JUSTICE (R) MUHAMMAD JEHANGIR ARSHAD (CHAIRMAN).--- Since common questions of law and facts are involved in following appeals, hence the same are being disposed of through this single order:---
(i) Muhammad Asif Chatha v. Chief Secretary and others (Service Appeal No,2933 of 2005);
(ii) Farooq Hassan v. Chief Secretary and others (Service Appeal No,2934 of 2005);
(iii) Muhammad Musa v: Chief Secretary and others (Service Appeal No,2935 of 2005);
(iv) Muhammad Shafique v. Chief Secretary and others (Service Appeal No,2936 of 2005);
(v) Imtiaz Ali v. Chief Secretary and others (Service Appeal No,2939 of 2005);
(vi) Muhammad Saeed Sial v. Chief Secretary and others (Service Appeal No,2940 of 2005);
(vii) Intisar Ali v. Chief Secretary and others (Service Appeal No,2941 of 2005);
(viii) Zahid Irshad v. Chief Secretary and others (Service Appeal No 2942 of 2005);
(ix) Zaheer ud Din Babar v. Chief Secretary and others (Service Appeal No,2943 of 2005);
(x) Muhammad Shabbir Hussain Kamboh v. Secretary, Communication and Works Department, Lahore and others (Service Appeal No,2951 of 2005);
(xi) Fateh Muhammad v. Secretary to Government of Punjab, C&W Department, Lahore and, others (Service Appeal No,441 of 2006);
(xii) Tariq Mahmud Cheema v. Secretary to Government of Punjab, C&W Department, Lahore and others (Service Appeal No,500 of 2006);
(xii) Muhammad Faryad v. Secretary to Government of Punjab, C&W Department, Lahore and others (Service Appeal No,501 of 2006);
(xiv) Muhammad Tariq, Saeed v. Secretary to Government of Punjab, C&W Department, Lahore and others (Service Appeal No, 502 of 2006);
(xv) Fawad Munir Khan v. Secretary to Government of Punjab, C& W Department, Lahore and others (Service Appeal No,503 of 2006);
(xvi) Rana Iqbal Ashraf v. Secretary to Government of Punjab, C&W Department, Lahore and others (Service Appeal No,504 of 2006);
(xvii) Muhammad Sarwar Sabir v. Secretary to Government of Punjab, C&W Department, Lahore and others (Service Appeal No,505 of 2005) and
(xvii) Syed Adeel Haider v. Secretary to Government of Punjab, C&W Department, Lahore and others (Service Appeal No,591 of 2006).
2. All these, appeals have been filed for seeking following relief:-- "In view of the above, it is most respectfully prayed that the impugned order dated 27-7-2005 and the orders 12-6-2007 and 1-1-2011/8-1-2011 may kindly be set aside qua the appellant and the appellant's promotion to the post of S.D.O. in 1995 may kindly be declared as regular promotion against 15% promotion quota for Sub-Engineers holding B.Sc. (Engineering) degree for all purposes.
3. For the proper understanding of the matter in dispute the facts giving rise to all these appeals briefly stated are as under.
4. All the appellants who were Graduate Engineers possessing B.Sc. Engineering Degree were promoted between 1995 to 1998 to the post of Assistant Engineer/SDO in BS-17 on officiating basis whereas private respondents were promoted in the year 2001 to the post of Assistant Engineer/SDO (BS-17) on regular basis. Writ Petitions Nos.15893 of 1999, 1823 of 2001, 2014 of 2001, 7668 of 2001 and 17792 of 2001 were filed challenging the promotion of private respondents on regular basis. All the above noted writ petitions were finally decided by the Hon'ble Lahore High Court, Lahore on 24-1- 2002 in the following terms:--- "For these reasons, intervention of this court at this juncture is declined. It is directed that the Competent Departmental A Authority will decide the controversy in accordance with law after hearing both the affected parties and after investigation o necessary facts."
Intra-Court Appeal No,98 of 2002 was filed to assail the above noted judgment of learned Single Bench of Hon'ble Lahore High Court, Lahore but the same was also rejected on 7-2-2010. The above noted judgment passed in I.C.A. was further challenged before the apex court through C.P. No,519-L of 2002 which was also disposed of by observing "No need to pass any such order. The case has been remanded to the departmental authority and the departmental authority shall proceed in accordance with law."
3. In the light, of above noted determination upto the apex court the matter was taken up by the competent authority/Secretary to Government of Punjab, Communication and Works Department, Lahore who vide order dated 18-12-2002 decided the matter holding in the following terms:--- "Keeping in view the above facts and availability of regular posts of AE/SDO in 1995-98 at the time of promotions on officiating basis and in view of advice of Regulation Wing of S&GAD, the competent authority has decided that the officiating promotion of the appellants are on regular basis for all purposes. So the officiating promotions of these SDOs made during 1995-98 are hereby declared as Regular Promotion with effect from the date of their officiating promotions.
It is further ordered that the regular promotion of private respondents promoted in the year 2001 is hereby converted to promotion on officiating basis. However, they shall continue to work as SDO in view of shortage of officers till regular incumbents become available or they are promoted as such on regular basis whichever is earlier."
