' ZAFPAR HUSSAIN MIRZA, J. -This appeal is directed against the judgment and decree, dated 12th February, 1973 passed by the learned III Additional District Judge, Karachi on the original side decreeing the suit of respondent No, 1 Shaukat Ali Khan.
' Briefly the facts forming the background of this case are that respondent No, 1 was appointed as Inspector in Central Excise and Land Customs on 31st March, 1950. It seems that in the past the promotion from the post of Inspector to the next higher post of Deputy Superintendent, Central Excise and Land Customs used to be made on the basis of 'seniority-cumfitness' on the recommendation of the Departmental Promotion Committee, but Vide the Central Board of Revenue letter No, 35 (7-EST/56), dated 3rd December, 1956 and No, Ex-1 (DT/57), dated 21st February, 1957 a departure was made from the prior practice and it was provided that promotions to the post of Deputy Superintendent would henceforth be made by selection on merits solely (sic) for mandatory injunction directing the Government of Pakistan and Collector, Central Excise and Land Customs to appoint him as Deputy Suprintendent in terms of the declaration sought by him.
The case of respondent No, 1 was that the promotion to the post of Deputy Superintendent, upon the abolition of the pre-existing arrangement, was based solely upon the result of the qualifying Examination and, therefore, the Departmental Promotion Committee besides being abolished expressly by competent authority, was not empowered in law to reject him for promotion.
3. The appellants and the respondents Nos, 2 to 4 resisted the suit of respondent No, I. It was contended by them that the Departmental Promotion Committee was not abolished and continued to function, but the only change brought about in the procedure for promotion was that only Inspectors who qualified in the Departmental Examination were eligible for consideration, which included the consideration of the service record seniority and fitness. The bar of limitation was also pleaded by the aforesaid respondents.
4. The learned trial Court after hearing the evidence of the parties reached the finding that consequent to the introduction of the Qualifying Examination, the Departmental Promotion Committee was abolished and under the new arrangement the sole criterion for promotion was the result of the Qualifying Examination. He also found the issue of limitation in favour of respondent No, 1 and held the suit to be within time. On the basis of these findings the learned trial Court decreed the suit of respondent No, 1 by the impugned judgment.
5. Mr. A. A. Fazeel learned counsel appearing on the basis of the results of competitive examination held by the Department which was open to all the Inspectors (sic). In the year 1958 respondent No, 1 appeared in the Departmental Qualifying Examination and passed therein. However, the respondent was denied promotion to the post of Deputy Superintendent on the basis of the result of the examination. According to the said respondent, the Departmental Promotion Committee was legally abolished in the beginning of 1957, but in spite of that he was ordered to appear before the Departmental Promotion Committee on 22nd August, 1959 and was rejected for promotion. The present appellants and respondent No, 4 were also serving as Inspectors who were, however, promoted to the post of Deputy Superintendent although some of them did not pass the Qualifying Examination and others passed the same after respondent No,
1. In November, 1968, respondent No, 1 was issued a promotion order, which was subsequently cancelled. The said respondent made representations to the concerned authorities against the illegal refusal of promotion to him to the higher post of Deputy Superintendent but no redress was given to him. Eventually, after serving notice under section 80, C.P.C., the respondent brought Suit No, 266 of 1969 (out of which the present appeal arises), for declaration that he was entitled to be appointed as Deputy Superintendent, Central Excise and Land Customs, Class II on the passing of Qualifying Examination in 1958 against the first available vacancy and that he was entitled to fixation of seniority as against the appellants and respondent No, 4, as well as to further promotion to the post of Superintendent and for respondent No, 1, raised a preliminary objection that the present appeal has abated in view of the provisions of section 6 of the Service Tribunals Act, 1973 which came into force on 29th October, 1973. The present appeal was filed in this Court on 26th March, 1973 and was pending decision when the aforesaid enactment came into force. Under the said enactment Service Tribunals were constituted having exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants including disciplinary matters. Section 4 of the aforesaid Act provided for a right of appeal to any civil servant aggrieved by any final order made by a Departmental Authority in respect of any of the terms and conditions of his service and the period of limitation prescribed, therefor, was 30 days from the communication of such order to him.
Section 6 of the aforesaid Act which is relevant for the present purpose may be set out below "All suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court, immediately before the commencement of this Act shall abate forthwith : ' Provided that any party to such a suit, appeal or application may within 90 days of the establishment of the appropriate Tribunal, prefer an appeal to it in respect of any such matter which is in issue in such suit, appeal or application."
