1994 PLP (C (PLC(CS))

BASHARAT AHMAD SHAIKH, J.‑‑‑The Service Tribunal has dismissed an appeal filed by appellant Abid Majeed Khan by accepting a preliminary objection about the maintainability of the appeal. The objection which prevailed with the Service Tribunal was that Asif Majeed Khan filed departmental appeal after filing the appeal before the Service Tribunal. The appeal before the Service Tribunal was filed on 7th of May 1992 and it was fixed for preliminary arguments on 12th of May of the same year. However, an application was moved for withdrawal of the appeal and the case was adjourned for hearing the learned counsel on this application. Somehow the disposal of the application was delayed and another application was meanwhile moved for withdrawal of the appeal. When both these applications came up for hearing on 8th of August, 1992 the appellant did not press the applications for withdrawal of the appeal. The applications were accordingly dismissed by the Tribunal and the case was fixed for preliminary hearing on 12th of August. Subsequently it was found that the appellant filed departmental appeal before the Secretary, Education which carried on it the date of 7th of May but was actually filed on 10th of May. However it was unsigned. He subsequently filed another appeal before the said Secretary on 20th of May in which he urged the same grounds as had been incorporated in the previous appeal. As already observed the appeal in the Service Tribunal was filed on 7th of May, 1992 in which it was averred that the appellant had availed of the departmental remedy by way of appeal. However, the Tribunal has found that the unsigned appeal was filed on 10th of May while a duly signed appeal was filed on 20th of May. Both these dates are subsequent to the date on which appeal before the Tribunal was filed. It was argued before the Service Tribunal on behalf of the appellant that the appeal had been filed before the Service Tribunal after filing the departmental appeal and without waiting for stipulated 90 days period fixed by proviso (a) of section 4 of the Service Tribunals Act but when. the appeal came up for preliminary hearing on 12th of August, 1992 ninety days had already elapsed and the appeal, which was initially premature, had become mature. Reliance was placed on two judgments of the Federal Service Tribunal reported .as Ikhlaq Ahmad v. Executive Engineer, Sheikhupura Division (1990 PLC (C.S.) 145) and Syed Shah v. Pakistan Water and Power Development Authority 1984 PLC (C.S.)

76. In Ikhlaq Ahmad's case the facts were that a civil servant filed departmental appeal but he approached the Service Tribunal without waiting for ninety days. However when the appeal came up for preliminary arguments 90 days period had expired. It was held by the Federal Service Tribunal that such an appeal has to be treated as a matured appeal and cannot be dismissed on the ground that it had been filed before the expiry of 90 days. The Tribunal held that Ikhlaq Ahmed's case did not apply to the facts of the present case because appellant Asif Majeed Khan filed appeal before the Secretary, Education after filing the appeal before the Service Tribunal. The other judgment was not found relevant. Mr. M. Tabbasum Aftab Alvi, the learned counsel for the appellant, contended in support of the appeal that Service Tribunal has wrongly held in one part of the judgment that both the departmental appeals filed by appellant were filed after filing appeal in the Service Tribunal. He contended that appellant's first appeal was filed on 7th and not on 10th May. The learned counsel contended that the principle laid down in Ikhlaq Ahmad's case was fully applicable. Apart from relying on Ikhlaq Ahmad's case the learned counsel also referred to another earlier judgment of the Federal Service Tribunal reported as Kh. Mahmood Ahmad v. Ministry of Education 1982 PLC (C.S.) 554 in which the Federal Service Tribunal for the first time laid the proposition which was followed in Ikhlaq Ahmad's case. Reliance was also placed on Malik Muhammad Hanif v. E‑in‑C, G.H.Q., Rawalpindi 1987 PLC (C.S.) 770 in which the Federal Service Tribunal expressed the same view. Sardar Rafique Mahmood Khan, the learned counsel for respondents, contended that the earlier departmental appeal filed by the appellant had no legal value as it was unsigned and it is to cure this defect that appellant filed another appeal on 20th of May. The learned counsel contended that the view of the Federal Service Tribunal expressed in the cases relied upon by the learned counsel for the appellant is not the correct enunciation of law. The learned counsel argued that proviso (a) to section 4 of the Service Tribunals Act prohibits filing of appeal unless 90 days have elapsed and the construction placed on this proviso by the Federal Service Tribunal amounts to declaring this provision of law as redundant which is the job of the law‑makers and not of the Courts. He relied on Mir Ghulam Nabi v. Secretary, Local Government and others Civil Appeal No. 14 of 1992, decided on 6‑10‑1992, a judgment of this Court in which this Court took the view that appeal before the Service Tribunal cannot be filed before the expiry of 90 days waiting period. It may be mentioned here that this judgment is sought to be distinguished by the learned counsel for the appellant on the ground that 90 days period had not elapsed when the appeal came up for preliminary hearing before the Service Tribunal. The learned counsel for the respondent also relied on S. Ali Raza Shah Naqvi v. Government of Sindh PLD 1979 SC 856 and S.H.M. Rizvi v. Maqsood Ahmad PLD 1981 SC

