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Petitioner: MUHAMMAD SHARIF VS Respondent: AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIRHonorable Justice RAJA BASHIR AHMAD KHANSardar Rafique Mahmood,Sher Zaman & Tabassum Aftab AM
1994 P L C (C
1994 P L C (C.S.) 1127
[Service Tribunal Azad J&K]
Present : Raja Bashir Ahmad Khan, Chairman and, Abdul Hamid Member
MUHAMMAD SHARIF and 8 others
Versus
AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through its Chief Secretary, Azad Government of the State and 9 others
Service Appeal No. 602 of 1992, decided on 25th January, 1994.
Civil service‑‑‑
‑‑‑‑Appeal‑‑‑Maintainability‑‑‑Employees` aggrieved by promotion of, co -employees who were junior to employees filed representation before competent Authority within prescribed time which was dismissed‑‑‑After dismissal of representation, employees filed appeal before Chief Secretary and after waiting for a period of ninety days they filed appeal before Service Tribunal‑‑‑Employees had only one option either to file appeal before Home Secretary or representation before competent Authority and in either of cases employees were entitled to avail only one remedy‑‑After dismissal of representation, employees should have filed appeal before Service Tribunal within one month of communication of order passed in representation, but same was filed after about four months from communication of order passed in representation‑‑‑Appeal before Service Tribunal being hopelessly time‑barred was liable to be dismissed in circumstances.
Sardar Rafique Mahmood for Appellants.
Sher Zaman for Respondents Government.
Tabassum Aftab AM for Respondents Nos. 4 to 6
JUDGMENT
RAJA BASHIR AHMAD KHAN (CHAIRMAN).‑‑‑This appeal is directed against the decision of Inspector‑General of Police dated 2‑12‑1991 whereby the representation of appellants was dismissed against the order book No.197 dated 25‑8‑1991.
2. The brief facts of the case are that the appellants and pro forma respondents joined the Department of Police as constables. Appellants and pro forma respondents were promoted as Assistant Sub‑Inspectors through order book No. 6 dated 1‑1‑1991. Respondents Nos. 4 to 6 after completion of their duties in Pakistan Army in the rank of Subedar were inducted in Police Force Azad Jammu and Kashmir as Assistant Sub‑Inspectors vide order book No. 24 dated 9‑2‑1991 and order book No. 36 dated 26‑2‑1991. Respondents Nos. 4 to 6 were promoted as Sub‑Inspectors vide order book No. 197 dated 25‑8‑1991. Respondents were junior to appellants and pro forma respondents. Appellants etc. filed representation against the promotion of respondents before the Inspector‑General of Police who constituted a committee for scrutiny of the matter. The committee after hearing the parties came to the conclusion that in accordance with the, policy of the Government the respondents were to be appointed as Sub‑Inspectors but on account of non availability of posts they were appointed as Assistant Sub‑Inspectors and later on promoted as Sub‑Inspectors.
3. Written objections have been filed on behalf of the respondents. They have denied the contents of memorandum of the appeal and have alleged that in accordance with the policy of the Government retired Army Officer of the rank of Subedar were to be appointed as Sub‑Inspectors and their promotion as Sub‑Inspectors was made in view of that policy.
4. We have heard the learned counsel for the parties and have gone through the record.
5. Respondents have raised a preliminary objections that the impugned order was passed on 25‑8‑1991 and 2‑12‑1991. The present appeal has been filed on 31‑3‑1992 which is hopelessly time‑barred and was liable to be dismissed.
6. The learned counsel for the respondents has argued that the terms and conditions of the appellants were affected by the promotion of respondents and they should have filed appeal against the order of Inspector‑General of Police to the next above authority which in this case is Secretary Home (Chief Secretary). Instead appellants chose to prefer a representation to Inspector General of Police who was not competent Authority to whom representation could be made.
7. Against this argument the learned counsel for the appellants has argued that the impugned order was made prior to the enforcement of Appeal Rules, 1991 and the matter was covered under Appeal Rules of 1982 which provides that a representation can be filed to the Authority next above Authority or the officer which passed the order Sub‑rule (2) of Rule 8 of Appeal Rules, 1982 which is reproduced below supports the argument of the counsel:
"(2) Where no provision for appeal for review exists in these rules in respect of any order, a civil servant aggrieved by any such order may except where such order is made by the Government, within sixty days of the communication to him of such order, make a representation against it to the authority next above the authority or the officer which passed the order."
It is common case between the parties that there is no right of appeal against any appointment made by the Inspector‑General of Police. The appellants had the remedy of making representation to Inspector‑General of Police and they have availed the same.
8. In our view, the case in hand is covered by Appeal Rules of 1982 but the question arises whether the present appeal is competent before this Tribunal. The order of promotion of respondents was made on 9‑2‑1991. Representation could be made to Inspector‑General of Police within sixty days of the communication of the order. The appellants did make representation to the Inspector‑General of Police within time on 22‑8‑1991 and after the rejection of their representation they filed appeal before the Chief Secretary and after waiting for a period of ninety days they have filed the appeal before Tribunal.
9. The matter may fall within the ambit of Appeal Rules, 1991 or the Appeal Rules of 1982. The appellants had only one option to file either an appeal before the Home Secretary or representation before the Inspector General of Police. In either of the cases the appellants were entitled to avail only one remedy. After making representation to the Inspector‑General of Police and getting an unfavourable order from him they should have filed appeal before the Service Tribunal within one month of the communication of the order of Inspector‑General of Police. The representation of the appellants was rejected on 19‑11‑1991 and the order was communicated to appellants on 2‑12‑1991. The appellants within thirty days of the date of the communication of the impugned order could file this appeal. Appellants, however, filed this appeal on 31‑3‑1992 which is hopelessly time‑barred.
10. In view of the above discussion we declare that this Appeal is hopelessly time‑barred and is liable to be dismissed. We, therefore, dismiss this appeal with no order as to costs.
H.B.T.240/Sr.A. Appeal dismissed.