' ABDUL HAMID CHAUDHRY (MEMBER).-- Nawab Din has made this appeal under section 4 of the Punjab Service Tribunals Act, 1974, wherein he has impleaded the Province of Punjab through Secretary, Local Government and Rural Development Department Lahore, Secretary Local Government & Social Welfare Rural Development, Punjab, Lahore and contesting respondents No,3 to 34 (as per list attached with the appeal), as respondents.
2. By virtue of this appeal the appellant has prayed that the order dated 8-6-1980 be set aside, the appellant be ordered to be promoted in Grade 17 and placed on No,3 in the seniority list.
3. Brief facts of the case are that the appellant, Mr. Nawab Din, was serving as Superintendent (Arboriculture), District Council, Lahore which post was abolished in 1967. On abolition of this post he was declared surplus and was directed to be reverted to the District Council. On the 10th August, 1967 he was appointed as Secretary, Town Committee, Shahkot in Class II (Junior) Cadre of Local Council Service against a vacant post. Ultimately, he was absorbed in Class II (Senior) Cadre and the appellant was appointed as Taxation Officer, Municipal Committee, Multan, a Class 11 (Senior)
Cadre in the Local Council Service but without its pay scale. However, on the 17th February, 1969, the Local Government Board allowed the appellant to draw the provisionally pay in the pay scale of Class II (Senior) Cadre of Local Council Service. The Deputy Commissioner, D.G.Khan and the Commissioner, Multan Division, made certain reports against this officer for the period pertaining to his posting as Chief Officer, Zila Council, D.G.Khan. On the basis of which the Provincial Local Government Board decided that he should be reverted to Class II (Junior). As such the orders dated 17-2-1969 were withdrawn and fresh orders reverting Mr.Nawab Din to Class II (Junior) were issued on 7-11-1970. The appellant filed a Civil Suit challenging the orders dated 7-11-1970 relating to his revertion and also filed a writ petition in the High Court and civil petition for special leave to appeal in the Supreme Court, where he could not succeed. Vide order, dated 23-12-1970 the Supreme Court of Pakistan refused to grant the special leave to appeal and his petition was dismissed. His civil appeal before the Additional District Judge, Lahore was also dismissed. He, however, obtained stay orders from the Civil Court at Lahore, Attock and Sialkot stations where he was subsequently posted from time to time. Thus he continued to draw his salary in Class 11 (Senior) on the basis of these stay orders. On 14-3-1972, the appellant was retired under M.L.R.114 when he was holding the charge of the Office of Taxation Officer, Municipal Committee, Sialkot. On 3-4-1978 he was reinstated on the recommendations of the Review Board and was posted to his previous post of Taxation Officer, Municipal Committee, Sialkot the post from which he was retired under M.L.R.114 in the year 1972. On reinstatement he started receiving the same salary which he was drawing at the time of his retirement. The appellant represented for his regular absorption in N.P.S.16 from the year 1967. After studying the pros and cons of the case, the Secretary, Government of the Punjab, Local Government Social Welfare and Rural Development Department, allowed him to continue in L.C.S. (N.P.S.16) on regular basis vide his order, dated 24-12-1979. This was done without referring the matter to the Provincial Local Government Board which was the competent authority to take decision and made recommendations on such matters. This matter was, however, taken up by the Provincial Local Government Board in their meeting held on 2-6-1980 and it was decided that the orders passed by the Secretary Local Government on 24th December, 1979 could only be given prospective effect from the date of the order and not ret. Ospective effect from 1967.
Thus as decided by the Provincial Local Government Board in its meeting held on 2-6-1980, the promotion of the appellant, Mr. Nawab Din was made on regular basis in N.P.S.16 from 29-12-1979 vide order, dated 8-6-1980 of Secretary to the Government of Punjab, Local Government and Rural Development Department. The appellant is aggrieved of this order, dated 8-6-1980. Hence this appeal.
