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Petitioner: MUHAMMAD SAGHEER AWAN VS Respondent: SECRETARY, EDUCATION And 4 Others
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Basharat Ahmed Sheikh Title: MUHAMMAD SAGHEER AWAN vs SECRETARY, EDUCATION And 4 Others Case No.:Civil Petition for Leave to Appeal No. 11 of 1997 Service Appeal No. 106 of
1996 Date of Judgment:1997-02-17 Reported As: 1997 PLC (C.S.) 1228 Result: Petition dismissed Judgment ORDER The petitioner is a teacher in Education Department. He was transferred from one school to the other which action was considered by the petitioner to be violative of the relevant rules. .He filed an appeal before the Service Tribunal which has been dismissed on the short ground that the petitioner did not avail the departmental remedy and was not, therefore, allowed by law to approach the Service Tribunal. Arguing the case for grant of leave Mr. Ashfaque Hussain Kayani, the learned counsel for the petitioner, contended that no appeal lies against a transfer order. He took me through section 4 of the Azad Jammu and Kashmir Civil Servants (Appeal) Rules, 1991. However, the learned counsel failed to take note of another provision which supports the view taken by the Service Tribunal. The provision is contained in subsection (2) of section 21 of the Azad Jammu and Kashmir Civil Servants Act, which runs as follows:- "21. (1) .. .... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. -------------------------------------------------- ----------------------------------------------------------------------------------------- -------------------- (2) Where no provision for appeal or review exists in the 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 to the authority next above the authority which made the order; Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade."
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The provision extracted above lays down that if no provision fort appeal or review exists in the rules, a civil servant may make a representation against any order: to the authority next above authority which made that order. Thus, it is clear that the petitioner could have filed a petition before the next higher authority. Without availing the departmental remedy appeal of the appellant before the Service Tribunal was not maintainable. The petition has, therefore, no force and I order its dismissal.