' FAISAL ZAMAN KHAN, (MEMBER).--- This appeal under Section 5 of the Punjab Subordinate Judiciary Service Tribunal Act (No,XII of 1991) (Act) has been filed impugning order dated 10.06.2013 communicated by respondent No,1 by virtue of which representation filed by the appellant for grant of proforma promotion as Senior Civil Judge and Additional District and Sessions Judge has been declined.
2. Succinctly, the facts of the case are that appellant was appointed as Civil Judge on 06.08.1988.
His batch-mates were promoted as Senior Civil Judges on 10.10.2001, however, his case was considered and ignored due to adverse remarks recorded against him in the ACRs for the period from 10.04.1997 to 01.09.1997. Feeling aggrieved appellant preferred Service Ajipeal No,14/2002 before this Tribunal. While the said appeal remained pending, on 10.11.2003, batch-mates of the appellant were promoted as Additional District and Session Judges.
3. The said Service Appeal was accepted on 26.02.2004 and the adverse remarks were expunged, however, this order was assailed by respondent No,1 before the Honourable Supreme Court of Pakistan through CPLA No,783-L/2006.
4. After the acceptance of the appeal, on 18.10.2004, appellant was promoted as Senior Civil Judge, whereupon, on 04.06.2005, he filed a representation for considering him for promotion from the date when his batch-mates were promoted as Senior Civil Judges. Vide order dated 20.07.2005 decision on the representation was deferred till the decision of the CPLA. In the meantime, on 13.10.2008, appellant was promoted as Additional District Judge, whereupon, on 29.11.2008, in continuation of his previous representation he filed another representation before respondent No,1 for considering him for promotion to the post of Senior Civil Judge and then to the Additional District Judge along with his batch-mates. Thereafter, CPLA was disposed by the honourable apex Court on 31.7.2012, whereafter, representations of the appellant were considered and dismissed on 10.06.2013, hence, this appeal.
5. At the very outset, learned counsel for the appellant has been confronted with the situation that the initial representation filed by the appellant dated 04.06.2005 was barred by time, therefore, the subsequent representation as well as the service appeal were not maintainable.
6. Replying to the above, while placing reliance on judgments reported as Syed Ashfaq Hussain Shah v. N.E.D. University of Engineering and Technology, Karachi and others (2007 SCMR 73), Messrs Sui Northern Gas Pipelines Ltd. v. Malik Murawat Hussain (2004 SCMR 527), Muhammad Boota v. The Chairman, Pakistan Postal Services Corporation, Islamabad and others (1998 SCMR 2652), Muhammad Jan Marwat and another v. Nazir Muhammad and 17 others (1997 SCMR 287) and Anwar Muhammad v. General Manager, Pakistan Railways, Lahore (1995 SCMR 950) learned counsel for the appellant asserts that since the departmental representation filed by the appellant was dismissed on merit, therefore, it will be deemed that the delay, if any, caused in filing the departmental representations has been condoned, therefore, through the present appeal this cannot be examined that whether departmental representations filed by the appellant were barred by time.
7. Contrary to the above, learned counsel for respondent No,1 submits that .The departmental representations filed by the appellant were barred by time, therefore, this appeal is not maintainable.
8. Arguments heard. Record perused.
9. Under Section 5 of the Act, an appeal can be filed before this Tribunal provided a right of appeal/review/representation to the A departmental authorities as provided under the Punjab Civil Servants Act, 1974 or under any other rules has been availed.
10. Under Section 21 of the Punjab Civil Servants Act, 1974, a person aggrieved of any departmental order can file a representation within 60 days from the order he is aggrieved of. In the case in hand, limitation for filing, a representation accrued to the appellant from the date when his batch-mates were promoted as Senior Civil Judges (10.10.2001), however, he did not agitate his grievance at that point in time.
11. For a while if this is presumed that appellant could not file his representation due to pendency of his appeal against the adverse remarks and once those were expunged he approached respondent No,1, the same also cannot come to his rescue. Admittedly, his appeal against the adverse remarks was accepted on 26.02.2004, whereafter, on 18.10.2004, he was promoted as Senior Civil Judge, however, during this period he never filed a representation. Keeping in view Section 21 of the Civil Servants Act, 1974, appellant could have filed his departmental appeal within 60 days from 26.02.2004 (when his appeal was accepted and adverse remarks were expunged) or 18.10.2004 (when he was promoted a Senior Civil Judge), however, he preferred a representation on 04.06.2005, therefore, his representations were beyond the period prescribed under Section 21 ibid.
12. In view of the above and in the light of judgments of the honourable Supreme Court of Pakistan reported as Muhammad Asif Chatha and others v. Chief Secretary, Government of Punjab, Lahore and others [2015 SCMR 165], Sajjad Hussain v. Secretary, Ministry of Railways, Islamabad and others [2012 SCMR 195] and Raja Khan V. Manager (Operation) Faisalabad Electronic Supply Company (WAPDA) and others [2011 PLC (CS) 856] and Sohail Butt v. Deputy Inspector General of Police (North) National Highway and Motorway Police and others [2011 PLC (CS) 846] as the departmental representations filed by the appellant were not within time, therefore, the present appeal is not maintainable.
13. As regards the arguments advanced by the learned counsel for the appellant that as the departmental representation was decided on merit, therefore, the delay, if any, caused in filing the departmental representation has been impliedly condoned, thus, at this juncture question of limitation cannot be taken into consideration, it will be in the fitness of things, if we consider order dated 10.10.2013, whereby representations of the appellant were dismissed, which for convenience is reproduced as under: "CONFI DENT IAL LAHORE HIGH COURT, LAHORE No, 280/RHC/C-1 From The Registrar, Lahore High Court, Lahore.
To The District and Sessions Judge, Kasur. Dated Lahore, 10th June, 2013.
Subject: REPRESENTATION FOR GRANT OF PRO FORMA PROMOTION Dear Sir, ' I am directed to refer to the subject and to inform that representation of Mr. Khizar Hayat Gondal, Additional District and Sessions Judge, Kasur, for grant of pro forma promotion as Senior Civil Judge and as Additional District and Sessions Judge has been considered and declined by the Hon'ble Chief Justice and Judges.
2. The officer may be informed accordingly.
Sd/- (DAWOOD AHMAD)
ASSISTANT REGISTRAR (CONFIDENTIAL-1)
For Registrar.
' From the tenor of aforenoted order, this cannot be interpreted that the representations filed by the appellant were dismissed on merit and not on the ground of limitation. In these circumstances this Tribunal is of the view that the point of limitation can be looked into by this Tribunal keeping in view section 21 ibid read with Section 3 of the Limitation Act, 1908.
14. Keeping in view the above, judgments cited by the learned counsel for the appellant are distinguishable and are not applicable to the case in hand.
15. For what has been discussed above, this appeal being not IF maintainable is dismissed.