service Tribunal against it subject to the condition that he in the first instance avails of the departmental remedy provided to him under the relevant service law or rules. But in the instant case we are of the opinion that the appellant had failed to have recourse to departmental remedy provided under the relevant service rules in force at the time against the impugned order before filing the present appeal, at the time of taking the impugned order the Civil Servants Act had been enacted which governs the terms and conditions of the civil servants, under section 23(1) of the said Act, Government is competent to make rules as may appear to it to be necessary or expedient for carrying out the purpose of the said Act. But as at the time of passing the impugned order the Government had not as yet made any rules in exercise of the powers vested in it under the aforesaid provision of law the rules regarding right of appeal, revision and review given to the civil servant in K. S. R. were applicable to the appellant as the same would be deemed to have been made by the Government under section 23(1) of the Civil Servants Act in view of the provisions contained in sub‑clause (2) of aforesaid section of the said Act. Rule 49 of K. S. R, Vol. I provides that the aggrieved civil servant may file a review petition against an order made by the Government within a period of ninety days from the date of its issue. The appellant therefore, had right to file a review appli cation before the Government against the impugned order but he has failed to have resort to above departmental remedy against the impugned order enjoyed by him as a right under the service law applicable at the relevant time with the result that this Tribunal is debarred from entertaining his present appeal.

10. The case of the appellant regarding his availing of departmental remedy before coming to this Tribunal is that he had filed an appeal on 10‑10‑76 before the Government against the impugned order and in support of this plea he has appended with the memo of appeal a copy of the same which is Annexure A‑5. The perusal of the said copy of the appeal would show that the same was addressed and filed before the Chief Secretary to the Government. It hardly needs mention that in the first place Po appeal lies against the order made by the Government and as stated earlier, only a review petition is competent against it and secondly it makes no sense to file an appeal against the Government order to the Chief Secretary who is not empower‑.d under any law or rule to hear appeal against the Govern ment order relating to services matters of its employees.

11. In this view of the matter the so‑called appeal against the impugned order filed by the appellant may, at the most, be considered to be a miscellaneous application to the Chief Secretary which, by no stretch of imagination, can be treated as an appeal or review petition to the Govern in terms of the provisions of the K. S. R. Moreover, there is nothing on l record to show that this document was ever treated as a review petition or placed before the Government for consideration and proper orders. The assertion of the appellant in para. 5 of his memo of appeal that his appeal was rejected by the Government vide order dated 8‑7‑79 copy of which is Annexure A‑6, is not factually correct. As the reading of the afore said Annexure would show that it was not the appeal dated 10‑10‑i6 filed by the appellant that was rejected but it was his application dated 13‑11‑78 con taining a request for the payment of special pay of Rs. 440 p.m. to him which was not accepted by the authority to whom the said application was made and the appellant was accordingly informed through a letter which is alleged by him to be the rejection of his appeal against the impugned order. This intimation of rejection about the non‑acceptance of his application cannot also be termed as Government order as the same has not been issued in the name of President and is only issued under the signature of the Section Officer under the instruction of some officer senior to him, probably the one to whom the appellant had addressed his aforesaid application. Even if for the sake of arguments the appeal filed by the appellant to the Chief Secretary is treated to be a review petition to the Government, it was time‑barred in asmuch as period of ninety days prescribed for filing a review petition before the Government by the relevant rules had already expired at the time of it presentation. The impugned order is dated 20‑6‑76 whereas the departmental appeal is said to have been filed on 10‑10‑76 which means that it was filed about twenty days after the expiry of the period allowed for filing the review petition under relevant rules. Thus the appeal filed by the appellant being time -barred, it cannot he held that the appellant had fulfilled the condition of his preferring a review application to the Government provided under rules against the impugned order which was a prerequisite for the entertainment of his appeal by this Tribunal when the proviso (b) to section 4 of the Act burdens the aggrieved civil servant with an obligation to avail of departmental remedy provided by the relevant law against the order of the departmental authority of which he feels aggrieved himself before exercising his right of appeal against the said order before the Service Tribunal it warns that the depart mental remedy provided to the aggrieved civil servant under the law or ruling should be availed of within the time prescribed by such law or rule. Thus a civil servant aggrieved by an order of the competent authority made in respect‑ of the terms and conditions of his service does not avail of the right of departmental remedy against it within time prescribed for the purpose under the relevant service law or rules then he would be deemed to have foregone his such right with the result that the proviso (b) to section 4 of Act, comes into play and his right of appeal against the said order before the Service Tribunal is lost. For the above reasons the appellant G has failed to exercise his right to prefer a review petition against the impugned order before Government in terms of Article 49 of K. S. R., Vol. I with the result that he is debarred from holding an appeal against the impugned order before the Service Tribunal as aforesaid provision of the Act stand in his way to do so.

12. The nutshell of the above discussion is that the appellant before filing the present appeal has not filed any review petition against. the impugned order to the Government in spite of the fact that rule 49, K. S. R., Vol. I inforce at the relevant time vested him with such a right and that due to this lapse on his part he has deprived himself of his right to seek redress of his grievances against the impugned order before this Tribunal.

13. For the reasons stated above we do not find it necessary .to go into the merits of the appeal and dismiss the same on the ground of being incompetent.

14. In the circumstances of the case parties are left to bear their own costs.

15. Appeal dismissed.