1978 PLP [C (PLC(CS))

HAMZO KHAN M. KURESHI (CHAIRMAN).‑

By this single judgment we propose to dispose of the above‑mentioned three appeals i. e. Appeal No. 182 of 11974, Appeal No. 14 of 1974 and Appeal No. 41 of 1975. These three appeals though filed before this Tribunal on different dates arise out of the same impugned order dated 15th October, 1974 giving common cause of action to the appellants and involving common points of law and facts. Briefly stated the facts leading to these appeals are that the appellants were working as the Agriculture Assistants in the Department of Agriculture in Khairpur Division. On 15‑10‑1974 a Cyclostyled order (Annexure A) was issued by respondent No. 1, reverting the appellants to the post of Field Assistants on the ground that their promotion was not in conformity with the West Pakistan Agriculture Department (Extension Wing) Sub ordinate Service Ruler, 1963. Respondents 4to 25 were promoted in place of the appellants by the same order. The appellants without filing the departmental appeal or making any representation to the relevant authority rushed to this Tribunal in appeal. During the pendency of Appeal No 182 of 1974, the learned Advocate for appellants Nos. 1. 3, 4, 6, 8, 9. 13 filed an application dated 2a‑6‑1975 with drawing their appeal. They were allowed to do so and their case was closed. The other appellants however pursued their appeals before us. The main contention in All the three appeals is that the order of respondent No. 1. reverting the appellants was illegal and void because they were senior to the respondents who were promoted vice them. At our direction, the department has placed on record the seniority list prepared by them in the year 1972. The respondents and the learned Assistant Advocate‑General have inter alia raised a legal abjection pointing out that these appeals were not maintainable under thro law because no final order was obtained by the appellants from the competent departmental authority by way of appeal, review or representation. Their contention is correct. It is an admitted position that the appellants had not filed departmental appeal, review or representation before corning to this Tribunal. As such no final order was obtained from the departmental authority. Their appeals would therefore be bit by Proviso (a) to section 4 of Sind Service Tribunals Act, 1973,which reads as under :‑ "Where an appeal, review or representation to a departmental authority is provided under the Sind Civil Servants Act, 1973, or any rules, against any such order, 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 a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred." In the light of above‑mentioned mandatory provisions of law we have no alternative but to come to the conclusion that the present appeal was not competent unless the Departmental remedies were exhausted. Even it specific departmental rules governing the appellants did not contain any provision regarding appeal to the competent authority, then also representation against the impugned order should have been made to the authority next above the authority which made the order as laid down in section 2 (2) of Sind Civil Servants Act, 1973. The contention of the learned Advocate for appellants is that the appellants were not barred from approaching this Tribunal in appeal before making a representation to the Departmental authority because the word used in section 23(2) above is "may" and not "shall". He contends that the appellants were not bound under the provisions of the above section to make representation to their Departmental authority before filing appeal in this Tribunal. It is correct that for the purpose of Departmental representation the word used in section 23(2) of Sind Civil Servants Act is "may" but for the purpose of appeal to this Tribunal the word used in Proviso (a) to section 4 of the Sind Service Tribunals Act is "shall". According to section 4 of Sind Service Tribunals Act, this Tribunal gets jurisdiction in a service matter only after the aggrieved civil servant has obtained a "final" order of his Departmental authority. The order cannot be called "final" unless all the Departmental remedies fire exhausted by way of appeal, review or representation provided in the Sind Civil Servants Act or Rules framed thereunder or the rules of the Department concerned. The result is that if the aggrieved person has not made a Departmental appeal or representation and obtained final order thereon or waited for 90 days after making the representation, he was debarred from filing appeal before this Tribunal. Since no departmental appeal or representation was filed by the appellants in this case, their appeals before this Tribunal are not maintainable and are accordingly dismissed. Each party is left to bear his own costs. Appeal dismissed.