6. The above noted order of competent authority was assailed before this Tribunal through consolidated Appeals Nos.845, 939 to 944, 1009, 1060, 1061, 1063 of 2003 and this Tribunal disposed of all the above noted appeals on 10-12-2003 in the following terms:-- "<i>Even if the representation is joint, which is not so in the case of Arshad Mehmood, in Appeal No,845 of 2003, each and every representationist has to be summoned and if each one of them desires to be heard individually chance is to be allowed but if they choose one person to be their spokesman the authority hearing them has to reduce in writing consent of others to be signed by every one of them. A vague reference in the impugned order that the raps (should be rep.) is not sufficient compliance with the norms and rules of natural justice. Except Rafaqat Ali Chatha appellant, other appellants in different appeals were not heard which has rendered the order'dated 19-12-2002 passed by the Lahore High Court, Lahore wherein the competent departmental authority was specifically directed to act in accordance with law after hearing both the affected parties. Resultantly the order dated 18-12-2002 passed by Secretary, Government of the Punjab, Works and Communication Department, Punjab is set aside. A fresh hearing shall be taken up for determination of the dispute. Each and every appellant and private respondents would be summoned and hearing will be extended to all. View points and contentions raised would be recorded and thereafter giving reasons the matter would be disposed of through a speaking order within 60 days from the date, respondent No,2 receives this judgment. The appeals are accepted in the aforesaid terms.</i>
7. After the above noted judgment of this Tribunal when, the matter was remitted to the competent authority, the, competent authority vide order dated 27-7-2005 passed following order:--- "On the basis of the above mentioned facts, it is hereby ordered that there is no basis for considering the officiating promotion o Sub-Engineers holding B. Sc. (Engineering) degree as Assistant Engineers/Sub Divisional Officers, between 20-4-1995 to 5-11-1998, as regular promotion because promotion can only be granted with immediate effect and cannot be granted with effect from an earlier date.
The Sub-Engineers holding B.Tech (Hon) degrees were accorded the right to be considered for promotion through amendment in the Punjab Communication and Works Department (Engineering Posts Qualifications and Conditions for Recruitment) Rules, 1985 on 16-12-2000. Such Sub-Engineers cannot claim any right towards promotion as Assistant Engineers/Sub Divisional Officers prior to 16-12-2000. Moreover, in view of subsection (4) of section 8 of Punjab Civil Servants Act, 1974, since promotion cannot be granted from an earlier date, there is no basis for the claim of any such Sub-Engineer that he should be granted such promotion from an earlier date.
7. The appellants feeling aggrieved against the above noted order of competent authority filed departmental appeals but as the same were not being decided within statutory period, therefore, after expiry of statutory period of 90 days, present appeals were filed.
8. It would not be out of place to mention here a very important point rather an act of civil servant amounting to mockery of law that during the pendency of these appeals one Muhammad Siddique, Section Officer in the office of Secretary C&W Department, Lahore instead of putting departmental appeals before the appellate authority/Chief Secretary opted to decide these appeals of his own on 28-12-2005. The above noted aspect of the matter came to the notice of this Tribunal on 18-2-2009 when original record was produced before the Tribunal by Mr. Humayun Akhtar Sahi, Deputy Director(Law) on behalf of C&W Department. In this view of the matter, following order was passed by this Tribunal on 18-2-2009:--- As directed on the last date of hearing i,e, 23-1-2009 Mr. Humayun Akhtar Sahi, Deputy Director
(Law) has produced the original record which has been perused. The reasoning for summoning the original record was that from the perusal of the copy of the order dated 28-12-2005 appended with the appeal it prima facie appeared to us that the departmental appeal was never put up before the competent departmental authority and the said order was passed by Muhammad Siddique, Section Officer (E-1II) on his own. Today, when the original record was produced and perused, our apprehension found correct and it is evident that on the departmental appeal filed by the present appellant the said Section Officer in para 17 of the noting part without either putting the same before the competent departmental authority or obtaining instructions oral or in writing by the said authority of his own proposed that the representation made by the Sub-Engineer may be rejected and the said noting was considered as an order dated 28-12-2005 now impugned in this appeal. Mr. Humayun Akhtar Sahi, Deputy Director (Law) on the basis of record admits that said appeal was never put up before the competent departmental authority. We are, therefore, satisfied that the appeal filed by the appellant against the order of the competent authority dated 27-7-2005 was never put up before the competent departmental authority, hence, to be deemed pending. Resultantly, we direct the departmental appellate authority (Chief Secretary Punjab) to decide the appeal of the appellant within 60 days from the receipt of this order after affording opportunity of hearing to all the parties concerned and the departmental appellate authority shall also decide the appeal in the light of order passed by this Tribunal in Appeals Nos.845, 939 to 944, 1009, 1060, 1061 and 1063 of 2003 on 10-12-2003.
We would also like to issue notice to Muhammad Siddique, Section Officer (E-III), directing him to appear in person on the next date of hearing and submit written explanation as to why he should not be burdened with heavy cost and also not be recommended for initiation of departmental proceedings against him for passing the order dated 28-12-2005 without any authority and also for wasting precious time of the Tribunal as well.. This order shall be communicated to him by Mr. Humayun Akhtar Sahi present in court.
On receipt of the final order by the Chief Secretary, Registrar of this Tribunal shall put up the same before the Chairman in chamber for appropriate orders about the next date of hearing."
10. Pursuant to the above noted order of this Tribunal the matter was finally decided by the Chief Secretary, Govt. of Punjab on 1-1-2010 whereby departmental appeals filed by the appellants were rejected. The learned Counsel for appellants on getting knowledge of the above noted order with the permission of court filed amended memo. of appeal by including challenge to the above noted order of the Chief Secretary/ appellate authority also.
11. Mr. Masud Ahmad Riaz, Advocate, learned counsel for the appellants (In Service Appeals Nos.441 of 2006, 500 to 505 of 2006 and 591 of 2006) addressed main and detailed arguments which are summarized below:--
(1) The promotion granted to the appellants from 1995 to 1998 was in fact regular promotion and insertion of condition "On officiating basis" was neither justified nor legal. The contention is that since the promotion of appellants had been made in the prescribed manner, therefore, the same could be deemed regular under section 2(2) of the Punjab Civil Servants Act, 1974. Learned Counsel in support of his contention placed reliance on the cases of PLD 1970 Quetta 115; 1993 SCMR 609, 1996 PLC (C.S.) 677 (SC), 1981 PLC (C.S.) 731, 1982 SCMR 408, 1983 PLC (C. S.) 247 and 2000 SCMR 1546. Learned Counsel further argued that as the condition of "officiating basis" was illegal, therefore, the same be set aside/deleted from the promotion order as held by the apex court in 1998 SCMR 215.
