IJAZ AHMED CHAUDHRY, J. --- These appeals by of the Court have been directed against the judgment 25.11.2011 passed by the learned Punjab Service Tribunal, Lahore, whereby the appeals filed by the were dismissed.
2. Bnafly stated the facts of the matter are that appellants who were possessing B.Sc. Engineering Degr promoted to the post of Assistant Engineer in BS-17 on officiating basis between the years 199' to 1998 whereas the respondents who were holding B. Tech. (Hons) Degree were promoted in the year 2001 to the same post on regular basis. Appellants filed Constitution petitions before the High Court and challenged the promotion of the respondents. The learned High Court while dismissing the writ petitions directed the Department to decide the controversy in accordance with law after hearing both the parties. Appellants challenged the said order in Intra-Court Appeal as also before this Court but remained unsuccessful. Thereafter, the Secretary, Communication & Works Department, Government of Punjab, took up the matter and vide the order dated 18.12.2002 he regularized the appointment of the appellants on the advice of the Regulating Wing of S&GAD and on the ground that regular posts were available in the year 1995-1998 at the time of promotion of the appellants on officiating basis. Consequently, the promotion of the respondents was converted as officiating. The respondents assailed this order before the learned Punjab Service Tribunal by filing Appeals. The learned Service Tribunal vide the order dated 10.12.2003 accepted the appeals and set aside the order dated 18.12.2002 of the Competent Authority and directed fresh hearing of the matter after hearing all concerned within a period of 60 days. Pursuant to the direction of the learned Service Tribunal, the Department again took up the matter and vide the order dated 27.7.2005 the Competent Authority decided that officiating promotion of the appellants could not be treated as regular. Feeling aggrieved, the appellants filed departmental appeals but as the same were not decided within the statutory period of 90 days, therefore, they filed the impugned appeals before the Punjab Service Tribunal. During the pendency of appeals before the Service Tribunal, it came to the notice of the learned Tribunal that one Section Officer in the office of Secretary C&W Department, Lahore, instead of putting departmental appeals before the Appellate Authority/Chief Secretary Punjab opted to decide these appeals of his own on 28.12.2005. On this, the learned Tribunal directed the Appellate Authority to decide the departmental appeals of the appellants within 60 days. Pursuant to this direction of the Tribunal, the Chief Secretary/Appellate Authority finally decided the matter and rejected the departmental appeals of the appellants. The learned Service Tribunal vide the impugned judgment also dismissed the appeals filed by the appellants. Thereafter, the appellants filed Civil Petition Nos. 164 to 172, 230 to 236 & 240 of 2012 before this Court, out of which have arisen the instant appeals, in which leave was granted on 15.3.2012, which reads as under:--- "Leave to appeal is granted in all these listed petitions, inter alia, to examine if an official/officer has been authorized to be competent authority to hold a post against a clear vacancy in officiating capacity, whether it would tantamount to his promotion because an employee cannot be allowed to continue on officiating position for an indefinite period; subject to all just exceptions, keeping in view the case of Jafar Ali Akhtar Yousafzai v. Islamic Republic of Pakistan (PLD 1970 Quetta 115), wherein the identical issue regarding a Superintendent in the Geological Survey of Pakistan has been discussed."
3. Learned counsel for the appellants has contended that appointment of a duly qualified person against a permanent vacancy could not be described as officiating as the same could be deemed regular under Section 2(2) of the Punjab Civil Servants Act, 1974; that the learned Service Tribunal while dismissing the appeals of the appellants has not taken into consideration the law laid down by this Court; that the learned Service Tribunal has wrongly relied upon the judgments of this Court reported at Tariq Aziz-ud-Din and others (2010 SCMR 1301) & Dr. S.M. Lnkisar Ali v. Government of Sindh (2011 SCMR 121) and the unreported judgment passed in Civil Petition No. 1583L/1998; that even if the case is not covered by Rule 13 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, even then an appointment made in the prescribed manner could not be treated as officiating; that during the period 1995-1998 the relevant qualification of the respondents for promotion was lacking; that long temporary service was to be considered as regular due to flux of time and that the competent authority had passed a detailed order on 18.12.2002, therefore, the same provided valid and legal basis for declaring the promotion of appellants as regular. Learned counsel in support of the contentions has relied on Jafar Ali Akhtar v.
