Qazi Khalid Ali, Chairman .--We intend to dispose of the titled appeals through this single judgment as common question of law is involved therein and similar prayer has been made which reads: "To hold and declare that the appellant is/was entitle for proforma promotion against the post of Assistant Audit Officer (BS-16/17) w.e.f 2008 to 2009 before retirement as such promotion was withheld by the department and the appellant is entitled for proforma promoti on to the post of AAO (B S-17) as per FR-17 and also as per Manual of Standing Order issued by the Respondent No. 2 on 14.12.1992 vide letter 24.07.1973 against 33% post of departmental quota, issued by the Audit or General of Pakistan Islamabad and so also as per SRO issued on 22.01.2000 forwarded by letter dated 28.06.2000 as the appellant had been serving as Assistant Audit Officer w.e.f.
22.03.2005 to 06.12.2010 current charge basis and finally had retired from service w .e.f 7.12.2010."
Appeal No. 36(K)CS/2019
2. Facts of the case are that the appellant (Islamuddin) joined the service as UDC on 15.07.1974; promoted as Audit and Accounts Assistant in Grade-1 1 on 05.04.1983; granted Selection Grade (BS-13) on 20.12.1983 and while serving as Senior Auditor was granted current charge to the post of Assistant Audit Officer (BS-16) on 22.03.2005 which position he held till his superannuation i.e. 07.12.2010. The appellant filed a representation on 06.12.2018 praying for proforma promotion which was rejected vide letter 07.01.2019/06.02.2019.
Appeal No. 37(K)(CS)/2019
3. Facts of the case are that the appellant (Syed Sarfaraz Ali) joined the service in National Manpower Council as LDC on 14.03.1973; promoted as UDC on 03.01.1976. Later he joined the AGPR on mutual transfer where he was promoted as Audit and Accounts Assistant while Working as Senior Auditor (BS-15) was retired from service with effect from 01.01.2009 on attaining the age of superannuation. The appellant filed a representation on 06.12.2018 praying for proforma promotion which was rejected vide letter 07.01.2019/06.02.2019.
Appeal No. 38(K)(CS)/2019
4. Facts of the case are that the appellant (Intizar Hussain) joined the service as LDC (BS-S) on 10-02.1965; promoted as UDC (BS-7) in 1969; granted Selection Grade in 19J7 and promoted as Senior Auditor , was granted current charge to the post of Assistant Audit Officer (BS-16) with effect from 25.11.1998 which position he held till his superannuation i.e. 01.07.2005. The appellant filed a representation on 06.12.2018 praying for proforma promotion which was rejected vide letter 07.01.2019/06.02.2019.
Appeal No. 36(K)CS/2018 is taken as the lead appeal.
5. The learned counsel for the appellant contended that the appellant, while serving as Assistant Audit Officer (BS- 16), on attaining the age of superannuation, retired from service with effect from 07.12.2010. He submitted that the post of Assistant Audit Officer was laying vacant since 2005 against which the appellant was given current charge appointment but he was not promoted on regular basis till his superannuation as no DPC was called to fill the vacancy of 33% quota without any reasonable and plausible cause being no fault on the part of the appellant, which squarely fall within the orbit of FR-17. He submitted that the appellant filed a representation on 06.12.2018 which was rejected vide letter dated 07.01.2019/06.02.2019, hence he filed this appeal. He also submitted that the appellant was given current/acting charge being senior most in the cadre as per rules, therefore, he is entitled for proforma promotion after retirement. In support, the learned counsel placed reliance on the judgment dated 07.10.2019 in Appeals No. 24 & 25(K)CS/2014 whereby the Tribunal accepted the appeals of retired Railway employees directing to place their cases before FR-17 Committee for promotion with calculation of pensionary benefits. With regard to limitation, he submitted that the appeal is within time from the date of rejection order dated 07.01.2019/06.02.2019 and further that in matters relating to denial of financial benefits is continuing cause, thus no limitation runs.