(ii) Since 1995 till 1998 the relevant qualification of private respondents for promotion was lacking and it was for the first time when relevant rules i,e, Punjab Communication and Works Department (Engineering Posts Qualification and Conditions for Recruitment) Rules, 1995 were amended on 16- 12-2000 and in the schedule annexed with the rules, the qualification of B. Tech (Hons) Degree was also included in the relevant column of qualification for promotion as SDO/Assistant Engineer, therefore, they could not be promoted as SDO/Assistant Engineer in the year 2001 because at that time they were neither holding minimum qualification nor fulfilled the requirement of registration as professional engineers with Pakistan Engineering Council. According to learned Counsel if a civil servant is lacking the requisite qualification for promotion neither he could be promoted before the fulfillment of said qualification nor his promotion even if granted without fulfilling the requisite condition would be justified by some subsequent event. To support his contention learned Counsel has placed reliance on 1985 SCMR 1158, 1990 SCMR 1623 in this respect.
(iii) Another argument of learned counsel is that as the promotion of appellants was against available vacancies, therefore, there was no justification for the competent authority to have promoted the appellants by adding the word "officiating basis" because a civil servant has a right of promotion from the date of occurrence of vacancy and also eligibility existing on the date of vacancy as held by the apex court in 1990 SCMR 1623. Learned Counsel further argued that at the relevant time the private respondents were senior to the appellants yet their promotion from 15-9- 2001 as SDO would neither confer any seniority on them. over the appellants who were promoted in the year 1995 nor the private respondents could be considered senior over the appellants as the appellants fulfil the requirements regarding qualification as well as experience etc. qua the respondents. Learned Counsel argument is that as the private respondents were not eligible in the year 1995 as against the appellants and acquired their eligibility after the above noted amendment in the relevant rules which was later in time qua the appellants, therefore, they could neither be considered nor promoted in the year 2001. Learned counsel in this respect has placed reliance on PLD 1990 SC 725.
(iv) Learned counsel in order to elaborate his contentions submits that it is established principle of law that eligibility should exist on the date of vacancy and further for deciding the question of promotion the competition must be between the eligible and eligible and not between the eligible and in-eligible. In this respect learned Counsel has placed reliance on 1985 SCMR 699. Learned Counsel finally argued that long temporary service was to be considered as regular due to flux of time. According to learned Counsel after long service a civil servant is to be considered imp7iedly regularized and vested right of being regularized accrues as held by the apex court in 2004 SCMR 630, 2005 SCMR 716 and 2003 PLC (C.S.) 1357(SC).
12. Hafiz Tariq Nasim, Advocate, counsel for the appellants (In Service Appeals Nos.2933 to 2942 of 2005) besides adopting the above noted arguments of Mr. Masud Ahmad Riaz, Advocate, furthef added that as in the light of judgment of Hon'ble Lahore High Court, Lahore dated 24-1-2002 noted above, the matter stood re-opened, therefore, this Tribunal should decide the case through open mind keeping in view the law laid down by the superior courts in the above noted judgments and the appellants could not be non- suited on the ground of either limitation or laches etc. Further argument of learned Counsel is that the competent authority passed a detailed order on 18-12- 2002 deleting condition of 'officiating basis' through a speaking order after due application of mind, therefore, the same provided valid and legal basis for declaring the promotion of appellants as on regular basis especially when the said order was passed in accordance with the judgment of Hon'ble Lahore High Court, Lahore dated 24-1-2002 as noted above. Learned Counsel also reiterated the above noted contention of Mr. Masud Ahmad Riaz, Advocate by laying specific stress on the point that insertion of word "officiating basis" in the order of promotion of the appellants dated 4-9-1995 was a superfluous and could not be considered as lawful condition in view of judgments especially of PLD 1970 Quetta 115 and other judgments noted above as relied upon by Mr. Masud Ahmad Riaz, Advocate, learned counsel for certain appellants.
13. On behalf of private respondents Mrs. Rizwana Anjum Mufti and Dr. A. Basit, Advocates argued the matter. Similarly Muhammad Farooq/private respondent No,23 also addressed the court to place his view point. According to Mrs. Rizwana Anjum Mufti, Advocate;
(i) The appellants not only accepted their promotion order dated 4-9-1995 containing the condition of officiating basis but also never challenged the same before any forum for near about 6 years, meaning thereby that they accepted the said condition and thus they were precluded by their act and conduct from taking the plea that the said condition was either illegal or not justified.
According to learned counsel it was for the first time in the year 2001 when the matter was agitated before the Hon'ble Lahore High Court through writ petition noted above and through judgments the Hon'ble High Court in clear terms rejected their plea holding "intervention by the High Court was declined". Learned Counsel contention is that through the said judgment though the Hon'ble High Court directed the competent authority to decide the matter in accordance with law after hearing both the affected parties and after investigation of necessary facts yet the High Court neither condoned the question of delay in agitating the matter nor over-ruled the provisions of section 21 of the Punjab Civil Servants Act, 1974 providing the period of limitation of 60 days for agitating the matter on the communication of order adversely passed against a civil servant. Learned Counsel in this respect submits that it is now established principle of law that if a departmental representation/ review/appeal etc. was barred by time and without disclosing any sufficient reason for delay or inability to move departmental authority within prescribed period, then no subsequent order or disposal of such incompetent representation/appeal or review could create fresh cause of action or automatically operate to condone the delay of limitation in availing the remedy under section 4 of Service Tribunals Act, 1974. Learned Counsel in this respect has placed reliance on the case of "Abdul Wahid v. Chairman, Central Board of Revenue, Islamabad and another (1998 SCMR 882"). Learned Counsel further submits that as held by the apex court in recent judgments i,e, "2011 SCMR 676, 698, "neither the question of limitation could be compromised nor question of limitation could be considered vague or condoned and the limitation had to be followed strictly"."
