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Appeal No.328(R) of 1984, decided on 5th July, 1987.

‑‑‑S.4‑‑No final order on departmental representation of appellant communicated to him‑‑Appeal to Tribunal not competent‑‑Appointment of respondent on deputation in no way affect any terms and conditions of appellant or giving rise to any cause of action‑‑Appeal not competent.

‑‑‑S.4‑‑Expunction of adverse remarks in ACR‑‑Appeal to Tribunal can be made against expunction of adverse remarks only after such remarks have been conveyed to appellant and he has exhausted all available departmental remedies.

M.S. Siddiqui for Appellant.

Sardar Muhammad Amir Akbar Khan for Respondents.

Raja Muhammad Asghar Khan for Respondent No.1.

Date of hearing: 25th March, 1987.

‑It is the case of the appellant that in 1966 he was appointed as Range Forest Officer in the Northern Areas and he was promoted as Sub‑Divisional Forest Officer in NPS‑17 with effect from 20‑5‑1984, initially on ad hoc basis and subsequently his services were regularized retrospectively with effect from the date of initial promotion. By an order dated the 17th August, 1979, issued by the Kashmir Affairs and Northern Affairs Division, the appellant was posted as Divisional Forest Officer which post was in Grade‑18 but he was posted thereto in his own grade i.e. Grade‑17. The appellant submitted representations requesting for his formal promotion to Grade‑18 and his such representations were recommended by the Commissioner, Northern Areas. Thereon by an order dated the 10th of August, 1982, as clarified by a letter dated the 1st of December, 1982, the appointment of the appellant in Grade‑17 had been regularised with effect from 20‑5‑1974 but he was not allowed a formal promotion to Grade‑18, instead, by an order dated 19‑6‑1982 he was reverted from a Grade‑18 post, a Divisional Forest Officer, to a Grade‑17 post, a Sub‑Divisional Forest Officer, while two posts of Divisional Forest Officer were available in the Department. The appellant, therefore, after challenging his such reversion by a departmental appeal dated 27‑7‑1982, filed an appeal in the Service Tribunal being Appeal No.183(R) of 1982 which was disposed of in the terms that the appellant could not claim as of/right his retention on a Grade‑18 post in the absence of his formal promotion to Grade‑18 but shall be entitled to the emoluments of Grade‑18 for the period he held the post of Grade‑18. In the meantime by a notification dated 23‑2‑1981 the Establishment Division placed the services of Respondent No.1, Muhammad Rashid Khan, then Acting Deputy Director, Forests, in Grade‑18, in the Capital Development Authority at the disposal of the Kashmir Affairs and Northern Affairs Division for appointment on deputation in his own grade as Divisional Forest Officer against the vacancy caused by the promotion of Mr.M.Alam Khan to the post of Conservator of Forests and it was so managed by Mr.M.Alam Khan himself who is closely related to respondent No.1. Since the appellant was senior to the respondent No.1 by any standard, he protested against such induction of respondent No.1 and sent several telegrams and representations to the relevant authorities but all in vain. The appellant also had an interview with the then Martial Law Administrator, Zone‑E, who assured him that as he was already working in Grade‑18 post, he would be formally promoted to that post in due course but it was not so done as yet. On the other hand, the appellant learnt that afforts were being made to absorb respondent No.1 in the Forest Department of the Northern Area or at least to extend his deputation. The appellant, therefore, submitted a departmental representation dated the 31st of August, 1983, to the Additional Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad, whereby challenging the induction of respondent No.1 in the Northern Areas and extension in his deputation, he requested that the respondent No.1 be repatriated to his parent organization, the Capital Development Authority, Islamabad, and he (the appellant) be considered for promotion to Grade‑18 for any of the existing post in the Forest Department. The appellant received no reply thereto though he sent reminders on 28‑9‑1983, 30‑10‑1983 and 30‑11‑1983. On the other hand, by an order dated the 19th of February, 1984, issued by the Kashmir Affairs and Northern Affairs Division, approval of the Government to the extension in deputation of respondent No.1 for the period from 23-2-1984 to 22-3-1986 was conveyed, hence, this appeal.

