' SARDAR ABDUL JABBAR KHAN (CHAIRMAN).-Hashmat Ali Nasim, Agricultural Chemist (Biochemistry)
Ayub Agricultural Research Institute, Faisalabad, has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974 in which he has impleaded Mukhtar Ahmad, Deputy Director Research and Mr. Tahir Saleem, Deputy Chief, National Fertilizer Development Centre, Planning and Development Division, Government of Pakistan, Government of Punjab Secretary (Services) and Secretary to the Goveonment of' the Punjab, Agriculture Department as respondents.
2. Brief facts of the case are that the appellant was appointed in the Agriculture Department with effect from 14th July, 1944 and inducted Lazo Class II with effect from 13th January, 1962.
Respondents Nos. 4 and 5 were appointed on temporary basis as Fertilizer Conducting Officers alongwith for other persons in the Scheme "Rapid Soil Fertility Survey and Popularization of use of Fertilizers" by the Director of Agriculture, West Pakistan, Lahore vide order, dated 25th March, 1958 in WPAS Class ' This scheme was sponsored by the Central Government but was being controlled by the Provincial Government. However, the period of service was extended from time to time and continued for 10e years. The said scheme was transferred to the Provincial Government with effect from 1st June, 1961 vide letter No, F. 1-8/60-Fart dated 11th February, 1961. Although the said posts were advertised by the West Pakistan Public Service Commission in the year 1967 yet the Government in their own wisdom earmarked two posts for departmental promotion and regularised these temporary appointments with retrospective effect from 29th March, 1958 and 5th April, 1958 the dates on which the respondents Nos. 4 and 5 had joined the said service on temporary basis. The appellant made a representation and brought this fact to the notice of the Government and ultimately the case of the respondents was processed and submitted to the Public Service Commission. The Public Service Commission altered the date of regular appointment from 1958 to 1st June, 1961. The appellant filed representation against the case of relaxation of the Respondents by the Government but the same was rejected. Hence this appeal.
3. We have heard the learned counsel at length as well as the learned District Attorney assisted by the representative of the Department and the learned counsel for Respondent No, 4 and have perused the record of the case carefully with their assistance. The learned counsel for the appellant has assailed the final order of the Government on the following grounds :-
(i) That the Respondents were not eligible for promotion in Class II Research Posts as they lacked initial experience ;
(ii) that it was incumbent upon the respondents to enter the service at the time when such posts were advertised by the Public Service Commission whereas they have been regularised through departmental intrigues ;
(iii) that as the Respondents lacked five years' research experience hence their appointments and regularization were both unlawful, therefore null and void;
(iv) that the Government by giving retrospective effect to their regularization has acted illegally and to the detriment of the appellant who would be senior to the respondents as the appellant was whereas the respondents were already working in Class TI for the last for years when the respondents were inducted into this grade.
(v) that the Respondents Nos. 4 and 5 are shown as (direct recruits against the appellant in Class II posts while the appellant was promoted to substantive Class II post vide Notification No, SO (AE-I)
5-22/72 dated 24th March,1973. The learned counsel for the appellant has vehemently argued that the order dated 31st January, 1968 and the subsequent promotion thereto of the respondents vide order dated 31st August, 1980 be set aside and the appellant be declared senior to respondents 4 and 5 in Class II and Class I senior. He has also made claim to the costs of his appeal.
