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Case No. 331 /227 of 1983, decided on 23rd August, 1983.

‑‑S. 4 (1)‑(a)‑Appeal before Tribunal‑Not maintainable before availing of departmental appeal or representation ‑ Appellant aggrieved of reversion due to alleged erroneous fixation of seniority of respondent‑Order regarding seniority passed by Appellate Authority ‑ Appellant not making any appeal or representation against impugned order to departmental authority‑Appeal before Tribunal, m circumstances, held, premature and not maintainable- Contention that impugned order having been passed on basis of order of appellate authority right of appeal or representation stood availed, in circumstances, rejected.

S. H. M. Rizvi and S others v. Maqsood Ahmad and 6 others P L D 1981 S C 612 rel.

Mushtaq Masood for Appellant.

A. G. Humayun District Attornery for Respondents Nos, 1, 2 and 4.

M. A. Riaz Counsel for Respondent No. 3.

Muhammad Sarfraz has made this appeal under section 4 of the Punjab Service Tribunal Act, 1974 wherein he has impleaded Chief Engineer, Irrigation, Faisalabad Division, Faisalabad, Superintending Engineer, L. L. C: West Circle, Faisalabad, Muhammad Rafiq A. V. C. Qila Ramcery Khanki Division, Hafizabad District Gujranwala, and Superintending Engineer, H. Qr. Chief Engineer Office, Faisalabad, 'as respondents.

2. By virtue of this appeal, the appellant has prayed that the impugn ed order, dated 6th June, 1983 passed by respondent No. 1 be declared illegal. He has also prayed that the impugned Orders No. 7194‑99, dated 3rd July, 1983 and 7188‑93, dated 3rd July, 1983 passed by respondent No. 2 be also declared to be illegal and without any legal effect.

3. Brief facts of the case are that the appellant was appointed as Canal Patwari m the year 1968 and was promoted as A. V. C. in the year 1979 to the Lower Chenab Canal West Circle and was further promoted as Vernacular Clerk w. e. f. 28th March, 1983 and was posted as S. D. R. Werh Sub‑Division Irrigation Jhang. Muhammad Rafiq, respondent No. 3 was working as an A. V. C. in the SCAR P D D (West). This Circle was wound up in 1979 and he was allocated to L. C. C. West Circle vide Chief Engineer Irrigation, Faisalabad order, dated 10th October, 1979. By another order of the Chief Engineer, Irrigation Faisalabad, dated 14th October, 1979 the earlier order of his allocation of 10th October, 1979 was cancelled and the respondent No. 3 was allowed to remain in L. C. C. East Circle. Again vide order dated 15th May, 1982 of the Chief Engineer Irrigation, Faisalabad he was allocated to L. C. C. West. Circle. Consequently respondent No. 3 filed an application that his seniority as A. V. C. be fixed from the date of his appointment. The matter was referred to the Chief Engineer, Irrigation Faisalabad, by Superintending Engineer L. C. C. West Circle vide his letter, dated 24th February,' 1983, seeking the advice regarding fixation of seniority of the appellant in his‑circle as no terms and conditions in the letter transfer ring the A. V. C. had been mentioned. Vide order dated 6th April. 1983 it was decided by the Chief Engineer Irrigation, Faisalabad that official would rank junior in the L. C. C. West Circle as per contention of the Superintending Engineer, L. C. C. West Circle. Another order was passed on 6th June, 1983, by the Chief Engineer, Irrigation Faisalabad, regarding fixation of the seniority of the respondent No. 3 that he would get his seniority from the date of his continuous appointment in the grade and would not be placed at the lowest position. On this decision, Muhammad Rafiq A. V. C. respondent No. 3 was given pro forma promotion from 17th June, 1982 as Vernacular Clerk and from 17th February, 1983 as Assistant Clerk vide Order No. 7188‑93, dated 3rd July, 1983 passed by Superintending Engineer, L. C. C. West Circle, Faisalabad. In consequence of above order, the appellant was reverted vide impugned Order No.7194‑99, dated 3rd July, 1983 passed by S. E. L. C. C. West Circle. Hence this appeal.