2. It was submitted that the deputation of respondent No.1 from the Capital Development Authority was ultra vires and contrary to the relevant rules and, therefore, is void and the appellant was entitled to the promotion to Grade‑18 in view of his seniority and merits. It was further averred that the appellant reasonably suspected that his ACRs had been tampered with and damaged by respondent No.4 who is deliberately not communicating the adverse remarks to him and yet using them to the prejudice of the appellant. Urging that the aforesaid actions of the respondent are mala fide and colourable the following prayer has been made:‑

"In the circumstances, it is respectfully prayed that the record relating to initial deputation and subsequent extension of deputation of Respondent 1 as well as the ACRs written on the appellant since 1981, along with the record relating to his reversion in June, 1982, may kindly be moved and the initial induction and in any case, the current extension of deputation may be held to be without lawful authority and of no legal effect. The learned Tribunal may also be pleased to scrutinize the ACRs of the appellant from 1981 and if then contain any adverse remarks or are otherwise written by incompetent officers, then those should be declared, to be null and void, and if the appellant's career has been damaged (including his reversion in June, 1982) due to these illegal ACRs then the position should be set right and his reversion cancelled, and, in any case, the respondents should be directed to process his case from promotion to Grade‑18 and ante date it suitably in conformity with law. 'It is also prayed that further consequential directions and orders may also be issued, as may be found to be warranted by the enquiries of the case."

3. Apart from contesting the case on merits by controverting the stand of the appellant in the written statement filed by respondents No. 2, 3 and 4 and by contending that everything done in connection with deputation of the respondent No.1 as well as the posting of the appellant had been done ire conformity with the relevant statute and with the approval of the competent authority, in good faith and in public interest, the learned counsel for the said respondents raised serious preliminary objection about the competence and maintainability of the present appeal by urging that the appeal is barred by limitation and by proviso (a) to subsection (1) of section 4 of the Service Tribunals Act, 1973. It is to be seen that it stands admitted in the memo. of appeal that against the order dated 23‑2‑1981 of deputation of respondent No.1 the appellant had submitted a departmental representation for the first time on 31‑8‑1983. It is thus established that no proper departmental representation against the deputation of respondent No.1 was made by the appellant within the prescribed period and as such it shall be deemed that he did not make a departmental representation as provided by law and, therefore, the present appeal is clearly barred by proviso (a) to subsection (1) of section 4 of the Service Tribunals Act, 1973.

4. The contention of the appellant with regard to the question of limitation that the order of extension in deputation of respondent No.1 dated 19‑2‑1984 was the effective rejection of the appellant's departmental appeal is also devoid of substance, for, by no stretch of law or imagination, the aforesaid order can be treated as rejection of his alleged departmental appeal. Even if it is assumed without conceding that the appellant's representation dated 31‑8‑1983 was a proper departmental representation then either he should have approached this Tribunal within 120 days from 31‑8‑1983 as' provided in proviso (a) to subsection (1) of section 4 of the Service Tribunal Act, 1973, or otherwise he could come to this Tribunal only within thirty days of the communication of final order passed on his representation. It is an admitted position that 'no final order on they so‑called representation of the appellant has yet been passed or communicated to him. Thus, viewing from any angle the present appeal is incompetent.

5. Apart from the above it also needs to be noticed that the appointment of respondent No.1 on deputation in the Northern Areas, does not, in any way, affect any of the terms and conditions of the service of the appellant, simply because the appellant was to be promoted in due course in accordance with the relevant rules and against the departmental promotion quota and appointment of respondent No.1 on deputation, did not create any bar to such consideration of the appellant for promotion and as such did not provide any cause of action to him. For this reason also the present appeal is incompetent.

6. As regards the expunction of the adverse remarks in the; ACRs the position is also quite clear that an appeal to this Tribunal can be made against the expunction of the adverse remarks only after such remarks are conveyed to .the appellant and he exhausts the available departmental remedy. Therefore, the prayer made by the appellant in this respect is also not allowable.

7. For the foregoing reasons an unavoidable conclusion would be that the present appeal is incompetent and is accordingly dismissed There shall, however, be no order as to costs.

8. Parties to be informed accordingly.

K.B.A./382/Sr.F.

Appeal dismissed.

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