(ii) Learned Counsel further argued that there was no question of ineligibility or lack of qualification on the part of private respondents to be promoted because the matter stood finally decided by the competent authority in the light of policy letter issued by the Government of Pakistan through letter dated 26-10-1973 declaring that B.Tech (Hons) Degree be treated at par with B.Sc. (Engineering)
Degree. The above noted policy letter was implemented by the Government of Punjab through notification dated 1-2-1981 declaring B.Tech, (Hons) Degree in particular specialization equal to corresponding B.Sc. (Engineering) Degree of that University for job purposes in the field of Engineering. According to learned Counsel the Government of Punjab also amended the above noted rules on 20-8-1983 by providing 5% by promotion on the basis of seniority-cum-fitness from amongst Sub-Engineers who possessed qualification prescribed for initial recruitment. According to learned counsel after the above noted amendment in the relevant rules not only in-service employees were allowed admission in B.Tech (Hons) Degree course in the University of Engineering and Technology, Lahore but also on successful completion of said degree several civil servants were also given promotion on the score that as the <u>words 'or' and equivalent qualification were already part of the rules even before amendment</u>, therefore, the prescribed qualification means qualification prescribed by the competent authority i,e, Government of Pakistan in its policy lend. dated 26-10-1973 and followed by the Punjab Government through notification dated 1-2-1981, hence this was a sufficient requirement of conferring eligibility on the private respondents for claiming their promotion much before the amendment in the rules in the year 2000 as reproduced above.
(iii)Learned Counsel further argued that as the appellants were admittedly juniors to the private respondents and further were not eligible for such promotion on regular basis qua private respondents under the original rules, they were rightly ignored and their promotion was rightly treated as on officiating basis because no vacant post was available as supported by the minutes of DPC dated 24-7-1995 according to which only two posts were available.
(iv)Another important and basic argument of Mrs. Rizwana Anjum Mufti, Advocate, learned Counsel for private respondents Nos.20, to 22 and 24 to 28 is that in view, of expressed provisions of Rule 13 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 officiating promotion neither confers any right of promotion on regular basis nor any such promotee could claim the same as regular. Learned Counsel in this respect has placed reliance on the judgment of apex court in Tariq Aziz-ud-Din and others in re:- Human Rights case (2010 SCM R 1301) at (i) and also in the case of Dr. S.M. Inkisar Ali v. Government of Sindh and others (2011 SCM R 121). Besides the learned Counsel has also placed reliance on an unreported consolidated judgment of apex court in the case of Altaf Ahmad and others v. Secretary to Government of Punjab, Irrigation Department, Lahore and others (C.P. No,1583 of 1998) and several others and further unreported judgment of this Tribunal passed in Appeal No,4288 of 2010 titled Raja Zafar Mehmood v. Director General Agriculture (Field), Punjab, Lahore and others.
(v) Another argument of learned Counsel for aforesaid private respondents is that in non-selection post criteria for promotion is seniority-cum-fitness and no civil servant can ask for promotion as of right and refusal of promotion is a matter which is within the exclusive domain of the Government/Executive. In this respect learned Counsel has placed reliance on 2003 PLC (C. S.) 212, 1985 PLC (C.S.) 26, PLD 1991 SC 1118 and PLD 2003 SC 175.
(vi) The last argument of learned Counsel is that since 1995 to 2002, three,seniority lists were issued and in all these lists, appellants were shown as officiating SDOs but the appellants never challenged the said seniority lists and according to learned Counsel appellants were now estopped from challenging the same by claiming that the addition of word 'officiating' in their promotion order was either against law or not permissible by law. In this respect, learned Counsel has placed reliance on 2010 SCM R 450 and 1995 SCM R 1229.
14. Dr. A. Basit, Advocate, Counsel for private respondents Nos.3 to 19 besides adopting the above noted contentions of Mrs. Rizwana Anjum Mufti, Advocate also argued that provisions of section 2(2) of Punjab Civil Servants Act, 1974 being deeming clause could not be given effect in the presence of express provisions of rule 13 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. His contention was that as the officiating promotion was also through a prescribed manner, therefore, their appointment on officiating basis could not be considered as on regular basis. According to him the impugned orders of competent authority as well as appellate authority were just and valid and not to be interfered with.
15. It would not be out of place to mention here the submissions of Mr. Farooq Ahmad, private respondent No,23 who argued his case in person. His main thrust of contention is that private respondents much before the amendment in the relevant rules were qualified/eligiblt for promotion. In this respect he has 'placed reliance firstly on the original policy letter issued by Government of Pakistan on 26-10-1973 as well as the notification issued by Government of Punjab on 1-2-1981 adopting the policy of the Federal Government. The relevant portion of the rules prior to amendment laying down the provisions 'Qualification prescribed for initial recruitment' and also unreported Full Bench judgment of this Tribunal dated 16-11-1985 passed in Cases Nos.143/64, 145/65 and 333/169 of 1985. His further contention was that even University Grant Commission recognized the degree of B.Tech. Through notification dated 5-1-1982.
16. Learned Deputy District Attorney also adopted the contentions so raised by learned Counsel appearing on behalf of private respondents.
17. Arguments considered, record perused.
18. The decision of all these appeals revolve around the resolution/ determination of following two points:---
(i) Whether order dated 1-8-1995 promoting the appellants on .officiating basis was a valid order or the condition of their promotion on officiating basis was without legal justification and they be considered promoted on regular basis from the said date?
(ii) Whether the private respondents were validly promoted on regular basis on 15-9-2001 despite the fact that relevant rules of 1985 were amended w,e,f, 16-12-2000 declaring the eligibility for promotion to the post of SDO against 50% promotion quota of those possessing B. Tech (Hons)
Degree?
19. On first point the contention of learned Counsel for the appellants as noted above is very simple. According to them the concept of officiating promotion was not only against the provisions of section 8 of the Punjab Civil Servants Act, 1974 but also the law on the subject as declared by the superior courts in the following judgments:---
(i) PLD 1970 Quetta 115, (ii) 1993 SCMR 609, (iii) 1996 PLC (C.S.) 677 (SC), (iv) 1981 PLC (C.S.) 731 (v)
1982 SCM R 408,
(vi) 1983 PLC (C.S.) 247 and (vii) 2000 SCM R 1546.
