1. ' MUHAMMAD AFZAL ZULLAH, J.-This service appeal through leave of this Court is directed against the judgment dated 17-6-1980 of the Central Service Tribunal; whereby an appeal filed by Bashir Ahmad Khan respondent raising the so-called question of his seniority in Grade-20 in Police Group with effect from 1-5-1974, was allowed with consequential benefits. On a petition filed by the Government of Pakistan through Secretary, Establishment Division, bringing under challenge the judgment of the Service Tribunal leave to appeal was granted to examine, inter alia, the following contentions : "That the respondent's representations for promotion to Grade-20 had been finally rejected on 29th August, 1975, whilst the appeal filed by him was dated 14th January, 1979. ' Therefore, learned counsel submission was that the appeal was grossly time-barred and that the Tribunal had erred in law in holding that the repeated attempts of the respondent to repaginate a claim which had been finally dismissed on 29th August, 1975 could extend limitation. Learned counsel also submitted that the Tribunal had misread the proviso (a) to subsection (1) of section 4 of the Service Tribunals Act, 1973. These submissions require examination."
2. ' In view of the consideration of question of limitation only during the hearing of the appeal by this Court, it would suffice to re-state only the brief facts noticed at the leave granting stage. They are : ' The respondent was a Grade-19 officer of the Police Group and was appointed as Chairman of the Sind Road Transport Corporation, Karachi. Although the Chairman's post was a Grade-20 post, the respondent had not been given this grade. However, in September, 1974 the Government issued a notification transferring the respondent to Baluchistan as Inspector-General of Police and gave him Grade-20. The condition of this appointment was that he would take charge of his post as Inspector-General of Police Baluchistan, immediately, but instead of complying with this order, he carried on correspondence in which he demanded allegedly that he should be given Grade-21. The respondent's explanation about his inability to take his new appointment immediately was that the Sind Government was allegedly not relieving him from the post of Chairman, Sind Road Transport Corporation. Be that as it may, on the allegation that the respondent had wilfully refused to comply with his transfer order, he after due notice was compulsorily retired on 20th September, 1974. He relinquished charge on the 24th September, 1974. He then applied to the President for a review of his case and it is sufficient to state that he was reinstated in Grade-19 on 3rd June, 1975. After his reinstatement, he again applied for promotion to Grade-20, but his representation was rejected and as he was working in the F. I. A. By its letter, dated 29th August, 1975 to the F. I. A. The Interior Division purportedly informed the respondent through the F. I. A. That his representation for promotion to Grade-20 had been rejected. In 1976, the respondent was Inspector-General of Prisons (Sind) when he was again compulsorily. Retired for the second time on 30th October, 1976.
3. He filed a review application and was again reinstated on 13th June, 1978, in Grade-19. Therefore, once again, he filed representations that he was entitled to appointment in Grade-20. But as, according to him, his representations were finally rejected on 12th December, 1978 he filed a Service appeal before the Service Tribunal, Islamabad. The relief claimed by him in his appeal was that he was entitled to seniority in Grade-20 with effect from 1st September, 1974. As this appeal was allowed by the Tribunal by its order dated 17th June, 1980 the Government filed petition for leave to appeal which was granted to examine, amongst others, the question whether the appeal before the Tribunal was time-barred.
4. ' Before the question of limitation is taken up, it needs to be mentioned that some other serious questions of law were raised from the appellant side before the Tribunal including the one that the respondent having sought a relief regarding the fixation of his seniority in the Police Group, nearly a dozen other Police Officers who would have been allegedly adversely effected by grant of relief to him were not impleaded even as pro forma respondents; and thus they were, as contended from the appellant side, denied the opportunity of hearing. The respondent's plea to this very serious objection was that those .Officers who were senior to him in Grade-19 would not be adversely effected if his plea regarding fixation of seniority in Grade-20 with effect from his so-called promotion on 1.9-1974 was determined. This together with the other questions including appellant's plea whether the appeal before the Service Tribunal in the circumstances of this case, was at all competent in view of the bar contained in proviso (b) to subsection (1) of section 4 of the Service Tribunals Act (LXX of 1973), would have been seriously considered if the appeal did not merit disposal on question of limitation alone.