Islamic Republic of Pakistan (PLD 1970 Quetta 115), Muhammad Tahir v. Secretary, Communication and Works Department, Government of Punjab, etc. (2009 PLC (CS) 527), Khalil-ur-Rehman Khan, SP, Khanewal v. Muhammad Ali Mirza (1992 SCMR 989), Luqman Zareen and others v. Secretary Education NWFP etc. (2006 SCMR 1938), Irian Majeed v. University of Karachi, etc. (2010 PLC (CS)
1118) and Muhammad Amjad v. Dr. Lsrar Ahmed, etc. (2010 PLC (CS) 760).
4. Respondent Muhammad Faruq Malik, who appeared in person, submits that the appellants had accepted their promotion on Officiating basis and never challenged the same before any forum for about 6 years; that there was no question of ineligibility or lack of qualification on the part of the respondents because the matter stood finally decided by the competent authority that B. Tech.
(Hons) Degree be treated at par with B.Sc. (Engineering) Degree; that in view of Rule 13 of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974, officiating promotion neither confers any right of promotion on regular basis nor any such promoter could claim the same as regular; that since 1995 to 2002 three seniority lists have been issued and in all these lists, appellants were shown as officiating SDOs but they never challenged the same; that in the presence of express provisions of Rule 13 of the ibid Rules, 1974, the provisions of Section 2(2) of the Rules being deeming clause could not be given effect to and that as the, appellants were admittedly junior to the respondents and were not eligible for such promotion on regular basis, they were rightly ignored and their promotion was rightly treated as on officiating basis.
5. Learned Assistant Advocate General, who appeared on behalf of the Government of Punjab has supported the impugned judgment.
6. We have heard learned counsel for the appellants, respondent in person, as also learned Assistant Advocate General at some length and have perused the record.
7. The questions involved in these appeals are three-fold; (i) whether the appointment of appellants on officiating basis was valid; (ii) whether the respondents were rightly promoted on regular basis in the year 2001; and (iii) whether the appeals before the Service Tribunal were time- barred?
8. After the enforcement of Punjab Civil Servants Act, 1974, as well as Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974, the legal position is clear. The Punjab Civil Servants Rules were framed by the Government pursuant to the powers conferred under Section 23 of the Punjab Civil Servants Act, 1974. In terms of Section 13 of the Rules, the Government conferred power on the appointing authority to make appointment by promotion against such post on officiating basis. It would be relevant to reproduce the said Rule, which is as under:---
13. Appointment on officiating basis.-- (i) Where a post falls vacant as a result of deputation, posting outside cadre, leave, suspension or appointment on acting-charge basis of the (regular) incumbent or is resented 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: Provided that a post reserved for regular promotion, on deferment of a civil servant due to any reason, may be filled by promotion on officiating basis.
(ii) 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 of the appropriate selection authority.
(iii) 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.
(iv) Officiating promotion shall be made on the same terms and conditions as to pay as are prescribed for regular appointment by promotion.
9. From the bare perusal of the above provision, it is clear that the appointing authority is envenomed to make appointments on officiating basis. This 'E. Yids us to the question as to whether at the time of promotion of the appellants on officiating basis, were there permanent posts available or not? We have found that regarding this matter, three inquiries have been held in order to resolve the issue. First was held on 10.9.2002 and vide the order dated 18.12.2002, the appellants were declared to be promoted on regular basis. Second was dated 27.7.2005 whereby it was main!y held that there is no ground for considering the officiating promotion of appellants as on regular basis on the ground that promotion cannot be granted with effect from an early date.