20. Learned counsel further contention is that as the promotion of appellants vide order dated 1-8- 1995 was made in the prescribed manner, therefore, the same should be deemed to have been made on regular basis in terms of section 2(2) of the Punjab Civil Servants Act, 1974, so, in the opinion of learned counsel for the appellants the incorporation of the word 'on officiating basis' in the order dated 1-8-1995 was not only superfluous but could not be considered valid condition and the same be set aside in the light of above noted law. Learned counsel has also placed reliance in this respect on 2009 PLC (C.S.) 527 and 1998 SCM R 215.
21. On the other hand, learned Counsel for the private respondents argued that the promotion of appellants was in accordance with the provisions contained in rule 13 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, therefore, unless the same was regularized through proper channel, the appellants could not be deemed to be promoted on regular basis.
Learned counsel also argued that in terms of the above noted rule, officiating promotion neither confers any right of promotion on regular basis nor a civil servant can claim any promotion on regular basis because of his officiating promotion. To support their contention learned Counsel for the private respondents also placed reliance on the case of Tariq Aziz ud Din and others in re Human Rights case (2010 SCM R 1301) and also the case of Dr. S.M. Inkisar Ali v. Government of Sindh and others (2011 SCM R 121).
22. I have considered the above noted contention of learned Counsel for the parties and after going through the same as well as the law noted above, not inclined to agree with the contention of learned Counsel for the appellants that in fact their promotion through order dated 1-8-1995 was on regular basis and the condition of promotion on acting charge basis was either superfluous or without legal justification. The main thrust of argument of learned counsel for the appellants is on the judgment of Quetta High Court in the case of Jafar Ali Akhtar Yousafzai v. Islamic Republic of Pakistan and another (PLD 1970 Quetta 115). However, after examining the said judgment, this Tribunal feels that firstly the said judgment related to the period before the enforcement of either Punjab Civil Servants Act, 1974 or the Punjab Civil Servants (Appointment and Conditions of Service)
Rules, 1974 and secondly the facts of said case were distinguishable in as much as in the reported judgment the point involved was whether the competent authority had authority to treat the incumbent of a post as officiating. But after the enforcement of Punjab Civil Servants Act, 1974 as well as the rules noted above, the legal position is very much clear. The Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 were framed by the Government pursuant to the powers conferred under section 23 of the Punjab Civil Servants Act, 1974. In exercise of the said powers, the Punjab Government framed rules known as Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 and in terms of rule 13 the Government conferred power on the appointing authority to make appointment by promotion <against such post on officiating basis.
For the proper understanding rule 13 of the said rules is reproduced below:---
(i) "Where a post falls vacant as a result of deputation, posting outside cadre, leave, suspension or appointment on acting charge basis of the incumbent or is reserved under the rules to be filled by transfer, if none is available for transfer, the appointing authority may make appointment by promotion against such post on officiating basis.
(ii) 111
(iii) No person shall be promoted on officiating basis unless he possesses the qualifications and experience prescribed for the post and his promotion as such is approved by the Chairman o the appropriate Selection Authority.
(iv) An officiating promotion shall not confer any right of promotion on regular basis but shall be liable to be terminated as soon as a person becomes available for promotion on regular basis.
(v) Officiating promotion shall be made on the same terms and conditions as to pay as are prescribed for regular appointment by promotion</i>. "
23. The Hon'ble Quetta High Court in the reported judgment was in fact dilating upon the powers of competent authority in the light of relevant business rules which were ultimately found silent about the powers of competent authority to treat the appointment of civil servant on officiating or acting charge basis etc. and it was in this background the Hon'ble High Court came to the conclusion that the competent authority could not impose such condition or in case if such condition is so imposed the same cannot be allowed continued to treat the incumbent of a post as on officiating for an indefinite period. In this respect para-20 of the judgment is relevant which is reproduced below:--- "In such-like cases when continuous officiation is not specifically authorised by any law and the Government/competent authority continues to treat the incumbent of a post as officiating, in our view it is only to retain extra disciplinary powers or for other reasons including those of inefficiency and negligence, e.g., failure on the part of the relevant authorities to make the rules in time, that the prefix "officiating" is continued to be used with the appointment and in some cases for years together. In proper cases therefore, Courts are competent to decide whether for practical purposes and for legal consequences such appointments have permanent character and, when it is so found, to give legal effect to it."
24. Similarly Paras 26,& 27 are also very relevant which are reproduced below:--- "26. With regard to the technical question, whether the use of the words "officiating" and/or "until further orders" would, by itself, make the appointment temporary if the circumstances indicate otherwise, we cannot do any better than to rely again on the ruling of the Supreme Court in the case of Abdul Majid Sheikh already noticed above. In the judgment written by the learned Chief Justice, it was specifically noticed that though the appointment of Abdul Majid Sheikh was variously described as "on probation" and "thereafter terminable by giving 14 days' notice"; and "temporary and "until further orders" and that "he did not receive any substantive appointment, yet "consideration should be given to the fact that he had successfully undergone a period of probation and thereafter had gained promotion". These observations and the conclusions thereon reached by his Lordship (already extensively quoted in paragraph No,17 above) apply with full force to the present case.
27. When this aspect of the matter was high-lighted during the arguments, learned, counsel for the respondents once again fell back on the observations made in some rulings of the Supreme Court before and after the decision in the case of Abdul Majid Sheikh. They have already been noticed above. It appeared to us as if the learned counsel found some difficulty in understanding the true import of all these rulings. With respect, it is pointed out that the observations made in the case of Qazi Syed Haikmat Hussain which were repeated and explained in the subsequent rulings, proceeded on a very important assumption that the officiating character of the appointment, at all relevant times, was in accordance with law including the rules applicable to the service or post. In other words, the power exercisable by the Government and/or the competent authority vis-a-vis an- officiating appointee to terminate his service or to revert him to a lower post is concomitant and goes along with the very important pre-requisite that the condition of officiation was lawfully attached initially and was lawfully continued subsequently. As soon as it is to be found that the condition was. either unlawful or was continued in an unlawful manner, this would directly adversely affect the said power. Therefore, the lawful exercise of power is dependent upon the existence of a. condition which is lawful. The question as to whether or not there is some such existing condition is, according to the Supreme Court view, justifiable. Depending upon the circumstances of each case, it will have to be determined whether or not such like condition was validly attached and continued with the post or appointment. The decision on this question Government and/or the other competent authority. Thus whenever they will commit some mistake in this behalf and the matter is properly brought before the Courts, unless they are specifically barred by an existing enforceable law, they would decide upon the validity of the orders so passed."