4. We have heard the parties. The learned counsel for the appellant has relied on the order, dated 24-12-1979 wherein the appellant was allowed to continue at L.C.S. (N.P.S.16) on regular basis. The contention of the appellant's counsel is that the services of the appellant in N.P.S.16 have been regularised through this order since the year 1967, hence. The order dated 8-6-1980 through which the appellant as again regularised in N.P.S.16 w,e,f, 24 12-1979 is uncalled for and unjustified. It was further pointed out by the learned counsel for the appellant that actually the Secretary, Government of the Punjab, Local Government and Rural Development Department has approved the proposal for the promotion of the appellant to N.P.S.17 and this proposal was placed before the Provincial Local Government Board for approval but the Local Government Board took up the matter of the appellant for his approval in Grade 16 instead of Grade 17 of their own which was not required, as the appellant had already been approved in N.P.S.16 by the Secretary Local Government as mentioned above. Thus the decision of the Provincial Local Government Board vide their meeting held on 2-6-1980 is misleading, misconceived and mischievous. It was prayed by the learned counsel for the appellant that the order, dated 24-12-1979, wherein the appellant was approved in L.C.S. (N.P.S.16) on regular basis from his original date be sustained and also the appellant be allowed to be entitled for N.P.S.17 from 26-3-1980 the date on which the proposal was approved for promotion to Grade 17 by Mr. Ahmad Sadiq, Secretary, Government of the Punjab, Local Government and Rural Development Department, Lahore.
5. Controverting these arguments the learned District Attorney submitted that it is clear from the order, dated 7-11-1970 that the appellant was reverted to Class II (Junior) i,e, N.P.S.11. Though the appellant went for civil suit against the reversion order, dated 7-11-1970 in the Court of Civil Judge, Lahore and prayed for interim stay. The said stay was not granted and civil suit dismissed. He went for the appeal against this order in the court of Additional District Judge, Lahore. The said appeal was heard by the Additional District Judge who vide order, dated 18-10-1971 dismissed the same.
The appellant also filed a writ petition before the High Court challenging the order, dated 7-11-1970.
The said petition was dismissed and against this decision of the High Court the appellant filed a civil petition for special leave to appeal before the Supreme Court of Pakistan. The Supreme Court refused to grant leave holding that the petitioner was only provisionally permitted to draw pay in the scale of Class II (Senior) pending final decision about his absorption in the Local Council Service and therefore, the withdrawal of the provisional order does not amount to reduction in rank.
It was further submitted by the learned District Attorney that on the strength of certain stay orders granted by the Civil Courts the appellant continued to draw the N.P.S.16 till he was retired under M.L.R.114 in 1972. On his reinstatement in the year 1978 the same pay was allowed whatever he was drawing before his retirement. It was further pointed out by the learned District Attorney that this matter lingered on in view of the stay orders and as soon as these stay orders were 'vacated, the matter was taken up by the Secretary Local Government who regularised his appointment in N.P.S.16 vide his order, dated 24-12-1979. It is wrong on the part of the learned counsel for the appellant to stretch this order to the extent that the appellant was regularised from the back date.
Actually this order is quite clear to mentinn that he was allowed to continue in L.C.S. (N.P.S.-16) on regular basis from the date of the passing of the order, dated 24-12-1979. It was also submitted by the learned District Attorney that this order of the Secretary Local Government was not also a final order as he had issued this order without approval of the Provincial Local Government Board which was the competent authority in case of the appellant and no regular appointment could be made without recommendations of the said Board. This matter was ultimately decided in the meeting of the said Board on 2-6-1980 wherein the appointment of the appellant was approved from 24-12- 1979, where it was also mentioned that his appointment from retrospective effect from 1967 cannot be approved. On this strength, the final appointment of the appellant to N.P.S. 16 was regularised w,e,f, 24-12-1979 vide order dated 8-6-1980. Hence no exception can be taken against this order of the Secretary to Government of the Punjab, Local Government and Rural Development Department which was passed on the decision of the Provincial Local Government Board and thus appellant was brought on regular basis in N.P.S. 16 from 24-12-1979. He has also rebutted the claim of the learned counsel for the appellant that Secretary had approved the appointment of the appellant for N.P.S.-17. As approval of the Secretary, Government of the Punjab, Local Government and Rural Development Department was subject to ratification by Provincial Local Government Board which was not done by the Board and the matter stood dropped.
