1984 PLP (C (PLC)

Zafar Iqbal Raju for Respondent No.

2. Manzoor Mohsin, Assistant, Office of the Deputy Commissioner Faisalabad has filed this appeal to the Tribunal, wherein he has impieaded the Commissioner, Faisalabad Division, Faisalabad, Abdul Majeed Javed, Junior Clerk, Deputy Commissioner Office, Faisalabad and the Deputy Commissioner, Faisalabad as respondents.

2. By virtue of this appeal, the appellant has prayed that the order dated 3rd October, 1983 of respondent No. 1 be set aside, having no legal consequence at all.

3. Brief facts of the case are that Manzoor Mohsin, appellant joined as Junior Clerk on 14th October, 1961 in the Deputy Commis sioner's Office, Faisalabad and on 8th December, 1982, the appellant was given senior grade by the Selection Committee and was posted as Senior Clerk. Two posts of Assistants in the Deputy Commissioner's Office Faisalabad were advertised in the paper, on the basis of direct recruitment the qualification being graduates. The appellant was selected for the post of Assistant by the Selection Committee and appointed as Assistant vide order dated 14th June, 1983 of the Deputy Commissioner, Faisalabad (Annexure 'A'). The contesting respondent No. 2, Abdul Majeed Javed, Junior Clerk, Deputy Commissioner's Office, Faisalabad made, an appeal to the Commissioner, Faisalabad Division, Faisalabad against this appointment of Manzoor Mohsin as Assistant in the office of the Deputy Commissioner, Faisalabad. The appeal was accepted by the Commis sioner, Faisalabad Division, Faisalabad vide his order dated 3rd October, 1983. The order of the Deputy Commissioner was set aside and it was directed that Mr. Abdul Majeed Javed be appointed as Assistant vide the appellant with immediate effect. Hence this appeal.

4. I have heard the parties i. e., Mr. Masud Ahmad Riaz, Advocate on behalf of the appellant, Mr. Zafar Iqbal Raju, Advocate for respon dent No. 2 and the learned District Attorney for respondents Nos. 1 and 3.

5. A preliminary objection has been raised by the learned District Attorney and the learned counsel for the respondent No. 2 that the appeal is premature as the appellant has not exhausted tithe Department remedy, because he has not availed it by filing a representation before next higher authority against the impugned order, dated 3rd October, 1983, passed by the Commissioner, Faisalabad Division, Faisalabad. He has argued that under section 21 of the Punjab Civil Servants Act, 1974 it was mandatory for the appellant to file a representation, to next higher departmental authority before filing the present appeal. This appeal being premature is not maintainable before the Punjab Service Tribunal.

6. The learned counsel for the appellant has rebutted the above arguments by submitting that under section 21 (ibid) only one representation is provided and since respondent No. 2 has already filed representa tion and the impugned order dated 3rd October, 1983 was the final order and as such no second representation was necessary on the part of the appellant. He has further argued that as far proviso (2) section 21 ibid, no representation is provided in the matters relating to the determination of fitness of a person to hold a particular post. He has, therefore, argued that since the matter under appeal relates to determination of fitness of appointment of the appellant and as such he was not under legal obligation to file any representation before the next higher authority viz. Board of Revenue. It has been argued by the learned counsel for the appellant that the order of respondent No. 1 setting aside the selection made by the departmental selection committee regarding fitness/selection of the appellant as Assistant was void ab initio inasmuch as he had no jurisdiction to entertain representation/appeal of respondent No. 2 against the appellant's selection and appointment. The learned counsel for the appellant has also made reliance upon the Commissioner's own decision in the case of Allah Rakha Qureshi v. Haji Muhammad Jamil, Assistant of the Deputy Commissioner's Office, Faisalabad and two others. Decision in this case was announced on 17th July, 1983, wherein the Commissioner had taken a view that no representation was competent before him in the matter relating to the determination of fitness of a person. Another case is that of Abdul Qayyum Butt v. Haji Muhammad Jamil and 2 others, decided by the same Commissioner on 17th July, 1983 in which he dis missed representation/appeal on the same basis. The 3rd case is that of Qari Muhammad Anwar v. Noor Muhammad and another, decided on the same date f. e. 17th July, 1983 on the same point by the learned Commis sioner. Decisions in these three cases have been placed on record. Accordingly, it has been submitted by the learned counsel for the appellant that the respondent No. 1, Commissioner, Faisalabad Division, Faisalabad has acted in the case of appellant without jurisdiction and the appeal was not maintainable before him.

7. I have given my anxious thought to the arguments of the parties to settle the issue regarding maintainability of this appeal before this Tribunal. No doubt, the impugned order dated 3rd October, 1983 was passed by the Commissioner, Faisalabad Division, Faisalabad on the representation of respondent No. 1, yet it did not attain finality as far as the appellant is concerned. The order dated 3rd October, 1983, by respondent No. 1, was passed for the first time against the appellant, hence it was obligatory upon him to file representation to next higher departmental authority as laid down under section 21 of the Punjab Civil Servants Act, 1974. Since he has not done so, the appeal is premature and is not maintainable as for section 4 (1) (a) of the Punjab Service Tribunals Act, 1974. As a matter of fact, right of representation under section 21 is an individual's right and unless a civil servant avails that right, he cannot under the law approach this Tribunal directly.

8. The upshot of the above analysis of the case is that the appeal is premature and is not maintainable before this Tribunal. The appellant is directed to exhaust the remedy by filing representation to the next higher authority against the impugned order dated 3rd October, 1983, of respon dent No. 1, i. e. the Commissioner, Faisalabad Division, Faisalabad. The appeal is disposed of accordingly, There are no orders as to costs. M. I. Order accordingly.