' On the strength of the aforesaid provisions, learned counsel contended that the present appeal relating as it does to the matters within the jurisdiction of a Tribunal (terms and conditions of service), it automatically abated by operation of law on the establishment of the appropriate Tribunal. Mr. Manzoor Ali Khan, learned counsel appearing for the appellants, on the other hand, referred me to clause (b) of the proviso to section 4 (I) of the Act which lays down that no appeal shall lie to a Tribunal against an order or decision of a Departmental Authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade. He argued that the impugned order in this case as passed by the Departmental Promotion Committee on 22nd August, 1959 holding that respondent No, 1 was not fit to be promoted to the higher grade. This contention is devoid of force, as rightly argued by Mr. Fazeel, because the question in this case is not whether the order of the Departmental Promotion Committee was erroneous or unjustified on merits as to the fitness of respondent No, 1, to be promoted (which question would obviously be solely within the discretion of the competent authority not subject to agitation by appeal), but the question was whether any authority could refuse promotion to respondent No, 1 in view of the relevant rules having the force of law that the passing of the Qualifying Examination was ipso facto sufficient to entitle the successful candidate to promotion to the higher grade. Clearly, therefore, clause (b) relied upon by the learned counsel for the appellants was not attracted in the present case.' However, clause (c) of the same section and subsection is a complete answer to the contention of Mr. Fazeel. This clause provides that no appeal shall lie to a Tribunal against an order to decision of a Departmental Authority made at any time before 1st July, 1969. The impugned order in this case as already mentioned was passed on 22nd August, 1959 long before the terminal date of 1st July, 1969 and clearly, therefore an appeal before the Tribunal was not competent against the said order. Section 6 of the said Act predicates the provisions for abatement of proceedings pending in a Court of Law to the requirement that only such proceedings which relate to a "matter within the jurisdiction of a Tribunal" shall abate and since the present appeal relates to an order passed before 1st July, 1969, clearly. It did not relate to a matter within the jurisdiction of a Tribunal. Mr. Fazeel, however, sought to contend that clause (c) referred to above was inserted in section 4 (I) by Act XXXI of 1974 and, therefore, prior to the amendment of this subsection, the embargo on right of appeal in respect of orders passed before 1st July, 1969 was not operative. Therefore, until the promulgation of Act XXXI of 1974 all appeals and other proceedings relating to any order of a Departmental Authority in respect of terms and conditions of service, irrespective of the date of such order abated. I find no force in this submission. It will be appreciated that the provision was made in order to exclude from the operation of the Service Tribunal Act cases relating to orders passed before 1st July, 1969. Such being the intention of the law the provision would be rendered nugatory if the interpretation placed on the provision by the learned counsel is accepted. All pendin proceedings in the Courts would have abated before the coming into force of the amendment. But such could not have been the intention under the amendment. In Faizullah Khan v. Government of Pakistan their Lordships of the Supreme Court interpreted the amendment to exclude the provisions regarding abatement in respect of pending cases - against orders passed by Departmental Authority prior to July, 1969. In any event, if this appeal had abated as contended by Mr. Fazeel, upon the introduction of the amendment taking away the jurisdiction of the Tribunal in respect of the orders passed prior to July, 1969, the appeal would have had to be restored for decision according to law by this Court, for, no party could be left without a remedy when clearly such was not the intention of the law. The preliminary objection is, therefore, not sustainable and is accordingly rejected.
6. Coming now to the merits of the case, the first point urged on behalf of the appellants was that the suit of respondent No, 1 was time-barred, There is no dispute that being a suit for declaration and consequential relief it was governed by the residuary Article 120 of the Limitation Act for which a period of six years is prescribed commencing from the date the right to sue accrues. The suit was filed on 17th February, 1969 and according to the learned counsel for the appellants the right to sue accrued to respondent No, 1 in 1958 when he passed the qualifying Examination which according to him conferred upon him the right to be promoted. But in any case, admittedly the departmental Promotion Committee rejected respondent No, I for promotion on 22nd August, 1959. Accordingly, it was contended that the six years period of limitation would be computed with reference to the said date and would expire on or about 22nd August, 1966, whereas the suit was filed afterwards in 1969.1 On behalf of the respondent No, 1, on the other hand, the contention was reiterated that respondent No, 1 made representations to the Authorities after the denial of his right to promotion and ultimately, submitted a review application to the Central Board of Revenue, Government of Pakistan, which was dismissed on 8th June, 1968. It was accordingly submitted that the right to sue accrued on the last mentioned date when the Authorities finally rejected the claims of respondent No,
1. Additionally, learned counsel argued that successive denials of the said respondent's right by the concerned Authorities gave him a fresh cause of action each time his right was denied. In support of these submissions, learned counsel relied upon Annasami v. Adivarachari , Appa Rao v.