6. A legal objection was also raised by the learned District Attorney that the appeal is time barred.
According to the appellant's own version the order dated 8-6-1980 was conveyed to him on 14-7- 1980 when the appeal has been filed on 14-9-1980. According to section 4 of the Punjab Service Tribunals Act, 1974, the appellant could file an appeal within 30 days from the date of communication of the order to him. Thus the appeal was to be submitted to the Tribunal by 13-8- 1980, wherein he has filed this appeal on 14-9-1980. Thus the appeal is barred by time by one month. It was also pointed out by him that no cogent explanation has been given for the condonation of delay in the application submitted by the appellant under section 5 of Limitation Act. Concluding these arguments it was submitted by the learned District Attorney that the appeal is liable to be rejected on this score alone.
7. We have given our anxious thought to the arguments of the parties and have also consulted the record in this case. The main issue in this case is that the appellant is praying for consideration of his regular appointment from 1-1-1968 in senior Class II or N.P.S.-16, instead from 24-12-1979 and also the seniority from the same date. In this case the judgment of the Supreme Court of Pakistan dated 23-12-1970 on the civil petition filed by the appellant for special leave to appeal. No, 304 of 1970, is very much material wherein it has been held as follows:- "It is apparent from the foregoing that the petitioner was only provisionally permitted to draw pay in the scale of Class II (Senior) pending final decision about his absorption in the Local Council Service and therefore, the withdrawal of the provisional order does not amount to reduction in rank.
In the case of Pakistan v. Hikmat Hussain, this Court held that an officiating appointment gave the appointee no vested right and if the Government subsequently thought it fit to appoint him to another post not lower than the one he was holding before the officiating appointment, he was not reduced in rank and had no grievance."
' This judgment of the Supreme Court makes it clear that the appellant was validly reverted by impugned order dated 7th November, 1970 to Class II (Junior).
8. Later on the appellant continued to draw pay in Class II (Senior) i,e, N.P.S.-16 due to stay order granted by the civil Court which did not confer him the right to Class II (Senior) on regular basis. On vacation of the stay orders, this controversy was solved by the Secretary who allowed the appellant to continue in L.C.S. (N.P.S.-16) on regular basis vide his order dated 24-12-1979. We have seen the record and find that this too was done with the approval of the Provincial Local Government Board which was the competent authority to make recommendation/decision in this behalf and only then the Secretary was required to issue the order on the decision of the Board. We have gone through the minutes of the Provincial Local Government Board, held on 2-6-1980 wherein for Item No,5, Board has taken the following decision:-- "Item No,5-- ABSORPTION OF MR. NAWAB DIN, CHIEF OFFICER ZILA COUNCIL LAHORE IN N.P.S.-16 AS APPROVED BY THE SLG VIDE ORDER DATED 18-12-1979.
' The point as to whether Nawab Din, C.O., District Council, Lahore could be regularized in Grade-16 from 26-12-1967 (the date from which he continued holding Grade 16 post) or from 24-12-1979 (the date from which his appointment was made on regular basis by SLG) came up for discussion.
Record was examined. It was noticed that Mr. Nawab Din was basically a Grade-11 Officer but continued to hold 16-Grade post on account of stay order. After the vacation of stay order he could not have legally continued or considered entitled to continue in Grade-16 post. In the circumstances, it was decided that the orders passed by SLG on 24th December, 1979 could only be given prospective effect from the date of the order and not retrospective effect from 1967."
' Thus Secretary, Government of Punjab, Local Government and Rural Development Department issued another order on 8-6-1980 as per decision of the Provincial Local Government Board to promote the appellant to N.P.S.-16 w,e,f, 24-12-1979. We have no hesitation to appellant to N.P.S.-16 w,e,f, 24-12-1979 and no exception can be taken hold that this is the proper and regular order of promotion of the against this order. As far as the claim of the learned counsel for the appellant for N.P.S.-17 on the basis of the approval of Mr. Ahmad Sadiq, Secretary, Government of the Punjab, Local Government and Rural Development Department, Lahore dated 26-3-1980, it may be worth mentioning that this proposal was approved subject to ratification by Provincial Local Government Board. As this proposal did not materialize, hence the appellant cannot claim any entitlement for the same.
9. As far as objection of the learned District Attorney regarding point of limitation is concerned, we have seen the application filed by the appellant for condonation of the delay which does not persuade us 1 to condone the delay in filing of this appeal. Thus we agree with learned District Attorney that appeal is barred by time by one month.
10. Keeping the above analysis in view, we hold that there are no merits in this appeal which is also barred by time and is dismissed as such.
' There will be no order as to costs.