5. ' The learned Deputy Attorney-General in order to elucidate the points regarding limitation, gave the following dates and events as relevant in that behalf : "1-9-1974 : The respondent (belonging to the Police Group in Grade-19 when he was serving in an ex-Cadre Grade-20 post) was 'promoted to Grade-20 and appointed to officiate as Inspector- General of Police, Baluchistan, in that grade with immediate effect and until further orders' ; 7-9-1974 : On failure of the respondent to join and take charge of the post of Inspector-General of Police, Baluchistan, he was served with a show-cause notice for misconduct ; 18-9-1974: Respondent submitted a reply to the notice in which he made an attempt to show his helplessness and innocence ; 20-9-1974 : As a result of disciplinary action, the respondent was compulsorily retired by order of the President ; 23-10-1974 : The respondent filed a review application before the President under rule 10 of the Government Servants (Efficiency and Discipline) Rules, 1973. The contents of this application contained the plea of merits as also unqualified apology in the background of relationship between the respondent and the then Prime Minister, some details of which he had candidly stated in paragraphs 9 and 10 of the application ; 17-5-1975 : The respondent addressed a brief petition to the then Prime Minister, admitting the charge of indiscipline and submitting an unqualified apology throwing himself at his mercy ; 3-6-1975 : The respondent was. Reinstated 'in service in the rank of D. L-G. Of Police with immediate effect and until further orders'. He was assigned a Grade-19 post in the F. I. A.
6. 9-7-1975 : The respondent made a representation to the President seeking redress regarding assignment of a Grade-20 post on the main plea that be was promoted to the said Grade on 1-9- 1974 and that the reinstatement should have been in that Grade ; 29-8-1975 : The representation was rejected and information regarding rejection sent to the respondent through the F. I. A. But according to his assertion, and findings by the Tribunal he did not receive any such communication ; 29-8-1975 : The Ministry of Interior, Government of Pakistan, sent a communication to the Director- General, F. I. A. With reference to its forwarding note, dated 23rd July, 1975 stating, as a reply thereto, that the respondent's representation had been rejected and further that he may be informed accordingly ; 30-10-1976 : The respondent was again retired compulsorily when he was serving as Inspector- General of Prisons (D. I.-G. Of Police Grade-19) Sind ; 8-9-1977 : He again made a review petition to the President ; 13-6-1978 : He was again reinstated and appointed as Officer on Special Duty (Grade-19) in the Establishment Division until further orders-without any entitlement to 'any damages, compensation or arrears of emoluments or other benefits for the period remaining out of service'; 24-6-1978 : The respondent again made representation for appointment in Grade-20 23-11-1978 : The respondent's representation was rejected with reference to the order dated 29-8- 1975 to the effect that his similar request was considered earlier and refused ; 27-11-1978 : The respondent asked for the copy of the order dated 29-8-1975 ; 12-12-1978 : The respondent was supplied the copy ; 14-1-1979 : The respondent filed service appeal before the Tribunal."
7. ' The repeat representations or reminders to the main applications are not included in the foregoing data.
8. ' Sections 22 and 23 of The Civil Servants Act (LXXI of 1973) ; rule 10 of the Government Servants (Efficiency and Discipline) Rules, 1973 and relevant part of section 4 of the Service Tribunals Act (LXX of 1973) which have been brought under discussion are reproduced below : "The Civil Servants Act, 1973 :
22. Right of appeal or representation.-Where a right to prefer an appeal or apply for review in respect of any order relating to the term and conditions of his service is provided to a civil servant under any rules applicable to him, such appeal or application shall, except as may be otherwise prescribed, be made within thirty days of the date of such order.
(2) Where no provision for appeal or review exists under the rules in respect of any order or class of orders, a civil servant aggrieved by any such order may, within thirty days of the communication to him of such order, make a representation against it to the authority next above the authority which made the order : Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade.
9. "23. Saving.-Nothing in this Act or in any rule shall be construed to limit or abridge the power of the President to deal with the case of any civil servant in such manner as may appear to him to be just and equitable : Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt within any manner less favourable, to him than that provided by this Act or such rule."
10. "The Government Servants (E & D) Rules, 1973 : "10. Appeal. -A person on whom a penalty is imposed shall have such right of appeal as may be prescribed*: Provided that, where the penalty is imposed by order of the President, there shall be no appeal but the person concerned may apply for review of the order."