Further judgment reported as 1993 SCMR 609 is also not relevant for the simple reason that the question involved in the said case was regarding eligibility of a civil servant on current charge basis for regular promotion; similarly the cases reported as 1996 PLC (C.S.) 677 (SC) and 2000 SCM R 1.546 which are on distinguishable facts.
25.As against the above noted judgments, the judgments of apex court in Tariq Aziz-ud-Din and others: in re Human Rights case (2010 SCM R 1301) and Dr. S.M. Inkisar Ali v. Government of Sindh and others (2011 SCM R 121) are not only relevant but also fully applicable to the facts and circumstances of the present case. The apex court in Tariq Aziz-ud-Din case at page 1338 in express words held "We are not impressed with these arguments for, legally speaking, appointment on acting charge basis does not confer any vested right for regular promotion, as is evident from Rule 8-B of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973". The above noted rule relates to employees of Federal Government whereas rule 13 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 being pari-materia containing similar language, hence the said judgment is fully applicable. Further the case of Dr. S.M. Inkisar Ali v. Government of Sindh and others (2011 SCM R 121) noted above is also to the same effect. Finally in an unreported consolidated judgment of apex court passed in C.P. No,1583-L of 1998 and several others, it was held:--- " Mr. Irshad Ullah Chattha next placed reliance on Section 2(2) of Punjab Civil Servants Act, 1974 and rule 7 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 to contend that he was not appointed on officiating basis but on regular basis against existing vacancies. The contention is misconceived. A bare perusal of promotion order No,S.E.II(E)1-19/86 dated 10th December 1988 issued by the Government of the Punjab, Irrigation and Power Department, shows that the appointment of Iftikhar Ullah Khan was on officiating basis. The question whether or not he was appointed against an existing vacancy is a question of fact, which cannot be gone into in these proceedings.
' In the circumstances of the case, the Government had the legal authority to terminate the officiating appointment of Iftikhar Ullah Khan at any time, for any reason, relatable to exigencies of service without issuing a show cause notice. It is not the case of Iftikhar Ullah Khan that his reversion to inferior post was by way of penalty. Additionally departmental order of reversion has not been alleged to be mala fide, therefore, no exception can be taken to the impugned order, viewed from whatever angle.
In the result, the above petitions are dismissed and leave to appeal is declined."
26. As a result of above discussion, this Tribunal feels that promotion of the appellant vide order dated 1-8-1995 on acting -charge basis was quite lawful and in line with the provisions contained in Rule 13 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 as reproduced above, hence the appellants cannot ask for declaration that their promotion be considered on regular basis.
27. Though in the light of above discussion, this Tribunal does not feel necessary to dilate upon the second point viz. regarding eligibility of the private respondents yet in order to resolve the controversy, it would be expedient to dilate upon the same. For the resolution of this second point, some reference to the legal background of the same appears to be necessary.
28.Briefly speaking the Government of Pakistan issued policy letter dated 26-10-1973 declaring that B. Tech (Hons) Degree to be treated at par with B.Sc, (Engineering) Degree. This decision was taken by the Federal Government in consultation with the Provincial Government which was directed to be implemented this decision urgently. Pursuant to the above noted decision, Government of Punjab issued Notification on 1-2-1981 declaring B.Tech (Hons) Degree in particular specialization equivalent to corresponding B.Sc. (Engineering). Degree at the University for job purposes. Along with the above notification, Government of Punjab also amended the rules of Engineering Department namely Communication and Works Department, Irrigation and Power Department and Housing Physical and Environmental Planning Department whereby the following provisions were made for promotion of Sub-Engineers to the higher posts:--- "5% by promotion on the basis of seniority-cum-fitness from amongst Sub-Engineers who possess <u>qualifications prescribed for initial recruitment. If no such person is available then by initial recruitment."
As a result thereof several persons were either allowed to take up B.Tech (Hons) Degree Course in University of Engineering and Technology or were also promoted. It appears that despite the above noted notification of Government of Punjab as well as the amendment in the rules, certain employees of Physical and Environmental Planning Department, Lahore were not allowed promotion on the ground that B.Tech (Hons) Degree was not equivalent to the B.Sc. (Engineering)
Degree. Simultaneously Pakistan Engineering Council also .refused to recognize B.Tech (Hons)
Degree as equivalent to B.Sc.(Engineering) Degree, therefore, the matter ultimately went to the apex court through C.P. No,216 of 1991 but the same was dismissed on 5-12-1992. However, the apex court again reopened the matter through Suo Motu Review Petition No,52 of 1993 titled Fida Hussain v. Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad and others and the apex court after reconsideration of the entire matter held in Para-13 of the said judgment reported as PLD 1995 SC 701:- "We may again observe that it is exclusively within the domain of the Government to decide whether a particular qualification will be considered sufficient for promotion from a particular Grade to a higher Grade and it is also within the domain of the Government to change the above policy from time to time as nobody can claim any vested right in the policy. However, it cannot abdicate its power to decide the above question in favour of a corporate body which is not in its control nor it can act in a manner which may be violative of Article 25 of the Constitution on account of being discriminatory. It is still open to the Government for future to provide <u>that academic qualification of B. Tech (Honours) will not be considered sufficient for promotion from BPS-16 to. BPS-17 if the same does not violate the above principle."