612. In Ali Raza Naqvi's case it was held by the Supreme Court of Pakistan that appeal before the Service Tribunal without filing departmental appeal wag not maintainable. It was also held while interpreting proviso (a) of section 4 of the Service Tribunals Act that this legal provision of the statute could not be overridden by the Court to hold an appeal competent which statute otherwise declared as incompetent. The observation was made while rejecting the plea that failure to file requisite departmental appeal was due to ignorance of correct law. In S.H.M. Rizvi's case the Supreme Court of Pakistan observed as follows:‑‑ ,"(10) The proviso (a) to subsection (1) of section 4 of the Service Tribunals Act relied upon by the learned, counsel for the respondent has not the slightest effect of detracting from the finality of the order to be appealed against. What it accomplishes is that even a final order should not be brought before the Service Tribunal if a right of appeal, review or representation to a departmental authority is provided under the law, unless that right has been availed of and the specified number of 90 days has elapsed without a substitutive orb r. The object of it all appears to be to encourage, ensure and emphasize the redress of service grievances within the departmental hierarchy before ventilating them in the Service Tribunal. As there was no final order ever passed on the objection of the respondent nor was the seniority list finalized his appeal was not competent under section 4 of the Service Tribunals Act." After giving anxious thought we regret we are unable to agree that the appeal filed with Service Tribunal before the expiry of 90 days waiting period becomes matured if the appeal comes up for preliminary hearing after the expiry of 90 days. According to the scheme of section 4 of the Service Tribunals Act a civil servant, who is aggrieved by an original or appellate final order made by a departmental authority, may prefer an appeal to the Service Tribunal within 30 days from communication of that order. There are four provisos appended to the main section and out of them proviso (a) is relevant 'for the purposes of the present case. The proviso reads: ‑‑ "(a) Where an appeal, review or representation to a departmental authority is provided under the Azad Jammu and Kashmir Civil Servants Act, 1976, 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 day has elapsed from the date on which such appeal, application or representation was so preferred;" The legal effect of a proviso is well known. A proviso controls, modifies and overrides the main section. Therefore, proviso (a) has to be given full effect. The relevant provision lays down that no appeal shall lie unless two conditions are met. Firstly that departmental appeal or representation has been filed and secondly that a period of ninety days has elapsed. We see no difference between the two conditions. If an appeal is maintainable in case condition of waiting for ninety days has not been fulfilled then appeal must be treated to be valid if the other condition has been violated. The argument that appal becomes mature if it comes up for preliminary hearing after the expiry of ninety days has not impressed us. The matters of limitation and maintainability are referable to the date on which a suit, appeal etc. is instituted and not the date on which it comes up of preliminary hearing. If this proposition is accepted then it would lead to anomalous results. If an appeal which has been filed before the expiry of waiting period comes up for hearing before the expiry of that period it will have to be dismissed but if it comes up for hearing after the expiry of that period it will be treated to be maintainable. It means that the law will become subservient to the will of the Service Tribunal and will not operate on its own strength. On the other hand the phraseology of clause (a) is clear that an appeal lies only when a period of ninety days has elapsed. It means that it does not lie earlier. The language used by the law‑maker is prohibitory in nature as it lays down that "no appeal shall lie . . These are the words of command and seen in light of the importance of this provision are clearly mandatory in nature and its violation cannot be condoned. In our view a Service Tribunal is competent to hear only that appeal which has been filed after a period of ninety days has elapsed after the filing of application for review or representation. It is a well‑known principle of law that when a statute confers jurisdiction upon a Tribunal of limited authority and statutory origin,: the conditions and qualifications annexed to it must be strictly applied. In this connection we may refer to Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division (PLD 1971 SC 61) wherein this principle was upheld by the Supreme Court of Pakistan. Although the Supreme Court of Pakistan in S.H.M. Rizvi's case mentioned earlier, was not dealing with this proposition directly but the observations in para. 10, reproduced above, lend strength to conclusions arrived at by us. In light of the view which we have formed it makes no difference even if the appeal was filed by the appellant on 7th of May as has been argued before us. Both the appeals filed by the appellant were filed, without expiry of 90 days period and would be hit by the mischief of proviso (a). We consequently hold that the appeal before the Service Tribunal was not maintainable and entailed dismissal on that short ground. The appeal is, I therefore, dismissed. H.B.T./33/SCA Appeal dismissed.