1981 PLP (C (PLC(CS))

(6) That under rule 25 of K. S. R., Vol. II, promotion to a service or selec tion category is made on grounds of merit and ability seniority being considered only where the merits anti ability are approximately equal. (7) That order of pro forma promotion of respondent No. 3 is also illegal and mala fide as he was clearly junior to the appellant as already stated earlier. On the basis of the above grounds the appellant has prayed for setting aside the impugned Government order and for granting any other relief that may be considered appropriate by the Tribunal. The respondents Nos. 2 and 3 submitted their written objections and controverted almost all the plea raised by the appellant alleging:‑ (1) that the appellant too was transferred from the High Court to the Supreme Court and as such he was estopped from raising the objections of absence of lien of respondents or want of common roster of High Court and Supreme Court as according to him `what was good for the goose was also good for the gander'. (2) that the respondent No. 1 that is, the Government was fully competent to pass the impugned order in exercise of its review powers without calling any remarks or recommendation from the High Court. (3) that the High Court Establishment Rules, 1975, were enforced on 30‑12‑1975 whereas the review petition to the Government was filed long before. (4) that the appointment to the post of Deputy Registrar was to be made from the High Court establishment under rule 6 of the said Rules and that respondents claim to seniority is quite valid as they belonged to the High Court establishment. (5) that while recommending the appellant for appointment to the post of Deputy Registrar of the High Court (The Chief Justice) never said that the appellant was the only best among the whole establishment of the High Court but had remarked that the appellant was one of the best and most industrious officers of the Government. This remark by itself never meant that the appellant was recommended on the basis of his seniority and merit after properly considering him alongwith respondents. The counsel for respondent No. 1 did not file separate objections and rather contented with the statement before the Tribunal that written objections filed be respondents Nos. 2 and 3 may be treated as objections on behalf of respondent No. 1 as well. We have heard the counsel for the patties and have also carefully gone through the record of the appeal. After giving our serious thought and consideration to the legal point involved we are of the firm view that this appeal is incompetent and untenable in law and d; serves dismissal of a preliminary legal objection. A civil servant aggrieved by any final order of a departmental authority passed in respect of any of the terms and conditions of his service has got a valuable right of appeal under section 4 of the Service Tribunal Act, 1975, to seek his redress. But this right of appeal is not an absolute or unqualified one but is made subject to certain conditions under provisos 'a' to `c' section 4 of the said Act with the result that if any of these provisos hits t he right of appeal the civil servant in debarred from exercising the same. The first proviso (a) which is general in its nature lays down that where an appeal, review or representation to a departmental authority is provided under any law or rule the same must be exercise before approaching the Service Tribunal and if the aggrieved civil servant fails to comply with this condition precedent he shall lone lose his right of appeal. For the sake of facility and clear grasp of the matter section 4 alongwith proviso `a' is reproduced below:‑ "Section 4.‑Any Civil Servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service including disciplinary matter may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal." Provided that‑ (a) where an appeal, review or representation to departmental authority is provided under any law, regulations or rules for the time being inforce, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or represen tation to such departmental authority and period of ninety days has elapsed from the date on which such appeal, application or representa tion was to be preferred. This proviso is mandatory in nature and its non‑compliance involves serious and fatal consequences of loss of right of appeal. By the impugned order the appellant felt aggrieved for the first time as he was reverted from the post of Deputy Registrar. Under the relevant rule applicable to the civil servants the appellant had a right of review which he ought to have availed of before having recourse to Service Tribunal in exercise of his right of appeal as laid down as condition precedent under proviso `a' to section 4 of the Service Tribunal Act. The appellant has failed to avail of this right of review as is quite apparent from the record with the consequence that his appeal is bound to fail for non compliance of an obligatory and mandatory provision of law. The result is that the appeal deserves dismissal on this short legal ground and we need not go into the merits of the case. Hence the appeal is dismissed with no order as to costs. Appeal dismissed.