Secretary of State and E. A. Khan v. Government of Pakistan . Before considering the' question of law. I might briefly refer to the evidence on record on this point. The plaint does not refer to the details of representations said to have been made by the respondent except notice under section 80, C.P.C., dated 15th August, 1968. In para. 16 of the plaint it was averred by respondent No, 1 that the cause of action accrued to him "finally on 8th June, 1968, when his review application, being one of the series of Departmental representations which the plaintiff has been pursuing was rejected by defendant No, 1 on or about 20th October, 1968 when the statutory period of the notice under section 80, C.P.C. Expired." In his deposition respondent No, 1 stated in the examination-in- chief that be made several representations and a review petition. But he produced only the copy of the review petition, dated 17th February, 1968 (Exh. 32) and the order rejecting the same, dated 23rd July, 1968 (Exh. 33). In reply to questions in the cross-examination, respondent No, 1 stated that he had made a representation which was rejected by order, dated 30th August, 1960. This refers to a document on record at page 57 of the Paper Book which is the letter, dated 30th August, 1960, from the Ministry of Finance, Karachi, addressed to the Deputy Collector, Karachi, wherein it is mentioned that the representation of respondent No, 1 alongwith other officers had been considered and rejected. There is, therefore, no indication from the record as to whether after the first representation of respondent No, 1 was rejected in 1960 he made further representations successfully until he finally submitted the review petition in 1968. In the light of the aforesaid evidence on record I shall now consider the argument of respondent No, 1 and the cases relied upon by him.
7. The first case cited by the learned counsel AIR 1941 Mad. 81 related to a hereditary religious office connected with a temple. The plaintiff was holding this office and enjoying its emoluments. There was interference with the performance of his duties at one stage but the plaintiff refrained from bringing any action. However, on a subsequent interference after the lapse of more than six years the plaintiff brought a suit in the Court for an injunction. It was contended that under Article 120 of the Limitation Act, the suit was barred as the right to sue accrued to the plaintiff when the first interference occurred. Repelling the contention the learned Judges of the Madras High Court held that the Article could only apply if the plaintiff was bound to take action when the first interference was made with his rights, but he was bound to take action then if it did not suit him and so he could abide his time. The interference which took place at the bands of the defendants did not affect the plaintiff's position as the lawful holder of the officer and, therefore, if the interference was repeated on another occasion it would only give rise to another cause of action. It will be appreciated that; the facts of the reported case are quite distinguishable inasmuch as the plaintiff in that case was in the enjoyment of the religious office which was not affected by the acts of interference relied upon. In such circumstances, obviously each successive interference with the rights of holder of office would furnish a fresh cause of action. The position in the present case is, however, entirely different. The plaintiff (respondent No, 1) in this case was aggrieved by the refusal of the Authorities to give him the next higher post and, therefore, upon the final refusal the cause of action to bring the suit had definitely accrued to him in 1960 at the latest. The next case AIR 1938 Mad. 193 cited by the counsel also is distinguishable on facts. That case related to a declaratory suit as to title of the2 3 4 plaintiff to immovable property. It was observed : "There is nothing in law which says that the moment a person's right is denied, he is bound at his peril to bring a suit for declaration. It would be most unreasonable to hold that a bare repudiation of the persons's title, without even an overt act, would make it incumbent upon him to bring a declaratory suit". These considerations are peculiar to cases where the plaintiff is already in the enjoyment of the disputed right and the action is brought to prevent interference in the enjoyment of such right. The principles laid down in this decision are, therefore, not attracted in the facts of the present case. In the last case cited at the bar PLD 1964 SC 520, the appellant was an Inspector in the Land Customs Department and was dismissed from service on charges of misconduct by the order of the Collector of Land Customs on 16th August, 1950. He filed an appeal against the order of the Collector before the Central Board of Revenue (who had jurisdiction to hear the appeal) and the appeal was dismissed on 7th May, 1952.
On 25th June. 1958 the appellant filed suit for a declaration that order of his dismissal was void and inoperative and that he continued to hold the post of an Inspector. The Pakistan Government defending the suit raised objection that the suit was barred under Article 12G of the Limitation Act computing the six years' period from the date of the original order of dismissal. Their Lord-ships held that the right to sue accrued only when the Appellate Authority finally dismissed the appeal in 1952. It was observed that an order really becomes an order when the appeals to which it is subject are exhausted. Even this decision does not advance the case of respondent No,
1. In view of the fact that his representation to the Appellate Authority was admittedly dismissed in 1960. If the six years' period is computed from that date the suit had become barred by limitation by the year 1966.