11. "The Service Tribunals Act, 1973 : "4. Appeals to Tribunals.-(1) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him, or within six months of the establishment of the appropriate Tribunal whichever is later, prefer an appeal to the Tribunal : ' Under the Civil Servants (Appeal) Rules, 1977, ' Provided that -
(a) where an appeal, review or representation to a departmental authority is provided under the Civil Servants Act, 1973, or any rule against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred ;
(b) 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 post or grade ; and (c)
12. (2)
13. ' The plea of the learned Deputy Attorney-General that the respondent's appeal before the Service Tribunal was barred by time has force, for several reasons.
14. ' It has to be observed straightaway that the question raised by the respondent, having once been determined by the competent authority against him in 1975, unless that decision was set aside, the challenge to the 1978 reiteration by the authority of the same earlier decision, will not be of any avail to him. It is in this light that the question of limitation vis-a-vis 1975 decision becomes important.
15. If the time is reckoned from the date of communication of rejection of the respondent's (second) representation against order dated 3-6-1975 whereby he was denied Grade-20, the appeal should have been filed within 30 days of the communication. There is factual controversy about communication. The Interior Division sent a letter on 29-8-1975 to the F. I. A. Where the respondent was then serving, with a view to inform him about the decision. The respondent's review application was forwarded by the same. Department. Therefore, it is understandable that information was sent to him through the same agency. His plea that the letter of rejection of review application (dated 9-7-1975) was not communicated to him formally till he applied for copy and obtained the same on 12-12-1978, might be well founded but that by itself will not save the limitation. He had choice not to wait for the communication of the decision and file the appeal after the expiry of 90 days of the period specified in section 4(1) proviso (a) of the Service Tribunals Act. It is true that he was not bound to follow this course as the law permitted him to wait for the final order and file appeal against the same as provided in the purview of section 4(1). In that case naturally he would as a reasonable person, make enquiry at the time of the expiry of 90 days about the fate of review application. Had he done so, he would have become aware that it had already been rejected. In the peculiar circumstances of this case, therefore, when the order/communication showing the rejection had already been received in the office of the F. I. A., his own department, the presumption about his knowledge can safely be raised under the general law. Therefore, the period of 30 days of limitation can be treated to have started on 29-8-1975 and/or on the expiry of 90 days after the filing of his representation when as observed above, in normal course h would have made enquiry about the result of his representation from the office of Director-General, of the F. I. A, through whom he had sent representation. Looked at from this angle his appeal before the Tribunal was clearly time-barred. It is, however, to be clarified that in the circumstances of the case the Tribunal had the power to condone this delay. But condo nation was neither sought nor granted under the assumption that the appeal was not time-barred.
16. The respondent's review petition against his second compulsory retirement filed on 8-9-1977 having been allowed on 13-6-1978, he made another representation on 24-6-1978 which was rejected on 23rd November, 1978 on the basis that his earlier representation had been rejected on 29-8-1975. The time for filing an appeal against the orde dated 23-11-1978, if at all it was to be treated as giving fresh cause of action, would start running from the said date. The joint appeal filed on 14-1-1979 was, therefore, time-barred, also vis-a-vis the second compulsory retirement.
17. ' It may be remarked that as in the appeal relating to the earlier retirement, the Tribunal had the power to condone the delay, in the circumstances of this case, the delay could be condoned in respect of the second delay also but neither the condonation was sought nor was it granted. The matter does not end here. The question of limitation is directly linked with another very important question which arises in this appeal.
18. According to section 22 of the Civil Servants Act, 1973 the respondent had under subsection (1) thereof a right to file a review under rule 10 (ibid) against the first order dated 20-9-1974 of retirement. Its disposal was by order of 3-6-1975. That was a final order passed or review application filed by him. If the relief sought by him in the review application was only partly granted and he wanted to make a further representation so C as to seek complete relief, he would be doing so at a risk regarding expiry of limitation ; because, section 22 does not visualize a second review or for that matter representation after the rejection or partial acceptance of the first one. The respondent's plea that subsection (2) of section 22 permitted such second attempt has no force.
19. The very opening words of subsection (2) namely, "where no provision of appeal or review exists under the rules in respect of any order " would show that the said subsection could be invoked only if no provision was made for appeal or review in the relevant rules. Here in this case the right to file a review was available under rule 10 of the Government Servants (Efficiency and Discipline) Rules, 1973 read with subsection (1) of section 22 of the Act. Therefore, subsection (2) would not be of any help to the respondent.
