1988 PLP (C (PLC(CS))

Mazhar Imam for Appellant Imdad Hussain Government counsel for Respondents Date of hearing: 19th July, 1988. MUNAWAR ALI KHAN (CHAIRMAN).‑‑The appellant, Syed Tauhid Ahmad Jafri, was Vice‑Principal, Technical Training Centre, Kotri, when by Letter No. Lab (I)3‑12/76, dated 4th June, 1988 of Government of Sind, Labour and Cooperation Department, adverse remarks relating to the years 1983 and 1985 were conveyed to him. On receipt of the said letter, he made representation to the Secretary, Labour Department praying for expunction of the adverse remarks. Although the adverse remarks for 1983 were expunged, the adverse remarks for 1985 were left intact. Thereupon, the appellant filed appeal before the Chief Secretary, on 8‑3‑1987 and as the said appeal was not decided within the statutory period of 90 days, the appellant filed the present appeal with the prayer that adverse remarks for the year 1985 be expunged. We heard the arguments of the learned counsel for the appellant as well as of the learned Government counsel (Mr. Imdad Hussain). We also weut through the relevant record. As mentioned in proviso (a) to section 4 of the Sind Service Tribunals Act, 1973, it is mandatory for a civil servant to exhaust departmental remedy before coming to this Tribunal in appeal under the said section. The departmental remedy under the proviso means appeal, review or representation to a departmental authority provided under the Surd Civil Servants Act, 1973 or any rules. Reference to section 23 of the Sind Civil Servants Act, 1973 would show that if right of appeal or application for review is provided under the rules, the l aggrieved civil servant will avail such right within the prescribed period and in' case no such right is expressly available to him still he can make representation to the next higher authority within thirty days of the communication to him of the impugned order. In the instant case it is not disputed that A.C.R. which carried the adverse remarks was initiated and countersigned under "Instructions about the Confidential Reports" (hereinafter referred to as the said instructions). The said instructions obviously enjoy the status of rules. A comprehensive mechanism is provided in the said instructions which, inter alia, confers a right on the Civil Servant aggrieved by any adverse report/remarks to make representation for expunction thereof. In this connection paras. 42 and 43 of the said Instructions are relevant. They may be reproduced as under: "

42. Expunction of adverse remarks‑‑A person who is communicate adverse remarks can apply for the expunction of such remarks. But this should be done not later than one month from the date of receipt of the communication. The representation must be made in temperate and dignified language and no allegations of personal and malicious nature should be made; indiscreet and irresponsible allegations again‑t Reporting Officers will result in disciplinary action.

43. All representations about expunction of adverse remarks will be made through proper channel to the appointing authority as laid down in the Delegation of Power Rules." 1t would appear from the above paragraphs that the representation for expunction of the adverse remarks was to be made to the appointing authority. The appellant was admittedly Vice‑Principal having BS‑17 when the adverse report was communicated to him. According to rule 4(1) of the Sind Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, Minister concerned was competent to make appointments of BS‑

17. Therefore, the appellant was required to address the representation for expunction of the adverse remarks to the Minister. Para.3 of the Memo. of Appeal shows that the B appellant submitted proper representation dated 23‑6‑1996 to the respondent No. 2 namely Secretary, Labour and Cooperation Department. We have perused the appellant's representation addressed to the Secretary. There is no indication in the representation that it was intended to be placed before the Minister incharge of the Labour Department. Even otherwise, it was never placed before the said Minister but was rather disposed of by the Secretary at his own level. This is clear from the Government's communication dated 10th February, 1987 addressed to the Director, Manpower and Training and copy endorsed to the appellant. However, the learned counsel for the appellant argued that the initial representation made to the Secretary was actually intended for the Chief Secretary and, therefore his contention was that if the same was not forwarded to the concerned quarters, the appellant was not to blame. As stated above the representation for expunction of the adverse reports was to be made to the appointing authority which in the appellant's case was Minister and not the Chief Secretary. Accordingly the argument of the learned counsel was without any force. Even after the Secretary had turned down the appellant's representation, he did not approach the Minister but instead took the matter in appeal to the Chief Secretary. Thus, the appellant had made no representation to the prescribed authority namely the Minister concerned and as such the requirement of proviso (a) to section 4 of the Sind Service Tribunals Act, 1973 was not fulfilled. Consequently the appeal is liable to be dismissed on this ground as being not maintainable. Assuming for the sake of argument that the appellant's representation addressed to the Secretary was meant to be considered by his appointing, authority namely the Minister of the said Department, then in that case the date I of the said representation (23‑6‑1986) would be the starting point of limitation and the appeal was due to be filed before this Tribunal within 30 days after expiry of mandatory waiting period of 90 days. According to this calculation appeal B should have been filed latest by 20th October, 1986. However, it has been actually filed on 29‑6‑1987, thereby the appeal was delayed by about eight months. Accordingly it is time‑barred. Even application for condonation of the delay has not been filed. The learned counsel for the appellant has placed reliance on several authorities reported as 1985 P L C (C S) 214, 1985 P L C (C S) 1108, 1986 P L C (C S) 481 and 1986 P L C (C S)

773. We have perused these authorities. Obviously they deal with the merits of the cases reported therein. Since the present appeal is being dismissed on the legal grounds of limitation and non- maintainability, we need not go into the details of the aforesaid authorities. For above reasons the appeal is dismissed with no order as to costs. AA./164/Sr.S Appeal dismissed.