4. I have heard the parties. The case was argued in detail by the learned counsel for the appellant and the learned District Attorney assisted by Mr. M. A. Riaz counsel for respondents.

5. It has been argued by the learned counsel for the respondents that in terms of section 4 (I) (a) of the Punjab Service Tribunal Act, 1974 the appellant should prefer an appeal or representation to the Departmental authority as provided under the Punjab Civil Servants Act, 1974, to exhaust the remedy as no appeal lies to the Tribunal unless the appellant has exhausted this remedy. As the appellant has not filed any appeal against the impugned Order No. 7194‑99, dated 3rd July, 1983 to the departmental authority, hence this appeal before the tribunal is not competent and not maintainable. The learned counsel for respondents has also made reliance on the judgment of Supreme Court of Pakistan, reported as in case of S. H. M. Rizvi and S others v. Maqsood Ahmad and 6 others (PLD1981SC612).

6. The above contention of learned counsel for the respondents has been rebutted by the learned counsel for appellant. He has submitted that the history of this case reveals that this is a case of wrong allocation of Mr. Muhammad Rafiq respondent No. 3, in L. C. C. West Circle, Faisalabad and allowing incorrect pro forma promotion to him on the basis of this allocation which has jeopardized the right of the appellant unlawfully. It has been also pointed out by the learned counsel for the appellant that respondent No. 3, was originally allocated to L. C. C. West Circle by order, dated 10th October, 1979, his allocation was changed in the L. C. C. East Circle vide order, dated 14th October, 1979 and again to L. C. C. West vide order dated 15th May, 1982 of the Chief Engineer, Irrigation, Faisalabad. Vide order dated 6th April, 1983 the respondent No. 3 was allocated junior most position in the circle in the seniority by the Chief Engineer, Irrigation, Faisalabad but later on the Chief Engineer, Irrigation, Faisalabad changed his earlier decision by giving the seniority to respondent No. 3 from the date of his continuous appointment vide order, dated 6th June, 1983. The above facts make it clear that the same authority has been passing contradictory orders in changing one position to another, at his own sweet will, without keeping in view the rights of the appellant. It was further pointed out by the learned counsel for the appellant that the impugned Order No. 7194‑99, dated 3rd July, 1983 passed against the appellant by the S. E. L. C. C. West Circle Faisalabad, which has been challenged by him in this appeal is in pursuance of impugned Order No. 7188‑93, dated 3rd March, 1983, passed by the Chief Engineer, Irrigation, Faisalabad vide his order dated 6th June, 1983. The higher authority/appellate authority in the case of the appellant is the Chief Engineer, Irrigation, Faisalabad on whose behest the impugned order dated 3rd July, 1983 against the appellant has been passed. Thus, the right of an appeal or representation to the departmental authority stood availed under the said circumstances. Hence this appeal is competent and maintainable by the tribunal.

7. I have given my anxious thought to the arguments of the parties and given also perused the record of this case.

8. I have also gone through carefully the impugned Order No. 7194‑99, dated 3rd July, 1983 through which the appellant, Muhammad Sarfraz, has been reverted as A.V.C. No doubt various orders concerning Muhammad Rafiq, respondent No. 3 have been passed by the Chief Engineer, Irrigation, Faisalabad/Superintending Engineer, L. C. C. West Circle, Faisalabad, regarding allocation, fixation of seniority and pro forma promotion but in case of Muhammad Sarfraz, the appellant, the only Order passed against him is No. 7194‑99, dated 3rd July, 1983 by S. E. L. C. C. West Circle, Faisalabad. Thus, the appellant is required to prefer an appeal or representation to the departmental authority to get a final order before coming to this tribunal, as per law settled by the Supreme Court of Pakistan, quoted in para. 5 above.

9. The upshot of the above discussion is that the appeal is premature and is dismissed as such. The appellant is directed to first exhaust the remedy of an appeal or representation to the departmental authority concerned to get the final order for coming to this Tribunal, if desired so.

There would be no order as to costs.

A. E

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