' Syed Arshad Ali, Member.--The appellant, above-named, being aggrieved and dissatisfied with the impugned order dated 05.05.2010 in which the appellant had been retired w,e,f, 08.03.2003 without giving due promotion and other benefits for which he was entitled under Rule-16(4) of Pakistan Rangers Recruitment Rules, 1968 had filed a Const. Petition # D-111/ 2011 in the Hon'ble High Court of Sindh at Karachi which was disposed of on the point of jurisdiction with direction to approach the Federal Service Tribunal for redressal of his grievances in accordance with law; hence, this appeal praying that the appellant be granted all due promotions from 1992 till his retirement on superannuation w,e,f, 04.05.2008 from the present rank of Inspector to SSR (BS-19) with all back benefits. In addition, the period of 8.3.2003 to the date of superannuation i,e, 4.5.2008 be treated as spent on duty.
2. The factual position as per memo of appeal is that the appellant joined Sutlej Rangers Lahore as Sepoy on 10.08.1963 and was promoted as Havaldar Clerk in 1971; later on promoted as Sub- Inspector (General Duty) in 1975. Subsequently, promoted to the rank of Inspector on 24.09.1983 after passing of promotion examination. Meanwhile, the appellant was detailed as security In cahrge at Governor House, Sindh in December 1983. Further by virtue of departmental proceedings, the appellant was confirmed as Inspector on 24.09.1984. The appellant attended promotion cadre Inspector to Deputy Superintendent Rangers and passed w,e,f, 24.12.1989 to 15.2.1990.
3. Owing to appellant's dedication and persistent hard work, the then Governor Mehmood A.
Haroon vide D.O. Letter addressed to Secretary, Ministry of Interior dated 13.11.1990, requested the services of the appellant on deputation from Pakistan Rangers to Governor House, Karachi against existing vacancy in order to make use of him constructively. In pursuance thereof, Interior. Division vide its letter No, 5/22/R/89 dated 02.02.1991 transferred Muhammad Nawaz Minhas from Pakistan Rangers and his services were placed at the disposal of Governor House, Karachi reproduced hereunder as:-- "(a) This Ministry has no objection to the deputation of Inspector Muhammad Nawaz to Governor House Karachi/ Government of Sindh.
(b) He will retain his lien/seniority in his parent department till he is finally absorbed.
(c) His transfer/deputation to the Government of Sindh will be treated as in the public interest in respect of pay protection and other fringe benefits etc.
(d) The services of Inspector Muhammad Nawaz of Pakistan Rangers are placed at the disposal of Government House Karachi/ Government of Sindh with immediate effect and till further orders".
4. Consequent upon the Interior Division's letter, Muhammad Nawaz Minhas was transferred and posted as Public Relation Officer in the Governor Sindh w,e,f, 2.2.1991, Pakistan Rangers notified vide order # 132/CRO/E-16/500 dated 28.08.1990 the transfer of the appellant from Pakistan Rangers to Governor House, Karachi. The Governor Mahmoud A. Haroon vide DO letter dated 27.06.1993, the then Governor late Hakim Muhammad Said vide DO letter dated 04.08.1993 and again Governor Mahmoud A. Haroon vide DO letter addressed to Chief Minister of Sindh for nomination/ appointment of Muhammad Nawaz Minhas, the appellant as Assistant Commissioner without making reference to the Sindh Public Service Commission.
5. The appellant was abruptly relieved from the Governor House w,e,f, 08.03.2003. The Secretary to Governor Sindh vide letter dated 17.03.2003 addressed to Chief Secretary Government of Sindh proposed that a summary for Chief Minister may be submitted for absorption of the appellant in Government of Sindh in BPS-17 w,e,f, 19.12.1990. Being relieved from Governor House, the appellant approached the Government of Sindh. The Services & General Administration (S&GAD), Government of Sindh, inquired from the Director General Rangers vide letter about updated status of the appellant as to whether the appellant was employee of Pakistan Rangers or otherwise so that his status with regard to the deputation with Sindh Government could be determined? The Central Record Office, Pakistan Rangers Lahore vide letter dated 19.04.2003 informed the S&GAD Government of Sindh that the name of Muhammad Nawaz Minhas, Inspector Rangers had been struck off the strength of Pakistan Rangers w,e,f, 19.12.1990 as he was transferred to Karachi and appointed as Controller (BPS-17), Governor House, Karachi. The appellant finding no alternate and efficacious remedy as being relieved from Governor House, Karachi and non-acceptance by the Pakistan Rangers, the fate of appellant had been hanging in air, he filed Const. Petition # 108 of 2009 before the Hon'ble High Court. Of Sindh, Karachi. The High Court disposed of the petition with direction to the Director General, Rangers for decision in the application of appellant within a period of two months from the date of making application.