29, Finally the apex court after allowing Suo Motu Review Petition and recalling the judgment 'under review directed the competent authority to consider the case of B.Tech Engineers for promotion to BS-17. In the above noted background the question is whether the promotion of private respondents made before the amendment of relevant provisions was valid or not. No doubt the relevant rules known as "Punjab Communication and Works Department (Engineering Posts Qualification and Condition for Recruitment) Rules, 1985" were amended vide notification dated 16-12-2000 whereas private respondents were promoted on 15-9-2000. The relevant amendment in the schedule against Sr.No,4 (Assistant Engineer) was made through notification dated 16-12- 2000:--- "15 % by promotion on seniority-cum-fitness basis from amongst Sub-Engineers possessing qualification of B.E/B.Sc. Engineering/AMIE in the relevant discipline/B. Tech (Honours)."
Though the appellants could validly voice the grievance that promotion granted to the private respondents through the above noted amendment was not valid in the eye of law, yet, it would not be out of place to mention here that prior to the above noted amendment, through notification dated 14-11-1985 in the schedule following amendment was already made:-- "Degree in Engineering in the requisite discipline from recognized university or in equivalent qualification/registration as a professional Engineer with Pakistan Engineering Council."
30. The words 'equivalent qualification' incorporated in the said rules through the notification dated 15-11-1985 according to the learned Counsel for private respondents means 'the qualification as prescribed by the competent authority' and since through the policy of Federal Government dated 26-10-1973 as well as notification issued by Government of Punjab on 1-2-1981 B.Tech (Hons)
Degree holders were also declared to be treated at par with B.Sc. (Engineering) Degree, therefore, according to learned counsel for the private respondents the above noted amendment in the rules even after grant of promotion to the private respondents was neither relevant nor could be taken into consideration. Learned Counsel in this respect has placed reliance on a Full Bench judgment of this Tribunal recorded in Cases Nos.143/64, 145/65 and 333/169 of 1985 which 'was decided on 16-11- 1985 by holding "We, therefore, accept the appeals and direct the respondents to take B. Tech
(Hons) Degree at par with the B. Sc. (Engg.) in case of the appellants which is prescribed as requisite qualification for initial recruitment as well as promotion against 5% quota reserved for promotion on the basis of seniority-cum-fitness from amongst Sub-Engineers in the functional unit who possess qualification mentioned above. The respondents are directed to consider the appellants for promotion as Assistant Engineer/Assistant Director (Engg.)/Sub Divisional Officer against the vacancies occurring in their quota immediately after their obtaining the B. Tech
(Hons) qualification".
31. This Tribunal therefore has no option but to agree with the contention of learned Counsel for the private respondents and hold that at the relevant time they were holding requisite qualification for promotion as SDO (BS-17) and their promotion was validly made being admittedly senior to the appellants. This answers, the second point, recorded in Para-18 above.
32. Besides the above noted two points another important point raised by learned Counsel for private respondents was that since 1995 when the appellants were promoted on officiating basis, three seniority lists were issued on 19-1.1-1999, 8-6-2000 and 27-5-2002 showing these appellants not only junior to the private respondents but also on officiating basis but the appellants never challenged the said seniority lists any time and thus were estopped from voicing any grievance as held by the apex court in 2010 SCM R 450 and 1995 SCM R 1229. Although learned counsel for the appellants tried to repel the contention by arguing that the appellants from the day first had been litigating for their rights yet the fact remains that at no stage the above noted seniority lists were challenged, therefore, this Tribunal has no option but to agree with the contention of learned Counsel for the private respondents and the reliance by learned Counsel for the private respondents on the above noted judgments of the apex court is not only apt but the same also fully applicable to the facts and circumstances of the case.
33. Another important point raised by learned Counsel for private respondents is that the appellants never agitated against order dated 1-8-1995 till date and thus the same having become final could not be re-opened by this Tribunal after a lapse of near about 2 decades. The contention is that though as held by the apex court while deciding C.P. No,519-L of 2002 as noted above that the matter stood remanded to the competent authority yet the appellants could not take advantage of the said order nor could avoid the question of limitation. It is further argued by learned counsel that without availing the remedy of departmental appeal against, order dated 1- 8-1995 the appellants could not file present appeals which have been filed against the subsequent order of competent authority as well, as departmental appellate authority passed pursuant to the- orders of Hon'ble Lahore High Court, Lahore as well as the Hon'ble Supreme Court. According to learned Counsel for private respondents, these appeals are not maintainable for the reason that neither judgment of -the Hon'ble Lahore High Court, Lahore or the apex court could create fresh cause of action within the meaning of section 21 of the Punjab Civil. Servants Act, -1974 in favour of the appellants nor these appeals were maintainable without availing remedy, of departmental appeal in terms of. section 4 of the Punjab Service Tribunals Act, 1974. In this respect, learned Counsel has placed reliance on the judgments of apex court in the case of "Abdul Wahid v.
Chairman, Central Board of Revenue, Islamabad and another (1998 SCM R 882) Dr. Anwar Ali Sahto v. Federation of Pakistan and others (PLD 2002 SC 101) and PLD 1996 SC 845". Learned Counsel further argued that as the question of limitation was a basic requirement, therefore, the said question cannot be compromised even if the department did not notice the question of limitation nor the service appeal before Tribunal would be deemed within time because there was no implied waiver of question of limitation as held by the apex court in 2006 SCM R 453 and 2010 SCMR 676 and 698.
34. on the other hand, the contention of learned Counsel for the appellants is that the effect of order of remand passed by Hon'ble Lahore High Court, Lahore was that the entire controversy stood revived as the appellants have now challenged the impugned order of competent authority as well as appellate authority within time, therefore, no question of limitation either arose nor can be allowed to be agitated at this stage. According to learned Counsel for the appellants the remand order of Hon'ble Lahore High Court, Lahore had the effect of setting aside all the previous orders and the competent authority was directed to pass fresh order in accordance with law.
35.Before proceeding to decide the question, this Tribunal would like to reproduce again the concluding portion of Hon'ble Lahore High Court, Lahore in its judgment dated 24-1-2002 which is in the following words:--- "For these reasons, intervention of this court at this juncture is declined. It is directed that the Competent Departmental Authority will decide the controversy in accordance with law after hearing both the affected parties and after investigation of necessary facts."
