MALIK ZAWWA.R HUSSAIN (MEMBER).-Sh. Muhammad Ashraf, Assistant Food Controller, Jhang has filed this appeal under section 4 of the Punjab Service Tribunals Act of 1974 against the order 20th May, 1980 passed by the Director Food, Government of the Punjab, whereby a copy of Government letter No. SOF-VI (109-Genl) 70, dated 29th April, 1980 was endorsed to him whereby the appellant was informed that his request for War Service Benefits was ignored by the Finance Department.
2. By virtue of this appeal the appellant has prayed that the impugned order dated 29th April, 1980 passed by the Government and endorsed to him on 20th May, 1980 be set aside and he be given benefit of war service towards seniority which was originally granted to him by the Deputy Director Food, vide its order dated 10th December, 1975.
3. Brief facts of the case are that the appellant rendered war service from 17th April, 1944 to 26th January, 1947 and after his discharge from the Army, h; joined the Food Department as Junior Clerk at Jhang. It may however, be useful to mention here that out of the period of war service mentioned above in his service rendered from 26th October, 1944 (the date when he attained the age of 18 years) to 31st March, 1947 could be treated as war service. The appellant was appoin--ted Food Grain Inspector on 16th June, 1949 when he was allowed to change his cadre from clerical to executive line. He worked as Food Grain Inspector from 16th June, 1949 to 31st May, 1950 and due to general retrenchment in Food Department he was reverted as an Accoun--tant/Senior Clerk on 31st May, 1950 and then was re-appointed as Inspector on 29th September, 1951. He was appointed as Assistant Food Controller on 17th May, 1973. The appellant has asserted that he had been throughout requesting the respondents to account his war service and ultimately the Deputy Director Food passed an order on 10th December, 1975 whereby he was granted benefit of seniority on account of war service rendered between 26th October, 1944 to 31st March, 1946 in accordance with the provision of Punjab Government Servant (War) Amendment Rules, 1943 read with Punjab Government War Amendment Rules Appeal Order, 1963 and subsequent instructions issued in this behalf. The Deputy Director, Food made necessary entries in the Service Book and sent the same to Accountant General, Punjab, Lahore. The Accountant-General, Punjab, Lahore raised certain objec- -tions and referred the case back to the Deputy Director, Food and ultimately the case was referred to the Government which passed the impugned order dated 29th April, 1980 conveyed to the appellant by the Deputy Director Food, Sargodha Region, Sargodha vide endst : dated 20th May, 1980. It seems that the appellant was not satisfied with the order of the Government and he submitted an appeal to Director Food, Government of the Punjab on 16th June, 1980 which was followed by three grievance Notices dated 26th January, 1981, 27th January, 1981 and 7th March, 1981. He has been making repeated representation to the Departmental Authorities for the decision of the case but without any result. Hence he filed this present appeal on 16th May, 1981 against the order dated 20th May, 1980.
4. We have heard the learned counsel for the appellant as well as the learned District Attorney on behalf of the respondents. It has been argued on behalf of the appellant that the competent authority i.e., Deputy Director, Food had duly sanctioned the grant of war service benefits to the appellant vide his order dated 10th December, 1975 which was issued/ implemented and acted upon and no locus poenitentiae was left with the department to revoke the said order by passing the impugned order. He has also submitted that the plea of the Finance Department! Accountant - General Punjab, Lahore that the benefit of war service cannot be allowed on subsequent appointment is hardly justified and is illegal. He has also submitted that his case was at par with the case of Chanan Masih whose appeal No. 55/368 of 1976 was accepted by this Tribunal vide judgment dated 11th October, 1979. He has submitted that the impugned order be set aside and the appellant be declared entitled to the war service benefits towards seniority as Assistant Food Controller with effect from 28th March, 1952. On the other hand the learned district Attorney has controverted the arguments of the learned counsel for the appellant and has submitted that according to the rule 3 of War Service Amendment Rules, the concession of war service benefit is admis--sible once only to a civil servant in the first appointment after his discharge from military service. He has also submitted that the appeal of the appellant is barred by time because according to him the impugned order was passed on 20th May, 1980 which was a final order within the meaning of section 4 of the Punjab Service Tribunals Act and no further represen-- tation/grievance notices were competent against it. He has argued the point of limitation on other angle by submitting that even if it be presumed only for the sake of arguments that .The representations against the order dated 20th May, 1980 were permissible, even then the appeal is barred by time. The appellant could come to the Tribunal within 30 days after the expiry of 90 days of his filing a representation dated 14th June, 1980 Annexure at page 59 of the appeal. He has concluded that the present appeal having been filed on 16th May, 1981 is barred by time from all angles. Regarding the principle of locus poeniter4tiae the learned District Attorney has submitted that the Deputy Director Food was not competent to allow the benefits of war service to the appellant on his second appointment, and the said order was never acted upon due to the departmental objections raised by the Accountant General, Punjab, Lahore. As such the Government was fully competent to recall and revoke the earlier order.