6. The Respondents No, 1 complied with the directions partially without considering all due promotions and other benefits of the appellant and passed the order on 05.05.2010 as under:- "(a) RJ-4376 Ex Inspector/GD Muhammad Nawaz Minhas to be TOS w,e,f, 9th March 2003.
(b) He be retired from service as Inspr/GD w,e,f, 4th May 2008 i,e, on completion of superannuation.
(c) Break up of his service w,e,f, 9th March 2003 to date of completion of superannuation to be treated as EOL".
7. To redress the grievances, the appellant filed a Misc. Application under Section-151, CPC in CPD # 108 of 2009 and on the said application, following order dated 13.12.2010 was passed by the Hon'ble High Court:- "Vide order dated 25.01.2002 this petition was disposed of with direction to Director General.
Pakistan Rangers to decide application, if one is filed, of the appellant within a period of two months. With this application the applicant has enclosed his application dated February, 2010 as well as order passed on that application on May 5, 2010 by which order appellant has been retired with effect from May 8, 2010 upon attaining the age of superannuation. Learned counsel for appellant states that petitioner's grievance regarding promotion has not been redressed.
' By passing order dated May 5, the Director General, Pakistan Rangers complied with order of this Court. However, if the appellant is aggrieved by any aspect of the order dated May 5, 2010 passed by Director General, Pakistan Rangers, he may institute independent proceedings in accordance with the law. No contempt has been made out. This application is therefore dismissed".
8. The gist of the respondents is summarized as under:--
(1) He was enrolled in Pakistan Rangers as Sep in 1963 and subsequently he was promoted as Inspector on 24.09.1983. During all this period he served in Pakistan Rangers and granted his due promotion as per his seniority.
(2) In 1991, his services were transferred to Governor House Sindh as Controller (BPS-17) whereas at that time his other colleagues were serving in Pakistan Rangers in BPS-16 as Inspector (lower grade).
(3) He was Struck Off Strength (SOS) from Pakistan Rangers with effect from 19.12.1990, as Inspector and his last pay certificate (LPC) in the rank of Inspector was also issued to Government of Sindh.
(4) As per (deputation rules) the maximum period of deputation is 5 years (with mutual consent of borrowing/ lending departments) whereas the applicant on completion of his 5 years on deputation, neither approached his lending department in Pakistan Rangers for continue/extension of his deputation period nor borrowing department approach for the purpose. However the applicant remained out of the department for period of 12 years, 2 months and 29 days, without any intimation till the time he was released from Governor House Sindh without any relinquish order).
(5) The applicant kept trying for his adjustment in Government of Sindh in BPS-17 18 without asking any NOC from his parent department in Pakistan Rangers because he was knowing that he had no lien with Pakistan Rangers with effect from 19.12.1990 in date of struck off strength (SOS).
(6) The period for which, the said Inspector, remained out of service with effect from 9.3.2003 (in after released from Governor House Sindh) to 04.05.2008 (in on completion of his superannuation of age) cannot be treated as on duty due to following:-
(1) The applicant was relieved from Governor House Sindh on 08.03.2003 and immediately after relieved, he should have approached Pakistan Rangers or S&GAD/Government of Sindh, which he did not.
(2) No proper release/relinquish order has been issued by the Governor House Sindh for the reasons better know by the applicant.
(3) The applicant was already struck off strength (SOS) from Pakistan Rangers with effect from 19.12.1990 due to his transfer to Government of Sindh on appointment of Controller (BPS-17) at Governor House Sindh. Neither he reported in Pakistan Rangers nor any proper relinquish order was issued by Sindh Government, so that the applicant could have been taken on strength.
(4) The applicant kept trying for his adjustment in Government of Sindh in BPS-17/18 without asking any N(C from Ministry of Interior his parent department ie Pakistan Rangers because he was knowing that he had no lien with Pakistan Rangers with effect from 19.12.1990 i,e date of his struck off strength (SOS).
(5) The applicant was retired as Inspector on humanitarian grounds due to following.
(6) He was serving as Inspector at the time when his services were transferred to Government of Sindh in 1991 in the light of Ministry of Interior Letter No, 5/22/R/89 dated 02.02.1991.
(7) From 1991 onwards he was not existing on the pool of Pakistan Rangers Punjab as he was adjusted as Controller (BPS-17) at Sindh Governor House. And was Struck Off Strength (SOS) from Pakistan Rangers. Later, it was revealed that he managed to adjust himself on contract basis without permission of his parent department as well as. Ministry of Interior.
(8) The applicant has rendered only 27 years, 4 months & 9 days service in Pakistan Rangers for which he got his promotion seniority up to the rank of Inspector as per his other colleagues Inspectors at that time.
