1984 PLP (C (PLC(CS))

ABEEDULLAH JAN (MEMBER).‑The case under consideration is the appeal of Mr. Muhammad Usman, under section 4 of N.‑W. F. P. Service Tribunals Act, 1974, calling in question the respondent's order, dated 29th May, 1980, whereby the appellant's claim for grant of pay in Grade‑17 was rejected.

2. The facts leading to the present appeal,' briefly, are that the appellant was serving as Excise and Taxation Inspector, Peshawar, in Grade

11. On 3rd May, 1979, he was posted as Excise and Taxation Officer in original pay and grade by the Secretary to the Government of N.‑W. F. P. Excise and Taxation Department. The appellant assumed the charge of the office of Excise and Taxation Officer, Kohat on 6th May, 1979 (F. N.). The appellant met with an accident and remained on medical leave from 8th December, 1979 to 5th May, 1980. Thereafter, the appellant, due to ill‑health, proceeded on L. P. R. with effect from 6th May, 1980.

3. The appellant, in April, 1980, submitted an application to Secretary to the Government of N.‑W. F. P. Excise and Taxation Depart ment claiming pay and allowance in Grade‑17 with effect from 6th May, 1979 (F. N.). The Board of Revenue rejected the request and informed the appellant that his case for promotion in Grade‑17 was neither approved by the Provincial Selection Board nor orders were issued by the Provincial Government in Grade 17 as such the appellant's claim with regard to grant of Grade 17 is misconceived and illegal.

4. The appellant submitted a representation to the Governor N.‑W.F.P. on 9th July, 1980 against the orders of rejection passed by the Secretary, Excise and Taxation, Government of N.‑W. F. P. on 29th May, 1980. The appellant also preferred appeal in this Tribunal on 15th July, 1980 without waiting for the expiry of 90 mandatory days. The attention of the counsel for the appellant was drawn towards this apparent inadequacy and immaturity of the appeal. The counsel produced three different authorities of the Superior Courts to prove that the appeal could be taken up and decided on merit without the expiry of ninety (90) days as given in' section 4 (a) of N.‑W. F. P. Service Tribunals Act, 1974 provided these ninety days expired during the pendency of the case. The authorities quoted are :‑ (i) Rafiq Ahmed Saleh 1977 P L C (C. S. T.) 110. (ii) Manzoor Ahmad Khan P L D 1976 Lah. 856. (iii) Messrs Wahab‑ud‑Din & Sons P L D 1971 Pesh. 236.

5. The view taken by the Service Tribunal (Federal) in the case reported in 1967 P L C (C. S. T.) 110 was that where a premature appeal is filed, it should not be dismissed on the ground of being premature because of the fact that the accused would prefer another appeal immediately which would be sustainable and this course of action would involve unnecessary delay and repetition of the proceedings of the Service Tribunal.

6. With due deference to the Federal Service Tribunal, we are unable to agree with the view so taken. In this connection, reference may be made to Proviso (a) of section 4 of the N.‑W. F. P. Service Tribunals Act, 1974 which lays down, inter alia, that 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 Authorities and a period of 90 days has elapsed from the date on which such appeal, application or representation was preferred. The word `shall' is very significant and cannot be lost sight of. Apart from this, the language used is plain and clear and does not admit of any ambiguity. It is well settled that where the language of a statute is plain and clear, it is clot for the Court or Tribunal to interpret it in a manner other than the one justified by the language used. In view of this position, we cannot possibly agree with the view taken in the said authority.

7. As regard the cases reported in P L D 1971 Pesh. 236 and P L D 1976 Lah. 856, it would be sufficient to say that the facts of the said cases were distinguishable and that they were not under the provision of the N.‑W. F. P. Service Tribunals Act, 1974. Apart from this, there was no such provision as contained in Proviso (a) to section 4 of the N.‑W. F. P. Service Tribunals Act, 1974 involved in those cases. In such a situation, the rule of law laid down in those cases cannot be attracted to the case before us.

8. There is another reason as well as to why we do not agree to the view so taken in the authorities aforementioned. If we set up a precedent by allowing this appeal, every aggrieved civil servant would prefer an appeal in the Service Tribunal simultaneously with submission of an appli cation for review or representation to Department Authorities thinking that by the time the appeal comes before the Tribunal for bearing, the period of 90 days would have elapsed. This practice, if allowed, would amount to giving meanings to section 4 (a) of the N.‑W. F. P. Service Tribunals Act, 1974 different than originally intended by the legislators.

9. We are, therefore, of the firm view that the present appeal having been filed before the period specified in section 4 of the Act, was pre mature and was, therefore, liable to dismissal on this score alone. We need not, therefore, go into the merit of the case.

10. For the reasons given above, the appeal fails and is thereby dismissed. Since the appeal fails on a technical ground, we make no order as to costs. A. E. Appeal dismissed.