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Service Appeal No.331 of 1986, decided on 25th August, 1986.

---S. 4, proviso (a)--Promotion of civil servant subsequently withdrawn--Departmental remedy not availed--Appeal before Tribunal, maintainability of--Withdrawal of promotion order by Authority from whose order appeal was maintainable to departmental authority but no such appeal preferred--Appeal against demotion, held, would not be maintainable before Service Tribunal unless remedy allowed by law, before departmental authority was exhausted.

---Ss. 4 t 5--Service Tribunal--Powers and jurisdiction--Tribunal being Court of justice, held, would not ordinarily set aside order passed by Authority, on tech al grounds, unless it was satisfied that there had been injustice to aggrieved person.

---S. 10--Azad Jammu and Kashmir Civil Servants (Appointment and Condition of Service) Rules, 1977, R.7--Appointments by promotion- Requirements--All appointments by promotion would be probationary for one year--Competent authority in exercise of its powers, held, would be competent to revoke without show-cause notice, any order of appointment or promotion, within period of probation.

---S. 10--Azad Jammu and Kashmir Civil Servants (Appointment and Condition of Service) Rules, 1977, R. 7--Azad Jammu and Kashmir Service Tribunals Act, 1975, S. 4--Withdr&wal of promotion within probationary period--Effect--Reversing of unjustified promotion order within probationary period by competent authority, held, would not amount to illegality--Question of issuance of show-cause notice would only arise after period of probation had expired--Appeal being devoid of force was dismissed in limine.

Khawaja Muhammad Saeed for Appellant

Nemo for Respondents.

Date of institution: 4th August, 1986.

--This appeal was taken up for preliminary hearing on 10-8-1986. The learned counsel for the appellant was heard. He stated that the appellant was promoted as Senior Teacher vide order of the Director Education, dated 28-2-1984 and the order was given retrospective effect from 31-1-1984. Later on according to the learned counsel, the order of reversion was passed on 31-10-1984, without giving the appellant an opportunity of being heard. According to the department, the appellant was junior and his promotion made on 28-2-1984 effected the seniority of certain other officials, therefore, he was demoted to the post, from which he was promoted. The learned counsel for the appellant argued that the order passed without issuing show-cause notice was violative of principles of natural justice and as such it was a nullity in the eye of law. No other point was agitated by the learned counsel for the appellant.

2. In our view the appeal is not maintainable for the following reasons:-

(i) The order was passed by the Director of Education on 31-10-198 and appeal lies to the higher authority against the order passed b departmental authority. An appeal is not maintainable before this Tribunal unless remedy allowed by law, before the Departmental Authority is exhausted. In the case, in hand, no appeal is shown to have bee submitted to the higher authorities. A copy of appeal has been annexed with the appeal, presented in the Tribunal. This copy is addressed t the Director of Education. The document does not amount to an appeal, required to be submitted to the appellate authority because it had bee submitted to the same authority, which passed the original order. The words " 3 L " have been also added to this appeal, which seem to' have been done at the time of institution of appeal, before this Tribunal. The order passed on the appeal, by Director Education on 5-7-198 shows that the appeal was presented to him which was dismissed b him, being without merit. In the appeal, before us, it has been shown in the typed material that review petition was made to the Director Education but later on the words "appeal" have been also added in before the words "review petition" in some paragraphs of the memorandum of the appeal, which shows that the appellant is not clear himself whether he submitted an appeal or review petition. At any rate such an appeal or review petition, which is not presented to the proper authority, cannot be treated as appeal. Thus no attempt to avail the remedy provided before the appropriate appellate authority seems to have been made by the appellant. Hence the present appeal is hit by proviso (a) of section 4 of Service Tribunal Act, 1975.

(ii) The appellant has not denied the assertion of the department that he was junior to some other teachers. He has only raised technical objection of non-issuance of show-cause notice. This Tribunal is a Court of justice and will not ordinarily set aside an order on technical grounds, unless it is satisfied that there has been injustice to the aggrieved person.

(iii) The promotion is alleged to have been made, vide order, dated 28-2-1984, and that order has been set aside on 31-10-1984, almost 8 months after the issuance of that order. All appointments by promotion are in the first instance probationary for one year, in view of sub-rule (1) of rule 7 of Azad Jammu a Kashmir Civil Servants (Appointment and Condition of Service) Rules, 1977, reproduced below:-

"7.--(1) A person appointed to a post in a grade against substantive vacancy shall remain on probation for a period o two years, if appointed by initial recruitment, and for a period of one year, if appointed otherwise; provided that the appointing authority may extend the period of probation by a further period not exceeding two years in all."

The competent authority in exercise of its power under section 10 of the Azad Jammu a Kashmir Civil Servants Act 1976, is competent to revoke without a show-cause notice any order of appointment o promotion, within the period of probation. The relevant part of the rule is reproduced below:-

10. Termination of service.--(1) The service of a civil servant may be terminated without notice;

(i) during the initial or extended period of his probation:

Provided that, where such civil servant is appointed by promotion on probation or, as the case may be, is transferred and promoted on probation from one grade, cadre or post, his service shall not be terminated so long as he holds a lien against his former post, grade, or cadre, and he shall be reverted to his former grade, or as the case may be, cadre or post."

3. In view of the above provisions of law, no illegality has been committed in the present case, by the Director of Education, in reversing an unjustified order of promotion of the appellant during the period o probation. Question of issuance of show-cause notice would only arise after the period of probation, is deemed to have expired.

4. For the foregoing reasons, the appeal is dismissed in limine.

A. A Appeal dismissed

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