' SYED JAMSHED ALI, J.--- The Government of Balochistan and another seek leave to appeal against the judgment dated 25-3-2004 of the learned Balochistan Service Tribunal whereby appeal of the respondent was partly allowed and he was held entitled to pro forma promotion as Director, Primary Education (BS-20) with effect from 17-11-1992. The brief facts of the case are noted hereunder.
2. The respondent started his career as J.V. Teacher on 16-9-1949, in the Education Department of Government of Balochistan, earned due promotions and was awarded BS-19 on 30-5-1991. Vide order dated 6-3-1993, he was appointed as Acting Director, Primary Education, a post in BS-20, and was allowed to draw the pay of the said post with effect from 1-7-1992. On reaching the age of superannuation, he retired on 13-3-1993. However, vide order dated 4-8-1993, he was allowed move-over to BS-20 with effect from 1-12-1992.
3. After his retirement, case for his regular promotion as Director, Primary Education, was placed before the Provincial Selection Board. Besides, the respondent one Ijaz Ahmad Malik was also a contender for the said post. The said Board in its meeting held on 21-3-1993, approved Ijaz Ahmad Malik for promotion to the said post. A formal notification was issued to this effect on 24-10-1993.
4. On 17-10-1998, the respondent filed a representation for pro forma promotion to BS-19 with effect from 1-7-1989, in BS-20 with effect from 1-7-1991 and as Director, Primary Education with effect from 1-7-1992. The appeal was contested by the petitioners but was partly allowed by the learned Balochistan Service Tribunal vide judgment dated 25-3-2004 inasmuch as that the claim of the respondent for pro forma promotion to BS-19 was dismissed but it was allowed for pro forma promotion to BS-20 with effect from 17-11-1992, the date when the case was referred to the Provincial Selection Board.
5. The learned Advocate-General, representing the petitioners, submits that the appeal of the respondent before the learned Service Tribunal was not competent because the departmental representation was hopelessly barred by time and even on merits the learned Tribunal only undertook an unwarranted academic exercise for the reasons that the respondent was allowed the pay and all other benefits of grade 20 on account of move over to BS-20, with effect from 1-7-1992 and even if he had to be promoted with effect from 17-11-1992 to grade 20 he would not be entitled to any further benefit such as the increment because of the bar contained in the policy circular of the Finance Department of the Government of Balochistan bearing No,FD(R-1)III-40/99/451-551, dated 21-3-2000. He also vehemently contended that the respondent received all the retirement benefits of Grade-20 and, therefore, in the circumstances, the learned Service Tribunal should not have interfered to create a precedent which is likely to cause serious administrative problems for the Provincial Government.
6. On the other hand, the learned counsel for the respondent, has defended the impugned judgment for the reasons noted therein. According to him, on promotion, the respondent would have been entitled to the fixation of pay in Grade-20 along with an increment.
7. We have considered the submissions made by the learned counsel for the parties. It is not denied that the respondent has received all the terminal benefits on the basis of his retirement in Grade-20. Another significant feature to be noted is that vide notification dated 24-10-1993, Mr. Ijaz Ahmad Malik was promoted as Director, Primary Education who was, however, not impleaded to this appeal. We have seen the circular dated 21-3-2000 in which it has clearly been stated that the annual increment in the basic scale of pay will accrue on first day of December following the completion of at least six months of such service at the relevant stage in that scale under the ordinary rules. It is further stated therein that a retiring civil servant shall be entitled to the usual increment for the purpose of calculation of his pension only on completion of six months in the year of his retirement irrespective of due date of first December, following the completion of six months.
Thus, it is clear that on his promotion to BS-20 on 17-11-1992, the respondent would not have been entitled to an increment.
8. The learned counsel for the respondent has not been able to satisfy us as to what tangible benefits would accrue to the respondent in case of his regular promotion to BS-20 with effect from 17-11-1992. Another important feature of the case is that the learned Service Tribunal held that the respondent was entitled to pro forma promotion. We may like to observe here that the question of pro forma promotion i,e, antedating promotion, would only arise in case the respondent was already promoted to Grade-20. This was not the case because vide order dated 6-3-1993, he was appointed as Acting Director, Primary Education, and vide order dated 4-8-1983, he was granted move over in BS-20. None of the two eventualities amounted to regular promotion to Grade-20.
