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Appeal No. 45 of 1977, decided on 13th March, 1979.

‑‑‑‑ S. 4 read with Limitation Act (IX of 1908), S. 5‑Limitation‑ Condonation of delay‑‑Appeal filed beyond time by more than 1 years‑Application for condonation of delay filed only at time of arguments on point of limitation raised by respondent‑‑Reasons advanced (1) impugned order of promotion passed at back of and without opportunity of hearing to appellant, and (2) appellant seas unaware of impugned order‑Personal hearing while passing such executive order, held, not practicable‑Records indicating that appellant had knowledge of impugned order‑‑Appeal, in circumstances held, hopelessly time-barred and without sufficient grounds for condonation of delay.

‑‑‑‑‑ S. 4, proviso‑Departmental remedy before appeal to Tribunal‑ Mandatory‑ Remedy to be availed of in accordance with law and rules‑‑Review or representation lies only before competent authority prescribed under law and rules‑Review maintainable/before Govern ment‑‑Representation appeal before Minister, held, an exercise in futility and cannot serve the purpose of S. 4.

Sh. Abdul Aziz for Appellant.

Additional Advocate‑General for Respondent No. 1.

Ch. Shahwali for Respondent No. 2.

Date of institution : 16th February, 1977.

The facts of this service appeal under section 4 of the Azad Jammu and Kashmir Service Tribunal Act (hereinafter referred to an Act) briefly stated are that Miss Tahira Tallat appellant was Assistant Professor while Mrs. Zafar Sultana respondent No. 2 was Headmistress in the Education Department of Azad Kashmir Government when the latter was promoted and appointed Principal Degree College, Mirpur on the recommendation of Selection Board vide Government Order No. Admin /3142/74 dated 24th September, 1974 (Annexure A with the appeal).

Feeling aggrieved by the aforesaid order the appellant has challenged the same on the grounds that she being Assistant Professor in Grade 19 of N. P. S. and belonging to the College cadre was entitled‑to preferential promotion to the post of Principal Degree College as compared to the respondent No. 2 who besides being Officer of Grade 18 belonged to the School cadre. Thus on the basis of the seniority claimed on the grounds stated above she has prayed that impugned order be set aside and she be promoted to the post of Principal Degree. College from the date of issuance of the impugned order.

3. The respondents have contested the appeal and put in separate written statements in which besides controverting the appeal, certain legal objections have also been taken. As regards legal objections it is alleged that the appeal is time barred, that it is un-maintainable on ground of departmental remedy shaving not been availed of by the appellant before approaching Service Tribunal and that tire appeal is incompetent in view of the proviso(b), to section 4 of the Act inasmuch as it relates to the decision of the competent authority regarding the fitness or otherwise of the person to be promoted to a higher grade. On facts it is alleged that the respondent No. 2 was rightly promoted on the basis of merit and ability earned by her due to her long experience in the teaching profession and that the appellant had also served under the said respondent as teacheress while the latter was Headmistress of the High School and as such the appeal is not tenable.

4. Statement of Miss Tahira Talat appellant, Mr. Mohammad Nazir. Junior Clerk, Government Degree College Muzaffarabad and Mr. Fide. Mohammad Rathore Section Officer, Education were recorded by the Tribunal in order to ascertain as to whether or not the allegation of the respondents regarding the insertion of the departmental appeal after filing the present appeal was correct or not.

5. We have heard the learned counsel for the parties and have also gone through the relevant record of the case as well as the personal file of the appellant made available to us by the concerned Department. First of all we propose to dispose of the legal objections raised in the written statement as well as during the arguments by the learned counsel for the respondents, that the appeal is time barred as it has been lodged after the lapse of 6 months after the establishment of the Service Tribunal. This contention of the learned counsel for the respondent is factually correct. The present appeal has been filed on 17th February 1977 where as the Service Tribunal was established on 19th April 1975, which means that the present appeal is beyond time by more than one and a half years. No application for condonation of delay caused in filing the appeal was filed alongwith the appeal. It was only on 12th December 1977, when, arguments on the preliminary point of limitation had already been heard that an application for extension of time under section 5 of the Limitation Act was moved by the counsel for the appellant. This application is not accompanied by an affidavit and also does not contain any reason for extension of time. The only cause shown in the application for filing the appeal beyond limitation is that the impugned order had been passed at the back without hearing the appellant. To us both these grounds are not such as would entitle the appellant to extension of time under section 5 of the Limitation Act. It was not necessary for the competent authority to give the appellant an opportunity of hearing before passing the impugned order as in such like executive orders in respect of promotions and appointments it is almost impracticable to hear all the persons who may be affected by such orders before passing the same. The assertion that the appellant had no knowledge of the passing of the impugned order appears to be factually incorrect on the basis of the regard. The appel lant's own case is that she preferred a departmental appeal on 28th December 1974 which mans that she had knowledge of the making of the impugned order before the said date and if her knowledge of the impugned order is reckoned from 28th December 1974, even then it has taken her more that tyro years to file the appeal. Thus in the circumstances of the case a stated above we are of the opinion that no sufficient grounds have been made out for condonation of delay caused in film the present appeal within the, period of limitation. We therefore, hold that the appeal is hopelessly time barred.