(9) The applicant after his transfer/deputation with Sindh Governor House w,e,f, effect from 19.12.1990 to 4.5.2008 till the date of his superannuation neither served in Pakistan Rangers nor had any lien. Moreover on his transfer from Pakistan Rangers to Sindh Governor House as a Controller in grade 17, his status had changed and upgraded and he was struck off strength (SOS) from Pakistan Rangers with effect from 19.12,1990.
(10) The respondents denied as incorrect that the respondents had compensated the appellant at maximum level while considering his 27 years of service which he rendered in Pakistan Rangers prior to his deputation with Sindh Government, However, following clarification/ justification are being made bases upon orders for his further service had been passed by the Director General.
Pakistan Rangers in compliance of Sindh High Court order dated 25.01.2010:--
(a) The period of deputation of applicant from 19.12.1990 to 08.03.2003 cannot be treated on duty in Pakistan Rangers due to following reasons:--
(1) According to Establishment Code, Chapter III (Transfers, Postings and Deputations) Part-II Serial'28(1) "the normal deputation period, for all categories grades of Government Servant, shall be three years, extendable for another two years with prior permission of the Establishment Division. A Government Servant shall not, however, remain on deputation to another Government organization or an autonomous body/ corporation etc for more than five years". The ex-Inspector was placed on deputation and he did not follow the aim rule and before completion of three years he failed to get extension in his deputation and after completion of 5 years he did not report to his parent department in Pakistan Rangers as well as to the Ministry of Interior. In the light of above mentioned rule, the applicant neither contacted his parent department in Pakistan Rangers after completion of his 5 years at Governor House Karachi nor Government of Sindh initiated any ease with Ministry of Interior.
(2) According to Establishment Code, Chapter III (Transfer, Postings and Deputations) Part-II serial 28(2), "if a person is on deputation V) a Government organization and has completed the maximum tenure of five years, he must revert to be reverted by the borrowing office to his parent/ lending organization on the expiry of that period, otherwise, the audit offices concerned shall not make payment of salary and allowances to him beyond the date of expiry of five years". The applicant was not willing to leave the Governor House Karachi, because he was appointed as Controller (BPS-17) ie one step up to his previous rank in Pakistan Rangers at Governor House on contract basis. He joined contract appointment without getting any NOC from Ministry of Interior/ Pakistan Rangers during his deputation which he was not allowed, thus violated the principles of deputation.
(3) According to Establishment Code, Chapter III (Transfer, Postings and Deputations) Part-II serial 28(3), "if a person is on deputation to an autonomous organization corporation etc and has completed the maximum tenure of five years, it will be obligatory for that person to report back to his parent/lending organization on the expiry of that period, irrespective of his being relieved by the - borrowing Corporation/body etc. Failure to report back, unless specifically authorized by the Establishment Division will be construed as `misconduct' and make him liable to disciplinary action under the Government Civil Servants (Efficiency & Discipline) Rules, 1973". The applicant neither reported back to his parent department nor inform Ministry of Interior and Government of Sindh that his maximum tenure of deputation has been completed and he should be absorbed/report back to his parent dept. This shows his rust and malafidely placed himself at the place of deputation for about 12 years, which was totally wrong and illegal. As the applicant served at Governor House for more than 12 years, therefore, it cannot be treated on deputation for such a long time and he is liable to be taken disciplinary action against him according to the Government Civil Servants (Efficiency & Discipline) Rules.
1973.
(4) According to Establishment Code, Chapter III (Transfer, Postings and Deputations) Part-II serial 28(4). "In case a deputationists is proposed to be absorbed permanently in the borrowing office (either a Government Organization or a Corporation etc), such proposal shall be initiated by the borrowing office at least six months before the expiry of the deputation period of the deputationist concerned. Such a proposal, with the written consent or request of the deputations, shall be made by the borrowing office to the lending office (or parent office of the deputationst) which shall convey it decision (if necessary, in consultation with the Establishment Division) to the borrowing office as well as the deputationist, by the expiry of the deputation period. The applicant also did not forward his request/consent to his parent department regarding his absorption. According to the Deputation Policy/ Rules, the applicant should have reported to his parent department or asked advice regarding continuation of deputation. But neither the applicant nor the borrowing office in Governor House initiated proposal to Ministry of Interior/ Pakistan Rangers regarding his absorption at borrowing office. i.e. Governor House Karachi".
' An application for condonation of delay had also been filed by the appellant; respondent - organization filed counter - affidavit to the said application.
9. The learned counsel for the appellant submitted written synopsis and argued as well pleading and raising the questions (i) whether the appellant was on deputation for prescribed period or not?