5. We have given our anxious thoughts to the arguments of the parties and have also perused the record of the case very carefully with their assistance. Since the legal objections regarding limitation has been raised by the learned District Attorney so we have proposed to den with it first.
The perusal of the file shows that the impugned order was passed on 29th April, 1980, by the Government which was endorsed to the appellant on 20th May, 1980. There is no provision in the rules for filing an appeal to the authorities for the grant of war service benefits but the right of representation has been accepted and has been conferred by section 21 of the Civil Servants Act where there is no provision for appeal etc. In the present case on the representation of the appellant, the impugned order dated 29th April, 1980, was passed by the Government which was a final order within the mischief of section 4 of the Punjab Service Tribunals Act and no further represen--tation or grievance notice was competed against it. We may observe here that the civil service laws do not provide for serving any grievance notice to the Departmental Authorities, which concept is only known to the labour laws. Even if we give full latitude to the appellant by considering these notices as competent, even then the appeal would be barred by time, in view of the judgment of the Supreme Court of Pakis--tan reported as 1980 SCMR 260 and 1982 SCMR 562 because the appellant was supposed to approach this Tribunal within 30 days after the expiry of 90 days of the date of his filing the representation of 14th June, 1982, which is available at page 59 of his appeal. The appeal having been filed on 16th April, 1981, is certainly out of tine so we hold that the appeal is barred by time and is liable to be dismissed on this score alone.
6. So far as the arguments of the learned counsel for the appellant that the order dated 10th December, 1975, passed by the Deputy Director Food Lahore had been acted upon and implemented is concerned, we may observe that there is no force in this argument. After passing this order by the Deputy Director Food, it was to be implemented by the Accountant-General, Punjab, which was not done and he returned the service book of the appellant with his objections which are available at page 45 of his appeal, as such the Government was fully competent to recall and revoke the order dated 10th December, 1975, So far as the merits are concerned we have perused the record. The Accountant General, Punjab, Lahore while returning the service book had remarked that the appellant was appointed as junior Clerk on 18th May, 1947, but he has been allowed benefit of war service as food Grain Inspector, when promoted were. f. 24th April, 1950, which was violative of instructions contained in Finance Department circular letter No. 585- F/3749/B, dated 28th March, 1949, read with U. O. No. 1076-F-(5)49, dated 5tb May, 1949, it was also observed by the Accountant Gene--r.1 that the concession to which the appellant was eligible was admissible once in the first appointment to a civil post after having been discharged from the military service. However, if for any reason, the appellant had been unable to avail the concession in his first appointment as a junior clerk, he could have been allowed this concession on his subsequent appointment with the prior concurrence of the Finance Department. Since concurrence of Finance Department for grant of war service benefits on the second appointment on 24th April, 1950, was not obtained, so the case was sent back with the observations to obtain the said concurrence and also to seek the sanction for creation of supernumerary post for the grant of arrears as Assistant Food Controller. We have gone through the instruc--tions referred to in the Accountant General letter dated 16th June, 1978, and the War Service Amendments Rules. 'The relevant portion of instruc--tions contained in Finance Department letter No. 585-F-(F) dated 28th.
March, 1949 read with U. O. No, 1078-F (5;49, dated 5th May, 1979, is reproduced hereunder for the sake of convenience :- " The concession to which ex-servicemen are eligible is admissible once only in the first appointment to a civil post, after discharge from military service. However if for any reason an ex- serviceman has been unable to avail of the concessions in his first appointment to a civil post after discharge from military service, e.g. Because- "(i) the pay of the post was not on an incremental scale, or
(ii) the post was not pensionable, or (i.e) the post did not belong to a regular cadre he may be allowed these concessions in his second or a subsequent appointment with the prior concurrence of the Finance Department. The conces-- sions, may however, be availed of only on one occasion and once availed of no change can afterward be made.
(iv) The decision conveyed in its unofficial reference No. 585-F(2)49, dated the 25th March, 1949, read with unofficial reference No. 1076-F(S)-49, dated the 5th May, 1949, should apply only in the case of posts and the scales they carry, which are quite new and do not correspond with similar posts existing in any other office or Department under the Government, before the 1st November, 1945.
7. From the perusal of the above we find that although the appel--lant was appointed as Junior Clerk which was his first appointment, he opted to his appointment as Food Grain Inspector in the hope of better prospects of service but which was a different cadre. We also find that four conditions reproduced above are lacking in the case of the appellant because a post of junior clerk was on incremental basis and was a pensionable and was included in the regular cadre. Thus the benefits of war service could not be allowed to the appellant on .His second appoint--ment as Food Grain Inspector. Thus we hold that the impugned order dated 20th May, 1980, has been competently passed by the respondents in accordance with the rules and no exception can be taken against it.