2002 PLP (C (PLC(CS))

MUHAMMAD YUNUS SURAKHVI, J.‑‑‑This appeal by way of leave of the Court, is directed against an order passed by the Service Tribunal of Azad Jammu and Kashmir on 16‑11‑1999, whereby the amendment applications filed by the appellants, herein, were disallowed.

2. The necessary facts, giving rise to the present appeal, are that respondent No.5 Syed Muhammad Akbar Shah was inducted into the ser0ice of Forest Department of Azad Jammu and Kashmir on 13‑5‑1974, as Range Guard. The posts of Range Guard and Forest Guard are one and the same. Appellant No. 1 was appointed in the Forest Department as Kuth-Guard on 2‑2‑1975, whereas appellant No. 2 was appointed as Forest Guard on 16‑3‑1977. Vide order of Conservator of Forests Muzaffarabad Circle dated 21‑5‑1997, appellant No.2 Ghulam Sarwar was promoted to the post of forester in the Forest Department which order was challenged by respondent No. 5. in an appeal before the next higher authority viz. the Chief Conservator of Forests. The Chief Conservator of Forests vide order dated 9‑6‑1998, while accepting the appeal filed by respondent No.5 set aside the order of promotion of appellant No.2 and ordered the adjustment of respondent No.5 under rules. The Conservator of Forests Muzaffarabad vide order dated 11‑6‑199&, ordered the reversion of appellant No.2 from the post of Forester to that of Forest‑Guard and promotion of respondent No.5 from the Forest‑Guard to that of Forester. Appellant No.2 Ghulam Sarwar filed a second appeal before the Secretary Forest challenging his reversion order as well as the promotion order of respondent No.5. Respondent No.5 filed a writ petition in the High Court seeking a writ of prohibition against the Secretary Forest praying therein that he may be restrained from exercising that jurisdiction which he did not have under law for entertaining or disposing of a second appeal in service matter. The writ petition was accepted by the High Court. On 24‑6‑1999, appellant No.1 Muhammad Shafi filed an appeal before the Service Tribunal of Azad Jammu and Kashmir challenging the order of Chief Conservator of Forests dated 18‑5‑1998, whereby a departmental appeal filed by the said appellant against the seniority list was dismissed. Another appeal was filed by Appellant No.2 Ghulam Sarwar on 19‑6‑1999, whereby he challenged and order of Divisional Forest Officer Kerin Division Muzaffarabad dated 1‑10‑1998.

3. Both the appellants filed three different applications for amendment in their respective appeals as well as for grant of interim relief in the shape of issuance of temporary injunctions. Temporary injunctions in the shape of suspension of impugned order were issued at the instance of the appellants at the time of filing of appeals. On objection from respondents the temporary injunctions issued in favour of appellants were cancelled‑and the applications for amendment filed by them were also rejected by the Service Tribunal vide the order dated 16‑11‑1999. It is the aforesaid order of the Service Tribunal which is the subject of present appeal.

4. It was vehemently contended by Mr. Ashfaque Hussain Kiani, the learned counsel for the appellants, that the orders dated 9‑6‑1998, 11‑6‑1998 and 1‑10‑1998, were issued during the pendency of appeal as such the same could be challenged by seeking an amendment in the appeal instead of filing a fresh appeal. The learned counsel maintained that the Service Tribunal failed to take note of the fact that respondent No.5 was promoted to the next higher post of Forester without the recommendations of the Selection Committee. The learned counsel also submitted that orders dated 9‑6‑1998, 11‑6‑1998 and 1‑10‑1998, were not independent orders and the same could have been challenged by seeking an amendment in the appeal already filed by the appellant.

5. On the other hand Mr. Abdul Rashid Abbasi, the learned counsel for respondent No.5, contended that the appellants wanted the promotion order of respondent No.5 to be suspended by the Service Tribunal which was passed on 11‑6‑1998. The order was acted upon and the same was in the knowledge of the appellants. The learned counsel submitted that the orders dated 9‑6‑1998, 11‑6‑1998 and 1‑10‑1998, were independent orders which were appealable before the appropriate Departmental Authority or Service Tribunal within the prescribed period of limitation. The appellants having failed to challenge the same through regular appeals at the relevant time were trying to challenge the same indirectly by amendment in appeal in which the same orders were not impugned or challenged. The application for ramendment was thus rightly disallowed by the learned Service Tribunal.

6. Raja Shiraz Kayani, the learned Advocate‑General, appearing on behalf of respondents Nos. 1 to 4, fully supported the contentions raised by Mr. Abdul Rashid Abbasi.

7. After hearing the respective contentions of the learned counsel for the parties, it may be stated that the orders sought to be challenged by way of amendment are independent orders in themselves. The aforesaid orders were appealable before the appropriate Departmental, Authority and after then to the Service Tribunal within the prescribed period of limitation. The appeal in the instance case was filed on 24‑6‑1998, before the Service Tribunal, whereas the orders sought to be challenged by way of amendment are dated 9‑6‑1998 and 11‑6‑1998. Thus, it becomes clear that the aforesaid orders were not passed during the pendency of appeal filed by the appellants but prior to tiling of the same. However, order dated 1‑10‑1998, was passed during the pendency of appeal but the same relates to fixation of pay which also flows from the original orders. We have also noticed that the proposed amendments are not necessary for determining the real question in controversy between the parties in the present Cause. The appellants may seek the redress of their grievance by filing a departmental appeal or the appeal before the Service Tribunal as the case may be. ?

8. In view of what has been stated above, finding no force in this appeal, the same stands dismissed with costs. H.B.T./122/S (AJ&K)? ??????????????????????????????????????????????????????????????????????? Appeal dismissed.