34.The words 'it is directed that the competent departmental authority shall decide the controversy in accordance with law' are very relevant. These words mean that the Authority shall decide the matters in accordance with law. Since question of limitation was also question of law, therefore, the same had to be decided before passing any order on merits. This Tribunal is at a loss to understand as to how after accepting order dated 1-8-1995 granting them promotion on officiating basis in express terms and without showing any grievance against the same, the appellants could re- agitate the matter in the year 2001 by filing writ petitions seeking redressal of their grievance. The silence on their part from the date of passing of order dated 1-8-1995 till the filing of writ petition is not only beyond one's comprehension but also speaks volume on their conduct. It appears that they not only accepted the order dated 1-8-1995 but also went into deep slumber, meaning thereby that they had accepted the said order as valid and lawful order. It was, therefore the duty of appellants to have satisfied the competent authority, departmental appellate authority as well as this Tribunal that either they were justified for approaching the Hon'ble Lahore High Court, Lahore by way of filing above noted writ petitions or seeking re-opening of the matter through the writ petitions.
37. Be that as it may, as held by the apex court in the case of Abdul Wahid v.' Chairman, Central Board of Revenue, Islamabad and another (1998 SCMR 882) "If original representation was barred by time and aggrieved employee did not disclose sufficient causes for such delay or inability to move Departmental Authority within prescribed period, then no subsequent order or disposal of such incompetent representation/ appeal/review could create fresh cause of action or automatically operate to condone delay of limitation in availing the remedy under section 4 of Service Tribunals Act, 1974."
38. The above noted judgment of apex court leaves no room for doubt that neither filing of writ petition by the appellants nor its decision could confer fresh cause of action on the appellants nor would automatically operate to condone the delay of limitation in availing remedy under section 4 of Service Tribunals Act, 1974. Further section 21 of the Punjab Civil Servants Act, 1974 is very much clear which provide period of 60 days for filing appeal, review or representation etc. to the authority from the date of communication of adverse order but in the instant case despite knowledge the appellants not only accepted order dated 1-8-1995 and also accepted their promotion on officiating basis but also remained silent and never filed any representation against the said order within the prescribed period. In the case of Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others (PLD 2002 SC 101) the apex court held:---
(i) Service Tribunal has to press into service question of limitation strictly;
(ii) Delay in following of proceedings cannot be condoned lightly because limitation creates a right in favour of one of the parties.
39. Similarly it was held by the apex court in 2006 SCM R 453 and 2011 SCM R 698=2011 PLC (C. S.)
846 "If appeal before departmental appellate authority was time barred, the appeal filed by civil servant before the Tribunal would be incompetent and time-barred". The apex court also in a recent judgment i,e, 2010 SCMR 676 and 698 held "Question of limitation being basic requirement cannot be compromised and there was no implied waiver of condonation of delay and limitation must be followed strictly". This Tribunal is also in agreement with the contention of learned Counsel for the private respondents that without availing remedy of departmental appeal against original order dated 1-8-1995 the appellants could not approach this Tribunal as held by the apex court in PLD 1996 SC 845.
40. Since for the determination of terms and conditions of a civil servant, this Tribunal is the only forum, therefore, before approaching this Tribunal, a civil servant has to satisfy the legal requirements especially question of limitation with reference to section 21 of the Punjab Civil Servants Act, 1974 as held by the apex court in the case of Qasim Wasti and others v. Secretary to Government of Punjab, Revenue Department, Board of Revenue, Lahore and others 2009 SCM R 1204=2011 PLC (C.S.) 997, therefore, on this ground also the appellants had to show that they agitated the matter in accordance with law instead of taking refuge on the remand order- of Hon'ble Lahore High Court, Lahore which too declined to redress their grieVance and instead leave the matter for the decision by this Tribunal. As the appellants have failed to satisfy the Tribunal on the question of limitation as well as estoppal, they are therefore non-suited on this score also.
41. Resultantly all these appeals have no force and the same are dismissed.
42. Despite the above noted decision, this Tribunal still would like to express its strong displeasure over the conduct of competent authority by keeping the fate of appellants hanging on fire for an indefinite period by treating them though as SDOs BS-17 yet on officiating basis. This . Tribunal feels that despite provisions of Rule 13 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 allowing competent authority to appoint a civil servant on officiating basis but the said powers of authority cannot be allowed to remain in force for an indefinite period.
Admittedly in the present case all the appellants were promoted in the year 1995 on officiating basis but till date they are being treated so which is not only against the spirit of above noted rules conferring such power in peculiar and special circumstances but also exercise of power by the competent authority to exercise such powers in an arbitrary manner defeating the spirit and object of law and for that matter the appellants could validly rely upon the judgment of Quetta High Court in Jafar Ali Akhtar Yousafzai's case (PLD 1970 Quetta 115) noted above. This Tribunal is further disturbed by the order passed by the Chief Secretary, Government of Punjab, Lahore dismissing the departmental appeal of appellant and further directing ",However, Administrative Department may initiate a summary for the Chief Minister to allow the SDOs (on officiating basis) to continue as such as 'a special dispensation in relaxation of Rule 13 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 till their regular promotion on seniority-cum- fitness basis." In fact the appellate authority instead of issuing above direction should have asked for regularization of the appointments without failure in accordance with law. The above noted direction rather has added further to the ordeal of the appellants as the same give the impression that their services be further continued on officiating basis.
43. In this view of the matter, this Tribunal feels appropriate to issue direction to the competent authority for immediate decision with regard to regularization of promotion of the appellants otherwise they would be justified in claiming implied regularization as well as the rights allowed to regularized employees as held by the apex court in 2004 SCM R 630 especially when their basic appointment was neither illegal nor against merits and they have rendered long service to their Department without any adverse record. The competent authority is therefore expected to expedite the matter and ensure the regularization of the appellants with dispatch but strictly in accordance with law without failure.
44.Office to send copy of this judgment to Secretary, Government of Punjab, C&W Department, Lahore for compliance.