(ii) whether the appellant was abruptly relieved from his deputation in Governor House or not? (iii)
Whether the appellant had ever been appointed or absorbed at any civilian post by borrowing department (Govt. Of Sindh) or not? (iv) Whether the borrowing or lending (parent department) departments had ever made any correspondence to repatriate/ revert the appellant to his parent department from 1991 (date of deputation) to 2003 (date of relieving from deputation i,e, Governor House) in compliance of Sections 27(iv)(v), 28(1)(2)(3)(4) reference pg 375 of Esta Code 2000) or not? (v) Whether the appellant after forcibly relieving from Governor House without any letter in 2003 till 2007 had been approaching to his parent department or not? (vi) whether the order dated 12.10.2011 passed by the Honourable High Court has ever been challenged by Respondent No, 1 or not? (vii) whether the impugned order dated 05.05.2010 had been passed without deciding the issues of the appellant in accordance with law or not? (viii) whether the period of deputation of appellant from 19.12.1990 to 08.03.2003 can be treated on duty in Pakistan Rangers or not? (ix) whether the appellant had passed final cadre course examination for his next promotion or not or the said course was the last course for any further promotion or not? (x) whether the Respondent # 1 had violated the Rule-16(4) of Pakistan Rangers Recruitment Rules, 1968 by not maintaining the seniority of appellant. From 1991 till 2003 and whether the appellant is entitled for grant of promotion to the rank of Senior Superintendent Rangers (BPS-19) or not?
10. On the other hand, learned counsel for the respondents has argued that the appeal filed by the appellant is hopelessly time barred and liable to be dismissed as impugned order was dated 05.05.2011, departmental appeal was filed by the appellant on 18.05.2011 and the instant appeal was presented on 18.11.2011, whereas, period of 90 days had expired on 28.08.2011; hence this appeal is barred by 21/2 months. Learned counsel relied on 2014 AC (Appeal cases) 426. He has further argued that the appellant is claiming promotion after retirement from service from back date which is not permissible and relied on 2006 SCMR 1456. Learned counsel contended that promotion cannot be claimed as a matter of right by placing reliance on 2001 SCMR 1446, 2002 SCMR 1056, PLD 2003 SC 110, 2012 CLJ 291 and 2013 PSC 147.
11. The moot question in the ids at hand is that the same is time barred because as is apparent from the office note according to which the impugned order is dated 05.05.2011, departmental appeal against which was preferred on 28.05.2011 and instant appeal before this Tribunal was filed on 18.11.2011. He ought to have approached the Tribunal within 120 days after preferring the departmental appeal/ representation, but instead of doing so, he approached this Tribunal on 18.11.2011 through the instant appeal, which also appears to be hopelessly time barred. An application for condonation of delay has been filed. In the said application for condonation of delay, the ground was that he was pursuing the matter diligently before other forums. In this context it is to be mentioned here that litigation before A incompetent forum would not justify condonation of delay even if it was due to wrong advice of counsel. We rely on 2001 PLC (CS) 212 where it was held that: "---S.5--Delay, condonation of--Mistake of a counsel in approaching a wrong forum on account of carelessness, negligence and without due diligence and caution, could not be a good ground for condonation of delay."
' In the reported case, reference was made to PLD 1983 SC 385, 1984 SCMR 890, 1985 SCMR 333, 1975 SCMR 259 and 1991 SCMR 1841. Further in the reported case, it was held that: "--S.5--Delay, codonation of--Each day's delay was to be adequately and reasonably explained to seek indulgence of Court/ Tribunal vis-a-vis condonation of delay."
' Reference was made to PLD 1988 SC 144, 1993 SCMR 17, 1995 SCMR 396, 1998 SCMR 307, 1998 SCMR 785 and 1999 SCMR 784.
12. In this context, we may also rely upon a judgment of Hon'ble Supreme Court reported in 2011 PLC
(CS) 671 where it was held that: "...----Held, it was condition precedent that civil servant had to file departmental appeal/representation before the Departmental Authority; and thereafter availing 90 days, appeal was to be filed before the Service Tribunal within one month--...."
13. Further in a case reported in 2011 SCMR 676, by relying on 1987 SCMR 92, it was held by the Hon'ble Supreme Court of Pakistan that: "....Appeal, if required to be dismissed for being time-barred, then its merits need not to be discussed..."
14. It has also been held by the Hon'ble Supreme Court in a case reported in 2010 SCMR 1982 that, ".... No plausible justification could be furnished by civil servant for the delay, except that question of limitation was nothing more but a technicality which was an incorrect approach-Question of limitation could not be taken lightly as in service matters such question should be considered seriously and applied strictly...."
' In another case reported in 2007 SCMR 1560, it has been held that, Object of limitation was to help vigilant and not indolent
15. We do not find any cogent/ reasonable and plausible ground to condone the delay in filing the instant appeal; hence, the same is hereby dismissed with no order as to costs.
16. Parties be informed accordingly.