20. He challenged his first compulsory retirement through a review application filed on 23rd of October, 1974, which was decided on 3-6-1975. This was the final order passed on review. It could be challenged within 30 days, before the Tribunal under section 4 of the Service Tribunals Act. If the appellant chose not to file an appeal but only to repeat a representation before the same authority who had decided the review, that by itself would not give him another cause of action to file an appeal under E section 4. The period spent in making the representation this second or any other representation after the decision of the review application, could not be excluded as of right in counting the period of limitation.
21. ' It would have been a different matter if the delay so caused by making the subsequent representation would have been condoned by the Tribunal on any good ground.
22. ' Same would apply to the appeal arising out of the second compulsory retirement. The review petition filed by the respondent, in that behalf, was decided on 13-6-1978. Instead of filing an appeal before the Tribunal under section 4 within 30 days of this final order passed on review, he made another representation which caused further delay. The period consumed during the processing of the subsequent representation could not be excluded as of right. And there being no condonation on any good ground by the Tribunal, the appeal filed on 14-1-1979 was clearly time- barred and should have been dismissed accordingly.
23. ' This Court has expressed the same view on the effect of representations on question of limitation in several cases. Two of them are : Rana Ghulam Sarwar Khan v. Director of Inspection and Technical Developments (1) and Syed Tajamrnul Mahmud v. Secretary Finance and others (2). We are in agreement with similar view expressed on the question of law by the Supreme Court of Azad Jammu and Kashmir in Fida Muhammad Rathore v. Azad Government of State of Jammu and Ka hmir (3), though it is further remarked, that apart from the question of law the grounds for condonation of delay will depend upon the circumstances of each. We also approve a similar view expressed on the question of law of limitation vis-a-vis repeated applications in some Tribunal cases: Muhammad Ahsan Khan v. Information Secretary and another (4), Muhammad Yousaf v.
24. Inspector-General of Police (5) and Khusro Parvaiz Malik v. Secretary, Ministry of Finance and another (6).
25. It also needs to be noticed that in a directive issued on 29th November, 1978 printed as Serial No, 14: Under the Head "Speedy Disposal of representations, appeals, etc." at page 684 of the ESTACODE, the Federal Government laid down certain guidelines with regard to the remedies available under section 22 of the Civil Servants Act, 1973. Paragraph 2 of the directive reads as follows : "2. The Civil Servants (Appeal) Rules, 1977, as well as section 22 of the Civil Servants Act, 1973, envisage only one representation from the Government servant in respect of a particular departmental order by which he is aggrieved. Once an appeal or representation is rejected by the competent authority, the Government servant can go to the Service Tribunal. He has no right under the rules to submit further representation or a series of representations to the appellate authority/next higher authority or to still higher authorities. In future such unauthorized representations will not be entertained."
26. ' In paragraph 3 inter alia it is provided that "In cases where the competent authority has already rejected the first appeal/representation, a second or subsequent appeal/representation need not necessarily be replied to. However, if a civil servant does not receive a final reply to his original appeal or representation and a period of six months has elapsed since the appeal or representation was submitted, he may send a reminder through proper channel to the appellate authority and endorse a copy of the reminder direct to the Secretary or Minister concerned enclosing also a copy of his original representation." And paragraph 4 further provides that the Secretary/Head of the Department concerned would ensure that he is kept informed every month by a specific date of such pending
(1) 1981 PLC (C. S.) 112 (2) 1981 PLC (C. S.) 127
(3) 1983 PLC (C. S.) 256 (4) NLR 1979 Service Tr. Fed. 224
(5) 1983 PLC (C. S.) 337 (6) 1984 PLC (C. S.) 130 appeals/representations and it would be his personal responsibility to ensure equitable and quick disposal of such cases. For this purpose, the attached pro forma to the directive, it was further emphasised, must be put up to the Head of the Department/Secretary every month along with reasons for delay in the disposal.