This inquiry was carried out by a committee headed by Additional Chief Secretary on the direction of the Chief Secretary. The Committee after detailed deliberation on 27.10.2010 held that the prayer of the appellants for promotion on regular basis is not legally tenable and is liable to be rejected and that there were no permanent posts available at the time of appointment of the appellants on officiating basis. Except the order dated 18.12.2002 which was passed without haring some of the parties, it is the consistent stand of the Department that the appellants could not have been promoted on regular basis. Whether at that time permanent posts were available or not is also a question of fact, which cannot be gone into in these proceedings. This Court in Tariq Aziz-ud-Din case reported at 2010 SCMR 1301 has specifically cleared that appointment on acting charge basis does not confer any vested right for regular promotion, as is evident from Rule 8B of the Civil Servants (Appointments, Promotion and Transfer) Rules, 1973. It is important to note here that the said Rule 8-B is pari materia to Rule 13 of the Punjab Civil Servant (Appointment & Conditions of Service) Rules, 1974. It is also noteworthy that the appellants never challenged the condition of 'officiating' for a long period of about 6 years. It was for the first time in the year 2001 when they agitated the matter before the learned High Court when the respondents were promoted as Assistant Engineers/SDOs on regular basis. Besides, since 1995 three seniority lists were issued showing the appellants not only junior to the respondents but also on officiating basis but they kept mum and never challenged the said lists. Learned counsel tried to argue that the effect of order of remand dated 24.1.2002 passed by the learned High Court was that the entire controversy stood revived, therefore, no question of limitation can be raised. We have noted that the learned High Court had merely remanded the matter to decide the controversy afresh in accordance with law and had not condoned the delay. If we keep in mind the words 'in accordance with law', then the question of limitation is also a question of law. The appellants after their appointment on officiating basis in the years p995-1998 could not have agitated the matter in the year 2001. It seems they had accepted their appointment on officiating basis. It is by now a well-settled principle of law that if a departmental .Representation is barred by time, then without disclosing any sufficient reason for delay, no subsequent order of disposal of such incompetent representation could create fresh cause of action and that the appeal filed by the civil servant before the Tribunal would be incompetent. Reliance in this regard has been placed on Abdul Wahid v. Chairman, Central Board of Revenue, Islamabad, etc. (1998 SCMR 882) & NED University of Engineering & Technology v. Syed Ashfaq Hussain Shah (2006 SCMR 453. The question of limitation being basic requirement has to be strictly dealt with. So far as the eligibility of respondents is concerned, we find that the Federal Government had issued a policy letter dated 26.10.1973 holding that B. Tech. (Hons) degree be treated at par with B.Sc. (Engineering) degree. Pursuant to this decision, the Government of Punjab also issued a notification on 1.2.1981 declaring B. Tech. (Hons) degree in particular specialization equivalent to corresponding B.Sc. (Engineering) degree. The Government of Punjab also amended the Rules of (i) Communication & Works Department, (ii)
Irrigation and Power Department, and (iii) Housing Physical and Environmental Planning Department for promotion of Sub-Engineers. As a result several persons were promoted. Despite the above-said amendment, several employees of Physical and Environmental Planning Department were not allowed promotion on the ground that B. Tech. (Horiz, degree is not equivalent to B.Sc. (Engineering) deg -ee. Pakistan Engineering Council also refused to; recognize B.
Tech. (Hons) degree equivalent to B.Sc. (Engineering) degree. The matter ultimately then came up before this Court in Civil Petition No. 216/1991 but this Court dismissed the same on 5.12.1992.
However, this Court in Suo Motu Review Petition No. 52/1993 reopened the matter and while recalling its earlier order directed the competent authority to consider the case of B. Tech. (Hons) degree holders for promotion to BS-17. Pursuant to this Direction of this Court the service rules of Assistant Engineers were amended on 16.12.2000 whereby B. Tech. (Hons) degree holders also became eligible for their promotion as Assistant Engineers/SDO. Even otherwise, it has been brought to our notice through CMA No. 4341/2012 that on humanitarian grounds, the Chief Minister has allowed 27 reverted officiating Assistant Engineers/SDOs including the present appellants to continue on officiating basis as a special dispensation in relaxation of Rule 13 till their regular promotion on seniority-cum-fitness basis vide the order dated 22.2.2011 that a meeting of Departmental Promotion Committee was convened on 16.12.2011 in which six appellants/officiating AEs/SDOs were also considered, out of which three have been promoted on regular basis vide order dated 27.12.2011 whereas cases of three have been deferred due to their incomplete service; that since the last DPC, for more posts against 15% quota have fallen vacant and the appellants will be considered on their turn in the forthcoming meetings of Departmental Promotion Committee, The case reported as Jafar All Akhtar Yousafzai v. Islamic Republic of Pakistan (PLD 1970 Quetta 115) on the basis of which leave was granted is distinguishable as it relates to the period before the enforcement of Punjab Civil Servants Act, 1974 and the Rules framed thereunder. The learned Punjab Service Tribunal has passed a well-reasoned judgment, which is unexceptionable.
10. For what has been discussed above, we do not find any merit in these appeals, which are accordingly dismissed.