1979 PLP 469 (SCMR)

G. H. Abbasi, Advocate and M. Anwar Ali, Advocate‑on‑Record for Appellant (in both the Appeals). Imam Ali G. Kazi, Advocate and M. Memon, Advocate‑on‑Record for Respondents Nos. 3 and 6 (in both the Appeals). A. Sattar Shaikh, Assistant Advocate‑General and S. M. Abbas, Advocate -on‑Record for Respondents Nos. 1. 2, 4 and 5 (in both the Appeals). Date of hearing : 17th April, 1979. ASLAM RIAZ HUSSAIN, J.‑

This judgment will dispose of Civil Appeal No. K‑5 of 1978 filed by Ikramuddin Syed and Civil Appeal No. K‑6 of 1978 filed by Taj Mohammad Qureshi.

2. The two appeals are directed against the majority order of the Sind Service Tribunal, Karachi, dated 25th of March 1976, whereby their appeals before the Tribunal were dismissed.

3. The facts briefly are that Mr. Ikramuddin was appointed as proba tionary Mukhtiarkar on 18‑8‑1953 while Taj Mohammad Qureshi was appointed as probationary Mukhtiarkar on 17‑3‑1954. At that time respondents 3 to 10 were officiating as temporary promote Mukhtiarkar. The two appellants were therefore senior to respondents 3 to 10 and were shown as such in the Seniority List published in 1959 and 1970. They continued to be shown as senior till 1975. But in the List prepared in 1975 respondents 3 to 10 were shown as being senior to them vide Notification dated 4‑8‑1975. This List was published on 27‑9‑1975, but according to the appellants, they came to know about the publication of this Seniority List somewhere in the middle of October 1975. Instead of a departmental appeal under section 23 of the Sind Civil Servants Act, 1973 they straightaway filed appeals before the Sind Service Tribunal on 22‑10‑1975 under section 4 of the Sind Service Tribunals Act, 1973. These appeals were dismissed by the Tribunal on 4‑11‑1975 as premature on the technical ground that as provided in proviso (a) to section 4 of the Sind Service Tribunals Act, 1973, where an appeal to a departmental authority is provided for under the Service Tribunals Act, 1973, no appeal shall lie to the Service Tribunal unless the aggrieved civil servant has first preferred an appeal to such departmental authority.

4. According to the appellants the departmental authority in their case was the Chief Secretary, Sind and they had not filed the appeals before him because it was he himself who had approved the impugned Seniority List. But after the observations made by the Service Tribunal while dismissing their appeals both of them filed appeals before the Chief Secretary on 5‑11‑1975 but no action was taken on them. Therefore on 3‑3‑1976 after the passage of 90 days, they again filed appeals before the Service Tribunal in accordance with proviso (a) to section 4 of the Sind Service Tribunals Act, 1973. The appeals came up for hearing before the Tribunal on 25‑3‑1976. While the Chairman of the Tribunal was inclined to admit the same the other two Members of the Tribunal did not agree and recorded separate orders dismissing the appeals in limine. Their reason for dismissing the appeals was that the appellants had not filed the departmental appeals within the prescribed period of 30 days and had thus not complied with the mendedatory provisions of law as contained in proviso (al to section 4 of the Sind Service Tribunals Act, 1973. It was observed further that the appeals subsequently filed by the appellants before the Chief Secretary were not competent as they were time‑barred and the delay in filing the appeals could not be condoned because section 5 of the Limitation Act does not apply to those appeals. Being aggrieved with the aforementioned order of the Service Tribunal the appellants filed their respective petitions for special leave to appeal before this Court and leave to appeal was granted to them by an order dated 25‑1‑77.

5. The learned counsel for the appellants vehemently argued before us, firstly, that they had not filed an appeal before the Chief Secretary because he himself had approved the impugned Seniority List and secondly that it was for the departmental authority (Chief Secretary, Sind) before whom they had subsequently filed appeals under section 23 of the Sind Service Tribunals Act, 1973, to decide whether or not the appeals were time‑barred, after determining as to when the period of limitation had started running against the appellants. He argued further that provisions of section 5 of the Limitation Act were applicable to appeals under section 23 of the Sind Service Tribunals Act, 1973.

6. We feel that we need not consider the above‑noted contention because the appeals are liable to be dismissed on a different ground. According to proviso (a) to section 4 of the Sind Service Tribunal Act, 1973 no appeal would lie to the Service Tribunal in a case where a appeal before the departmental authority is provided for, unless the Government servant first files an appeal before such departmental authority, and a period of 90 days has elapsed after filing of such an appeal but no action has been taken. The Service Tribunal was therefore justified in dismissing the first appeals filed by the appellants before it. As to the appeal filed by the appellants before the Service Tribunal for the second time, even if it be assumed that the appeals be fore the Chief Secretary, Sind were filed within the prescribed period of 30 days, they had not file the appeals before the appropriate departmental authority because as provided at Sr. No. 5 in the Schedule to the Sind Civil Servants Rules, 1975, framed under section 26 of the Sind Civil Service Act, 1973, where the authority making the order' is the Chief Secretary the authority competent to hear the appeal or entertain a representation under section 23 of the Sind Civil Servants Act, 1973, is the Chief Minister. In other words, since the appellants had not filed their appeals before the competent authority they could not be said to have fulfilled the condition precedent for filing an appeal under section 4(a) of the Sind Service Tribunals Act, 1973. As such their appeals before the said Tribunal were not competent, and were therefore liable to be rejected. Consequently without going into the contentions raised by the appellants' counsel we dismiss the appeal as being without any merit. Appeal dismissed.