27. These instructions are salutary and should be obeyed in letter and spirit. The civil servant, however, should not be misguided regarding period of limitation for filing an appeal before the Tribunal, by the advice therein: that when no final reply is received to his appeal or representation within six months he may send a reminder through proper channel. The date of sending of the reminder and the time spent in waiting for the response thereto would not be excluded as of right from the period of limitation for filing the appeal before the Tribunal. In other words, the mere submission of reminder will not be of much help to the civil servant. He will have himself to remain vigilant with regard to the disposal of the appeal or representation because it is the communication thereof from which the period of limitation would start running.
28. ' It would, however, be a totally different situation if the civil servant does not wait for the final decision of the appeal or representation and avails of the other alternative provided in the proviso
(a) to subsection (1) of section 4 and decides to file an appeal within a period of 30 days, after the expiry of 90 days from the date of the filing of the appeal or representation. The subject with regard to these alternatives has been discussed in detail in the case of Haft Kadir Bux v. Province of Sind and another (1). Paragraphs 6, 7 and 8 of the reported judgment read as follows : "6. When a civil servant has filed an appeal, review or representation before a departmental authority, as required by the above-mentioned proviso, he has two choices before him :-
(1) he can either wait for such authority to pass the final order on his appeal, review or representation, no matter how long it takes. He can then file an appeal against the final order before the Service Tribunal within a period of 30 days, as provided by the main portion of section 4, or
(2) after the passage of 90 days, if the departmental authority has not yet passed she final order on his appeal or review etc., he can file an appeal directly against the earlier order of the departmental authority, before the Service Tribunal.
29. "7. The main portion of section 4 of the Sind Civil Servants Act clearly allows the civil servant a period of 30 days to file an appeal against the final order after the right of filing of appeal accrues to him, i,e, after the order in question has been communicated to him. Similarly where a civil servant has filed an appeal or review etc. To a departmental authority and, exercising the first option of the above-mentioned two options, awaits the passing of the final order by it, he would again have the right to file the appeal to the Service Tribunal within 30 days of the communication to him of such an order, under the provisions of the main portion of section 4.
8. The question to be determined however is as to what would be the period of limitation available to a civil servant who opts for the second choice, namely, to file an appeal to the Service Tribunal, when the departmental authority fails to pass any order even after
(1) 1982 SCMR 582 the passage of 90 days of the filing of the appeal or review, etc. Before it. Obviously although no 'final' order has been passed in this case, the period allowed to the civil servant for filing an appeal before the Service Tribunal in this case would be not less than 30 days after the right to file an appeal has accrued to him i,e, after the passage or expiry of 90 days."
30. In the light of the foregoing discussion it is held that the respondent civil servant was, therefore, was not entitled to exclude the period consume in the filing of the subsequent representations after the decision of his review applications each time that he was compulsorily retired. That being so, his appeal before the Tribunal in either case was time-barred. This appeal accordingly merits acceptance on this finding. The impugned judgment is set aside.
31. ' Before closing this judgment it needs to be clarified that this appeal has been allowed on question of limitation only and for that reason we have avoided discussion on merits lest it might cause prejudice to the respondent in the proceedings which as it emerged during the discussion, the respondent might file under section 23 of the Civil Servants Act. That question arose in the context of the pleas of the contestant parties before us regarding the validity or propriety of the so-called promotion of the respondent (allegedly to Grade-20) in September, 1974. Regardless of the fact whether it was a promotion, and if so, whether it was validly made, the fact remains that it had affected the rights of nearly a dozen officers who were then senior to the respondent. It is surprising that the Service Tribunal did not implead those officers when examining the question K whether the respondent's plea regarding promotion to Grade-20 could be allowed. Be that as it may, the respondent made a grievance of another type before us. According to him, notwithstanding the fact that his review applications against the two orders of compulsory retirement had been allowed and that he had been taken back in service in Grade-19, he was subsequently punished in another way because nearly half a dozen officers who were junior to him in Grade-19 in September 1974, have been allowed seniority against him in that grade. The learned Deputy Attorney-General was unable to accept or deny this assertion made by the respondent because it was not the subject-matter of appeal. He, however, made a statement that if the respondent invokes the power of the President under section 23 of the Civil Servants Act "to deal with the case of a civil servant in such a manner as may appear to him to be just and equitable", he, (the Deputy Attorney-General) would, in fairness, place the correct position before the President if and when called upon to do so.
32. ' With these remarks this appeal is allowed, but, there shall be no order as to costs.