6. The next legal objection raised by the learned counsel for the appellant is that under the proviso (a) to section 4 of the Service Tribunal Act the appeal is not entertainable as the appellant had failed to avail of the departmental remedy available to her before filing the same. This objection is also substantial ore and must prevail. In this respect the case of the appellant is that site hart fled an appeal against the impugned order on 28th December 1974, before the Education Minister and as such the objec tion of the respondent is without any force. On the other hand it seas contended by the learned counsel for the respondents that the appellant never filed any departmental appeal before the Education Minister as alleged by her and that with a view to meeting this legal flaw the appellant read inserted the appeal dated 28th December 1974, in the relevant record of the Office of the Education Secretary.

6‑A. After going through the statements of Mr. Nazir, Junior Clerk and that of Mr. Fida Mohd Rathore, Section Officer of Education Secretariat bearing No. SE/Appeals/18 we are convinced that the appellant never filed any departmental appeal before the Education Minister on 28th December, 1974 as alleged by her in her memo of appeal and that the departmental appeal appearing on pages 13 and 14 of the said file and exibited as CWA was in fact inserted in the relevant file after the filing of the present appeal in order to meet the objection of the respondents regarding the non‑maintainability of the appeal on the ground that no departmental appeal had been filed by the appellant before coming to this Tribunal. We have come to this conclusion for the following reasons :-

(i) That they appellant in para. 5 of the memorandum of appeal had originally stated that she had preferred a departmental appeal against the impugned order before the Education Minister on 4th January, 1976, through the Principal Girls Degree College, Muzaffarabad under No. 8 dated 4th January, 1976, but subsequently the said date was changed to that of 28th December 1974, through an amendment of the appeal after the objection of the respondents as to the incompetency of the appeal under proviso (a) to section 4 of the Act. The position taken in the amended appeal in this respect is not supported by the record of the Girls Degree College. Muzaffarabad as in the Despatch Register of the said institution there is to entry under No. 8 dated 4th January 1974, as alleged by the appellant and the entry under the said No. 8 dated 4th January, 1976, whereunder an appeal had been sent by the Principal to the Director, Education. Thus the date of appeal originally mentioned in the memo of appeal by the appellant seems to be correct.

(ii) That from the perusal of the concerned file No. SE/Appeals 18 of the Education Secretariat and the statement of Mr. Fida Mohammad Rathore, Section Officer, Education it appears that the page marking of the documents preceding and following the leaves of the appeal of the appellant dated 28th December 1974, halve been changed so as to accommodate the insertion of the leaves of the said appeal of the appellant which find place at pages 13 and 14 of the said file. The pages which were originally marked 13 and 14 have beets changed to Nos. 15 and 16 by striking out their original numbers.

(iii) That the appeal of the appellant dated 28th December 1974, placed on pages 13 and 14 of the Secretariat file referred to in sub‑pare. (ii) above does not appear to have been sent through the Principal Girls Degree College or Director, Education as alleged by the appellant in para. 5 of her memo oaf appeal: This fact by itself belies the statement of the appellant taken in this respect in the said para. of her appeal.

(iv) That there is neither any mention of the receipt of this appeal in the noting side of the file of the Education Secretariat nor the said appeal bears the stamp or receipt No. and date of the concerned office.

(v) That there is no noting of the office on this file which should have normally been there if received in a regular manner.

(vi) That by the impugned order Mrs. Farkhanda Chowdhary, Assistant Professor was transferred and posted as Principal Girls Intermediate College Akalgarh and Mrs. War Sultana respon dent No. 2 was promoted and appointed as Principal Degree College, Mirpur. The appellant has filed a review petition against the impugned order so far as it related to the transfer and posting of Mrs. Farkhanda Chowdhary which means that she was fully aware of the departmental remedy available to her against a Government order like impugned one. Thus it is inconceivable to think that the appellant would have resorted to a different made of remedy by filing an appeal against the impugned order before Education Minister so for it related to the promotion of Zafar Sultana respondent which course was quite contrary to the one provided under the law and previously correctly followed by the appellant in the case of Mrs. Farkhanda Chowdhary. Such inconsistent and contradictory action are not expected of an educated, reasonable and prudent person like the appellant who was keenly interested to get her grievances redressed. This fact by itself belies the contention of the appellant that she had filed an appeal against the impugned order before the Education Minister on 28th December 1974, and rather it goes a long way to substantiate the allegation of the respondents that the said appeal was placed on the relevant file of the Education Secretariat after the filing of written objections by the respondents with regard to non‑availing of departmental remedy before filing the present appeal.

Even if for the sake of arguments it is assumed that the appellant had filed an appeal against the impugned order to the Education Minister on 28th December, 1974, it in no way helps her in overcoming the objection of the respondent of her appeal being hit by proviso (a) to section 4 of the Act which makes it incumbent upon the civil servant to avail of departmental remedy provided by law or rules by way of appeal, review or representation before approaching the Service Tribunal for the redress of the grievances. In the instant case the appellants could only file an application for review of the impugned order to the Government as the same was the only departmental remedy available to her under rule 49 to K. S. R., Volume II. Thus preferring of an appeal by her against the impugned order before the Education Minister was an exercise in futility and departmental remedy required to be availed of under the said proviso of section 4 of the Act is a remedy to be sought from the competent authority and in this view of the matter it cannot be said that the requisite condition required to be fulfilled before preferring an appeal before this Tribunal was complied with.

For the foregoing reason we hold that the appeal is barred by limita tion and is also incompetent being hit by bar created under proviso (a) to section 4 of the Act and the same is accordingly dismissed. The parties are, however, left to bear their own costs.

The parties shall be informed of this order.

‑I agree.

Appeal dismissed.

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