4. On the other hand it has been contended on behalf of the respondent Department by the learned District Attorney and the counsel for Respondent No, 4 that the appeal is not maintainable under proviso (b) section 4 of the Punjab Service Tribunal Act, 1974, as it is beyond the jurisdiction of the Tribunal to grant promotion and to determine the same. Similarly, according to Proviso (c) of section 4 the appeal was liable to be dismissed. Fitness for promotion is purely within the purview of the Government and not the Tribunal, The D. A. Further submitted that fixation of seniority was disallowed as far back as 24th January, 1969 and similarly representation to this effect was rejected on 10th December, 1973, Still another representation was rejected on 18th/19th April, 1974 vide letter marked R/3 whereby the appellant was advised to seek his remedy in a Court of Law/Administrative Tribunal, Further representation of the appellant was rejected on 30th March, 1977. As the appellant did not seek his remedy from any forum of competent jurisdiction till 3rd April, 1980 therefore his appeal was hopelessly time barred. Similarly the stand of the appellant that the appointment of the respondents were Illegal has been vehemently resisted as this Tribunal was not vested with any powers to go into the vires of appointments as this was beyond its scope.
5. With regard to the merits of the case it has been submitted that the services of the respondents were transferred to the Provincial Government from 1st June, 1961 when the above appellant was already in service of tit., Provencal Government. It has also been vigorously denied that the appointment of the appellant was on ad hoc basis. With regard to the issue of regularization of the respondents service from retrospective effect, it can be submitted that the same is within the purview of the Government under section 22 of the Punjab Civil Servants Act, 1974 and no exception can be taken to it. While concluding the case the learned counsel for the respondents submitted that the respondents were serving under different cadre than that of the appellant and therefore no combined seniority list could be maintained vis-a-vis the appellant. Reliance has been placed in case No, 25/37 of 1971 Muhammad Ozal Khan etc. v. Secretary Agriculture etc., decided by the Punjab Administrative Tribunal ou 4th August, 1971.
6. We have attended carefully to the arguments so advanced by the parties and find that the case of the appellant is liable to be dismissed on merits as well as on the legal plane. With regard to the merits it would be sufficient to say that the respondents were first of all regularised by the Government from 1958 on the advice of the West Pakistan Public Service Commission and later on the same was altered on 1st June, 1961 the date when the services of the respondents were transferred to the Provincial Government on the advice of the Law Department as well as with the consultation of Public Service Commission. In view of the above established facts on the record we cannot strike down this regularization of the respondent as either irregular or illegal. We have held in Muhammad Ayub Qureshi case (Appeal No, (4?) ) that the Government had unfettered powers to grant retrospective date to regularise a civil servant so working against a post. Similarly we have no hesitation to repel the claim of the appellant that the Public Service Commission was referred, in this matter by the Government. This would be preposterat in view or the documents referred to above on the record, The Government would be within its competence to change its decision when certain factors are brought to its notice and we cannot fetter these powers which are so vested in it. We also find from the record that no combined seniority list was ever maintained and is not forthcoming with the appeal, therefore the argument of the learned counsel for the respondent is convincing that the appellant and the respondents belonging to separate cadres their seniorities had to be maintained separately. With regard to the legal objection that the prayer and the appeal is hit by section 4, sub-clause (b) we accept the same as valid. The appellant wants us to grant promotion or to consider him fit for that purpose which 'we are afraid we cannot do, as it would be for the Department to decide this factor whether a person is fit for promotion or not.
7. With regard to limitation we find that the appellant was informed in the year 1973 that his representation was considered and rejected. Similarly on his persistent to keep pouring in representations, it was made clear to him vide order d fled 18th April, 1974 in the following manner :- "Since the applicant's appeal had already been rejected on two occasions by the Government and the services of his opponents were regularised by the Public Service Commission/Governor, it does not appear reasonable to open this case again and again particularly when the facts go against him. However, if the applicant feels aggrieved of the Department's decision, he can seek remedy in a Court of Law (Administrative Tribunal). The Officer may please be informed accordingly."
' There is another letter of the Government as R/4 on the record of this case dated 30th March, 1977 that once again the request was turned down and he was told that the decision already conveyed to him in 1972 and 1974 is upheld. We also hold that the appeal is liable to fail as being hopelessly time-barred.
' In the light of the above discussions, we dismiss the appeal both on merits as well as on the legal plane. However, there will be no orders as to costs.