' WAQAR AHMAD SETH, J.--- Appellant Syed Kamal Hussain Shah, Additional District and Sessions Judge, Nowshera instituted the present service appeal for the grant of first ever annual increment in BPS-17 with effect from 1-12-1988, with all back-benefits in the altered circumstances in the form of revision of pay scale and upgraded status of Judicial Officer.
2. Appellant was appointed as Civil Judge on 27-5-1988 in BPS-17 and preceded to tender resignation on 4-6-1988 as Naib Tehsildar. The resignation of the appellant was accepted on 14-6- 1988 w,e,f, 4-6-1988 from the post of Naib Tehsildar BPS ,14. On 5-6-1988 the appellant submitted his arrival report before respondent No,1 in pursuance of appointment order and vide order dated 11-6- 1988 posting order was made and finally appellant assumed the charge at D.I. Khan on 18-6-1988.
According to the appellant in the last week of March, 2008 it came to his notice that he was not granted/levied first ever increment at the rate of Rs,155 per month with effect from 31-12-1988.
Accordingly, upon knowledge appellant applied for the same on 31-3-2008 before respondent No,1.
The respondent No,1 instead of deciding the same referred the same to the Provincial Finance Department i,e, newly added respondent No,2 and the said respondent vide order dated 17-5-2008 communicated to the appellant on 27-5-2008, informing that the request was regretted under Rule-7 of the Provincial Civil Services Pay Revision Rules, 1978.
3. From the record it appears that many other applications were made and finally appellant filed a Writ Petition No,95 of 2009 on 24-2-2009 before Peshawar High Court, Peshawar but the same was withdrawn on his own request on 10-6-2010. Instead of filing an appeal before this forum appellant again submitted a fresh review petition before the respondents. The fresh Review Petition was refused on 10-8-2010 and as such, finally petitioner filed the present appeal on 5-9-2010.
4. Arguments heard and record perused. Learned counsel for the respondent at the very outset objected to the limitation and appellant contended that the pay and allowance are recurring cause of action, therefore, no limitation is applicable.
5. Appellant is asking for increment which was due on 1-12-1988 but nowhere in his appeal or at the arguments stage he explained the position that how he got the knowledge and information at the belated stage i,e, last week of March, 2008. If at all March, 2008 is taken into account the appellant as per law applicable submitted his representation, which was regretted vide order dated 17-5- 2008 communicated to him on 27-5-2008 and from their onwards appellant has not put forward any cogent reasons for delay.
6. If the period of filing of writ petition and its withdrawal is condoned under section 14 of the Limitation Act, even then the present service appeal seems to be hopelessly time barred, as there is no provision of review application etc. Moreover, being a Judicial Officer, conscious of the fact, appellant must have filed an application for condo nation of delay because on the face of it the service appeal, no doubt on recurring cause of action, is time barred and by operation of law, section 5 of. The Limitation Act will come into operation, whereas no such application for condo nation of delay has been filed. By no stretch of imagination such a long period and careless attitude of the appellant can be condoned. The law on the subject is very clear and by know settled that each and every day is to be explained from the cause of action and according to the appellant himself his first representation/ appeal was regretted on 17-5-2008.
7.There is no provision whatsoever of review or fresh application under the (N.-W.F.P.), Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunals Act, 1991 and N.-W.F.P. Subordinate Judiciary Service Tribunal Rules, 1992 nor the same give any fresh cause of action and as such the present appeal is hopelessly time barred.
8. As regarding the merits of the case, appellant was not granted annual increment for the year, 1988 as the required six months service was not to his credit on first of December, 1988 under Rule 7 of the Pay Revision Rules, 1978 nor appellant was having six months stay in the B releliant scale by that time. Appellant had two months and five days in BPS-14 and five months twenty seven days in BPS-17 till 31-3-1988 and as such definitely short by four/five days in BPS-17. Rule-7 of Pay Revision Rules, 1978 reads as under:--- ##TSE# Increments in the Revised National Pay Scales.--- The increments in the Revised National Pay Scale, shall fall due on 1st day of December, following the completion of at least six months service at a stage in the relevant Revised National Pay Scale.
6. In reference to the said rule, Regulation (CSR) 418 is relevant which is reproduced as under:- 418(a) Resignation of the public service, or dismissal or removal from it for misconduct, insolvency, inefficiency not due to age, or failure to pass a prescribed examination entails forfeiture of past service.
(b) Resignation of an appointment to take up another appointment, service in which counts, is not a resignation of the public service.
10. It is an admitted fact that appellant resigned from the post of Naib Tehsildar BPS-14 and joined as Fresh the post of Civil Judge, which is in BPS-17. The appellant was not a confirmed/regular employee of his previous department nor did he apply for the present post through proper channel. The appellant cannot take the benefit of Fundamental Rule-26 (b) as he is not having six months service at a stage in the relevant scale.
11. In view of the above, this Service Appeal is dismissed on limitation as well as on merits, with no order as to costs.