However, reliance was placed upon the review petition submitted by the respondent in 1968. It was argued on behalf of the appellants that this review petition itself was barred by limitation and, therefore, cannot be availed of by respondent No, 1 to support his claim to a fresh period of limitation from the date of decision on the review petition. The case of E. A. Khan referred to above is no authority for the proposition that an order of a Departmental Authority would assume finality only when the remedy of review is also exhausted. It has not been shown to me as to whether the remedy of review is a statutory remedy provided under the law. Be that as it may, review normally is not a remedy by way of right and, therefore, in my opinion, the order of a Departmental Authority concerning service rights of a civil servant would assume finality on the passing of orders on an appeal filed by an aggrieved party. At any rate, no law can conceivably leave an order of the Appellate Departmental Authority open to review for an indefinite period so as to deprive the order of finality indefinitely. To hold that such an order would assume finality only when the aggrieved party chooses to prefer a review petition at his choice irrespective of the length of time elapsing in between, would set at naught the effectiveness of the law of limitation. In the present case, as shown above, the representation of respondent No, 1 was finally dismissed in 1960 and he remained quiet until 1968. Can it be said that the order refusal to promote the respondent continued to remain tentative in character throughout the period of 8 years until he chose to invoke the remedy of review ?
8. The argument that each successive denial of the alleged right of respondent No, 1 gives him a fresh cause of action seems to be based on section 23 of the Limitation Act which, inter alia provides that in case of a continuing wrong, a fresh period of limitation begins to run at every moment of the time during which the wrong continues. H. C. Mitra on the Indian Limitation Act (13th Edition) at page 26 observes ; "In considering whether the particular act complained of constitutes a continuing wrong within the meaning of this section (section 23) for which the cause of action arises de die in diem, it is necessary to keep in mind the distinction between an "injury" and the "effect of that injury". Where the injury complained of is complete on a certain date there is no "continuing wrong" even though the damage caused by the injury may continue. In such a case the cause of action to the person injured arises once and for all, at the time when the injury is inflicted and the fact that the effects of the injury are felt by the aggrieved party on subsequent occasions intermittently or even continuously does not make the injury a "continuing wrong'' so as to give him a fresh cause of action on each such occasion. If, however, the act is such that the injury itself is continuous, then there is a "continuing wrong" and the case is governed by this section. To give rise to a continuing wrong there must not be a single wrongful act from which injurious consequences follow but there must be a state of affairs every moment's continuance of which is a new tort."
Thus it is clear that the rejection of the plaintiff as fit person to be promoted was by itself an act which was complete, although its effect was that the respondent was deprived of his alleged right to promotion thereafter. Even if his representations were rejected from time to time, they did not change the character of the wrong done to him and convert the same to a continuing wrong. The effect of the dismissal of his representations or review petition was only to affirm the original order of the Departmental Promotion Committee refusing to promote him. There is, therefore, no force in this submission that a fresh cause of action accrued to the respondent each time his representation was dismissed.
9. I might here refer to another aspect of this case which seems to have escaped the attention of the learned Additional District Judge. It is on the record that the plaintiff was claiming his right to promotion on the basis of the examination held in 1957. The matter came before the Court after more than a decade had elapsed during which time 12 officers seem to have been promoted, whom the respondent impleaded as defendants in the suit and claimed seniority over them. The Supreme Court has deprecated the practice of .Agitating questions of seniority before Courts of law as it is prone to cause serious upset in the arrangements made in the intervening period and tends to dislocate officers from the positions assigned to them for considerable time. Thus, in Wasi Ahmad v. Pakistan although their Lordships found on the merits in favour of the appellant, they declined to give him relief on consideration of the delay on his part to bring the matter for adjudication promptly. It was observed as under.
"The last representation that he apparently made to Government was on 31st July, 1961. Why he went on making representations till' then, against orders passed in 1955 and 1957, is not quite clear from the papers on the record. The dates of his representations, if any, are also not known. There was a good deal of unexplained delay in approaching the High Court in this case on the part of the appellant. The High Court could have, therefore, taken note of this fact and based its refusal to grant relief on this ground alone. This aspect was not noticed in the High Court whose judgment proceeds on other grounds. It is evident that to interfere in 1967, with the Government orders passed in 1955 and 1957, will certainly cause a serious upset in arrangements made in the intervening long period of time and create a disturbance which may not be repairable. We must, therefore, decline to issue any writ in this case to grant relief to the appellant."
I have referred to the above passage as it has a bearing on the question of the justification for making repeated representations as well as the relevancy of question whether a discretionary remedy against Government orders regarding civil servants should be granted where the granting of such relief would have the effect of upsetting the arrangements which' were allowed to exist for a considerable time. These considerations were relevant in this case as this was a suit for declaration which is a discretionary remedy.
10. In view of what has been stated above, the suit of respondent No, 1 was clearly barred by limitation and ought to have been dismissed on that ground. In the result, I accept this appeal and dismiss the suit of respondent No,
1. Before parting with this case, however, I would like to make it clear that nothing in this judgment would be taken to prejudice any redress that the Government may give to the respondent No, I on the merits of this case if any occasion arises for5 reconsideration of facts which have formed part of this case. The costs throughout shall be borne by respondent No,
1. PLD 1974 SC 291 AIR 1941 Mad. 81 AIR 193E Mad. 193 PLD 1964 SC 520 1971 SCM R 309