' MUHAMMAD IRSHAD KHAN (MEMBER).-- The relevant facts leading to the present appeal, briefly speaking, are that the appellant was appointed as a Stenographer under the Ministry of Food and Agriculture and was posted in the erstwhile Wildlife Enquiry Committee (now National Council for Conservation of Wildlife, hereinafter referred to as the Council) with effect from 12-5-1969 and was confirmed there as such with effect from 19-11-1975. Thereafter the appellant applied for the post of Stenographer (Grade-11) in the then newly-constituted Ministry of Agrarian Management and, on selection, he was relieved of by the Council retaining his lien there. He was consequently appointed as P.A. To the Secretary in the Ministry of Agrarian Management with effect from 31-8-1976 and was promoted to the Selection Grade Stenographer with effect from 1-1-1977 in the same Ministry. In early 1977 the appellant was promoted against a newly-created post of Stenographer (Grade-14) in the Council and was asked to join clarifying that if he did not join he would lose his seniority. He refused to join vide his letters dated 29-3-1977 and 13-5-1978 and according to the Council, he could not be given promotion in absentia in view of the instructions of the Establishment Division on the subject. Again the Council vide its 0.M., dated the 26th of May, 1977, requested the Ministry of Agrarian Management to convey the consent of the appellant immediately for consideration by the Departmental Promotion Committee for his (the appellant's) promotion for a newly-created post of Superintendent. The appellant had given his consent vide his note, dated 29-6-1977 addressed to the Section Officer (Admn.) of the Ministry of Agrarian Management. The said Ministry, however, replied to the Council that it would not be possible for that Ministry to relieve the appellant. The post of Superintendent, which was, in fact, a Grade-14 post, was later on filled up in the Council by selecting respondent No,
4. On the other hand the appellant was promoted as Private Secretary to Secretary to the Government of Pakistan, Ministry of Agrarian Management with effect from 12-12-1977 and then appointed to Grade-16 Superintendent in the same Ministry by horizontal transfer with effect from 17-4-1978. Vide notification, dated 24-4-1978, issued by the Cabinet Division, the Ministry of Agrarian Management was abolished and the appellant was transferred alongwith the work to the Ministry of Industries in the same grade of Superintendent, where he served as such till 28-8-1982 when on abolition of the said post of the Superintendent he was reverted to his permanent post of Stenographer in the Council. The appellant then submitted a representation requesting that he should be appointed as Superintendent and not be required to join in a lower post. The request was turned down as conveyed to the appellant by the Council vide its 0.M., dated 13-3-1983. Hence his appeal.
2. We have heard the parties and perused the record. It is quite clear that the cause of action, if any, accrued to the appellant as early as in 1977 when he was not considered for promotion against the post of Superintendent to which respondent No, 4 was appointed. The appellant, however, did not care to make a departmental appeal/ representation as required by low and his aforesaid representation, dated 30-8-1982 cannot be a substitute for such legally required departmental appeal. The present appeal is, therefore, clearly barred by proviso (a) to subsection
(1) of section 4 of the Service Tribunals Act, 1973, and is liable to be dismissed on this short ground alone.
3. On merits also having carefully considered the facts and circumstances of the case we are of the view that the Council was justified in omitting the appellant from consideration for the post of Superintendent simply because of the refusal of the Ministry of Agrarian Management to relieve him inasmuch as it was not legally possible to promote him in absentia.
4. For the foregoing reason, the appeal is dismissed with no order as to costs.
A.O. RAZ1UR RAHMAN (MEMBER).- Having carefully gone through the case record, including the departmental personal file of the appellant and other connected documents, and considering all the pros and cons of the matter, I am of the view that, while it is not possible, for me to agree with my learned colleague's view that legally it was not possible to promote the appellant in absentia, considering the instructions contrary to this contained in the Ministry of Finance, O.M. No, F.1.(5)-RI- (R.W.P.)/62, dated 21st April, 1962, which categorically says, "A permanent Gcvernment servant who is temporarily transferred from one office to another in the public interest should be considered for promotion to a higher grade in his parent office as and when a vacancy occurs in the higher grade and if he is selected for promotion In accordance with the relevant rules, he should be appointed pro forma to the higher grade so that when he reverts to his parent office he can count, for seniority and increments in the higher grade, the period for which he remained on deputation", I nevertheless agree that the appeal deserves to be dismissed for the reason that, although it was in 1978 that respondent No, 4 was appointed as Superintendent in the National Council for Conservation of Wildlife, ignoring the claim of the appellant for such appointment, albeit without any formal intimation of the fact to the appellant, the appellant, who should have been aware of the fact and, accordingly, appealed against being left out of consideration for promotion, failed to do so at the appropriate time and only raised the question that he should be posted as Superintendent (Grade 16) when he was reverted as Stenographer (Grade 11) to his parent department, thus coming within the mischief of proviso (a) to section 4 of the Service Tribunals Act, 1973.