M. BURHANUDDIN KHAN, J.-By this petition the petitioner has sought leave to appeal against the order of the Service Tribunal dated 19-5-1981 whereby his Appeal No. 91/R of 1978 was dismissed.
2. The facts stated in the petition are that the petitioner was appointed as Junior Auditor on 15-6- 1961 and after qualifying the departmental examination he was promoted as Auditor on 1-2-1967 and later on, confirmed in Auditor's grade on 1-5-1970.
3. Disciplinary proceedings were taken against him under the Efficiency and Discipline Rules, 1973 and he was awarded the penalty of reduction to the lower post of Junior Auditor for a period of 3 years w. e. f. 2-8-1974 vide Office Order dated 3-8-1974. On 17-8-1977 another Office Order was issued to the effect that on the expiry of the period of penalty awarded to the petitioner he was "restored to the Auditor's Grade No. 7" and his pay was consequently refixed in Grade 7 after counting his previous service from the date of his original promotion as auditor for purposes/increments.
4. During the three years period of penalty the petitioner's colleagues had been promoted to the next higher grade of Audit and Accounts Assistant Grade 11. He submitted a representation dated 21-8-1977 for his promotion to Grade 11 on the basis of his original seniority in Grade 7. This was rejected by the Military Accountant-General without specifying any reason vide order dated 19-10- 1977. Thereafter the petitioner submitted a depart--mental appeal dated 28-11-1977 which was rejected after consultation with the Establishment Division. According to the' appellate order dated 14-12-1978 the petitioner was allowed to count his seniority from the date of his "re-promotion" as Auditor after completion of the punishment period. This order was challenged by the petitioner through appeal dated 12-12-1978 before the Service Tribunal, Islamabad which was dismissed on 10-5-1982.
5. Learned counsel for the petitioner contended that where a major penalty of reduction in rank is imposed expressly for a specified period, then after the expiry of that period, the competent authority expressly orders "restoration" and not "re-promotion" of the civil servant to his original rank and grade. He also contends whether the civil servant concerned will, on restoration, take his' seniority from the date of his original promotion, appointment to this rank or the date of restoration.
He referred to the Efficiency and Discipline Rules, 1973 under which the major penalty of reduction to a lower post was imposed on the petitioner; and contended that it did not require specification of any period for which the penalty would last. The corresponding rule 4 (1) (d) in the Efficiency and Discipline Rules, 1960 and rule 49 (iii) of the Civil Services Classification, Control and Appeal Rules, 1930 are also to the same effect and are identically worded. Under the last mentioned rule 49 certain decisions of the then Government of India are reproduced which are relevant to the point under consideration. Although Decision No. 3 (ii) implies that loss of seniority is inherent in an order of reduction passed under rule 49. Decision No. 3 (ii) which also talks of seniority on "re-promotion" and not "restoration" as in the instant case, lays down that the officer concerned should not be "restored'.' to his original position unless this is specifically laid down at the time the order of punishment was passed or revised an appeal.
6. Rule 29 (P. R.) directs that while imposing the penalty of reduction to a lower grade or post the competent authority must state the period for which it shall be effective and whether,, on restoration, it shall operate to postpone future increments and if so to what extent. These Fundamental Rules are the earliest of all the statutory rules referred to above and came into force on 1st January, 1922 but these are primarily financial rules relating to pay and allowances, leave and pensions only and not to disciplinary matters except indirectly. In 1968 it was notified by the Establishment Division that there was an apparent discrepancy between the Fundamental Rule 29 and rule 4 (1) (d) of the Efficiency and Discipline Rules, 1960 (which had replaced rule 49 of the 1930 Rules) and it was decided that in imposing the penalty of reduction to a lower post "care should be taken to see that such an imposition is for a specified period and it should be stated whether, on restoration, it shall operate to postpone future increments and if so, to what extent, in order to make it in conformity with Fundamental Rule 29.
7. The learned counsel further contended that it is evidently the intention of the law that where an order of reduction to a lower post is not for a specified period as contemplated in all the three above used sets of disciplinary rules, loss of seniority is inevitable when the civil servant is "re- promoted" in due course where the penalty is initially imposed for a specified period only, then after the completion of that specified period, the competent authority expressly orders restoration and not "re-promotion" to the original grade and also allows all increments in the fixation of his pay then the inevitable conclusion is that the original seniority of the petitioner will not be affected and he will be treated as having been automatically restored to his original seniority in that grade.
8. The learned Service Tribunal while dealing with this question which is the moot point in this case observed that "the position admitted by both the parties was that the provision of Classification Rules (rule 49 (3) (ii)) quoted by the learned counsel for the appellant were applicable to the case" and asked the Representative of the Department "whether at this stage any such order to decide the seniority while restoring the appellant to Grade 7 after fulfilment of punishment, have been made by the competent authority" The Departmental Representative placed before the Tribunal the relevant file of the Department dealing with the case of the petitioner containing order dated 26-10-1977 in which the Military Accountant-General is the competent authority, has decided the issue, and had not allowed the seniority in continuation of his original service. It was further observed by the Tribunal "Since specific order has been made in this case disallowing the seniority for the previous period within the meaning of rule 49 (3) (ii) of Classification, Control and Appeal Rules, the question of seniority has already been decided and no benefit of continuous service is available to the appellant for seniority" and on this ground his appeal was dismissed vide the impugned order dated 19-5-1961.
9. The learned counsel for the petitioner has not been able to show that the points now raised before us referring to certain decisions and the implications of the rules were urged before the learned Tribunal and not considered. As such we would not allow the petitioner to raise new points at this stage. This petition is thus dismissed.