9. Another crucial aspect is that the respondent retired on reaching the age of superannuation on 13-3-1993, but on 17-10-1998, filed a representation before the departmental authority which was rejected (on merits) on 26-6-1999 and the order was communicated to him on 30-3-2000 while the appeal before the learned Service Tribunal was filed on 19-4-2000. Thus, while the grievance had arisen as a result of promotion of Ijaz Ahmad Malik to BS-20 on 14-10-1993, it was agitated before the departmental authority after more than 5-1/2 years. Thus, the departmental remedy, availed by the respondent was hopelessly barred by time. The petitioners had pressed the question of limitation before the learned Service Tribunal. The plea of the department to the extent of grant of BS-19 was accepted while it was rejected in respect of respondent's promotion to BS-20 on the ground that the departmental authority had dismissed the appeal of the respondent on merits and it was, thus, accused by the learned Tribunal that if the departmental authority did not dismiss the appeal as barred by time, the learned Tribunal could not examine the question of delay before the departmental authority.
10. There are a number of decisions of this Court in which the issue was examined and decided. The first to be noted is Muhammad Younis and 3 others v. The Chairman, WAPDA, Lahore and another 1989 SCM R 174. In this case, the departmental appeal was dismissed on merits. The learned Service Tribunal, however, dismissed the appeal of the civil servant on the ground that appeal before the departmental authority as barred by time and the order of the learned Tribunal was maintained by this Court with the observation that the order of the learned Service Tribunal did not suffer from any infirmity. In the Chairman, P.I.A.C. And others v. Nasim Malik PLD 1990 SC 951 the PIAC official had resigned which was accepted on 15-8-1983 and on his request the resignation was converted into termination of his service vide order dated 28-3-1984. He received monitory benefits as a result of his termination but filed departmental appeal on 12-3-1986 after the expiry of two years although a period of thirty days has been prescribed for this purpose. The representation was rejected by the departmental authority. The learned Service Tribunal, however, allowed the appeal on the assumption that delay was condoned by the appellate authority as the departmental representation was rejected on merits. This Court interfered and held that appeal before the department authority being barred by time, it was incompetent on that account. In Anwarul Haq V.
Federation of Pakistan through Secretary, Establishment Division, Islamabad and 13 others 1995 SCM R 1505, the learned Service Tribunal had dismissed the appeal as barred by time yet the rule laid down in the case of Chairman, PIAC was affirmed. In State Bank of Pakistan v. Khyber Zaman and others 2004 SCM R 1426, appeals filed by the employees of the State Bank of Pakistan were allowed by the learned Federal Service Tribunal. This Court interfered in the matter on the ground that since the appeals before the departmental authority were barred by time, the appeals before the learned Service Tribunal were not competent. In Inayatullah and others v. Director-General and others 2006 SCM R 535, the departmental authority had dismissed the appeal as barred by time yet the rule laid down was that a service appeal would be incompetent in case appeal before the departmental authority was barred by time. In Zafar Mahmood, Ex-Line Superintendent, WAPDA v.
WAPDA through Superintending Engineer (Electricity) and another 1991 SCM R 640, the employee was dismissed from service on 24-3-1982, he filed departmental appeal on 20-12-1984 and without waiting for its decision filed appeal before the learned Service Tribunal. The appeal was dismissed as barred by time which was maintained by this Court. In Anwar Muhammad v. General Manager, Pakistan Railways, Lahore and another 1995 SCM R 950, the departmental authority had decided a time-barred appeal on merits. The learned Service Tribunal dismissed the appeal as barred by time. It was observed that while deciding the appeal on merits the General Manager impliedly condoned the delay. In Israr Ahmad Khan v. Government of N.-W.F.P. And others 1990 SCM R 1356, it was held that the learned Tribunal could go into the question of limitation.
11. Examination of various judgments of this Court as noted above clearly shows that unless the competent authority condones the delay with conscious application of mind, the question of limitation will remain open for consideration of learned Service Tribunal. As held in Ahsan Ali and others v. District Judge and others PLD 1969 SC 167, there is no waiver of the question of limitation, particularly if a question of limitation in filing the appeal or representation before the departmental authority is raised before the learned Service Tribunal, it is bound to examine it and record its decision. The concept of implied condonation of delay does not fit in the scheme of law of limitation because an application has to he made for seeking condonation, showing sufficient cause to the satisfaction of the forum concerned who may either grant the prayer or decline it. It may also be remembered that discretion has to be exercised in a just and legal manner and it cannot be exercised arbitrarily or fancifully. The vice of accepting the implied condonation of delay is that in the absence of the grounds and reasons for condonation of delay, it is not possible for the Court of appeal to examine the question as to whether the delay was rightly condoned. Thus, in this case, the learned Tribunal in assuming that the delay stood condoned impliedly was, clearly in error.
12. For what has been stated above, we convert this petition into appeal which is allowed and the impugned judgment of the learned Balochistan Service Tribunal is set aside.