6. The respondent-department resisted the appeal. In their written objections, it was stated that the appellant had never fulfilled the criteria for promotion i.e. passing of SAS Exam (Subordinate Accounts Services) or. AATI Exam (Audit & Accounts Training Institute) as per SRO dated 12.09.2008 and 22.01.2000 , as such, the appellant had not claimed promotion during the period he remained on current charge basis, held by him for last about six years before his superannuation. It was also mention that current charge appointment does not mean that the civil servant met the criteria for promotion. With regard to SRO dated: 3.10.2012 it was stated that having no retrospective effect is not applicable in the case of the appellant who retired in the year 2010. The learned AAG while relying on the written comments submitted that the appellant had not agitated the matter from. 2005 till his retirement and after about 8 years of his retirement filed a representation and its mere rejection does not mean that the limitation has been condoned. He relied on the written objections filed on behalf of the department.
7. We will first take up the issue of limitat ion raised on behalf of the respondents. It is an admitted position that the appellant retired from service with effect from 07.12.2010, whereas ,he filed repres entation for proforma promotion on 06.12.2018 after eight years of his retirement against 33% quota in Pakistan Audit Department. During the service, the appellant had not made any effort nor cry over the non-grant of prom otion under 33% quota. He, for the first time, made a representation on 06.12.2018, exactly after eight years of his retirement whereas he was required to challenge the same within 30 days from 22.01.2000, if he was so aggrieved but he remained silent over the matter during his service. The contention of the learned counsel for the appellant that in matters relating to denial of financial benefits is continuing cause, thus no limitation runs, is of no avail. Quite recently , in a case where an employee of Pakistan Railway claime d financial relief on the basis of judgment of the Tribunal, which was upheld by the Hon'ble" Supreme Court of Pakistan vide order dated 12.11.2019 passed in Civil Appeals No. 167 and 168/2019, wherein it was held: "The Respondent-Muhammad Yousaf filed a departmental appeal belatedly in the year 2012 based' on grounds of similarity with a judgment of the learned Federal Service Tribunal, ("FST") dated 22.08.201 1 delivered in a different case. It transpires that the said judgment is passed in implementation proceeding s of an earlier judgment of FST dated 25.1 1.2000. Consequently , the departmental appeal filed by him was grossly time barred."
The other contention of the learned counsel that the appeal is within time from the date of rejection order dated 07.01,2019/06.02.2019 is also misconceived. It is well settled proposition that when the departmental appeal is time barred, the appeal before the Tribunal is incompetent and not maintainable. In the case law reported as Anwarul Haq v. Federation of Pakistan through Secretary , Establishment Division, Islamabad and 13 others (1995 SCMR 1505 ) the Hon'ble Supreme Court of Pakistan had held that the Tribunal was, therefore, right in holding that after a lapse of 18 years the relief sought by the petitioner for correction of the seniority list was time- barred. Similar view has also been taken in the cases reported in 1998 PLC (CS) 800, 2001 SCMR 17, PLD 2002 SCX 101, 2004 SCMR 426, 2011 SCMR 698 and 2012 SCMR 195, thus in this view of the matter , we are of the firm opinion that the representation before the departmental authority was time barred, as such, the appeal before the Tribunal is incompetent and not maintainable. Even no application for condonation of delay has been filed.
8. With regard to merits of the case, the contention of the appellant is that he was entitled to promotion to the post of Assistant Audit Officer (BS-17) agains t 33% quota issued by the Auditor General of Pakistan vide SRO dated 22.01.2000 is not tenable as it was applic able to SAS qualified or passing of AATI Exam, which the appellant never did and there was no exemption quota in the SRO. We find force in the contention of the respondent-department that the meetings of Departmental Promo tion Committee were regularly held and cases of those eligible officials were being sent for consideration and since the appellant had not fulfilled the criteria laid down in the SRO i.e. qualifying the departmental examination, therefore, his case was not referred, as such, sending his case to FR-17 Committee does not arise as neither was he eligible nor qualified to be promoted.
9. The case law relied upon by the learned counsel for the appellant is distinguishable in the peculiar circumstances of the case.
10. For the reasons mentioned above, the appeal being incompetent; not maintain able, and bereft of any merit is hereby dismissed.
11. The judgment, mutatis mutandis , shall apply to the titled appeals.
12. No order as to costs. Parties may be informed.