1. ' MUSHTAK ALI KAZI (CHAIRMAN). - The appellant, an Excise and Taxation Officer (Retired) has preferred this service appeal to claim antedated promotion in Grades 16 and 17 and pro forma promotion in Grade-18 with refixation of pay and consequential benefit in his pension.
2. ' The facts of his case are as under :- ' The appellant had joined the Indian Army as a J. C. O. On 2nd February, 1942. In the year 1947 after partition the appellant migrated to Sind. On 17th June, 1948 he was appointed Taxation Sub- Inspector in the Province of Punjab. On abolition of the provinces he was promoted as Taxation Inspector on 17th April, 1962 in West Pakistan and transferred to Sind Region on 5th August, 1966. On 28th December, 1967 the appellant was transferred from Lyallpur to Karachi. Ultimately, on abolition of One-Unit the appellant was allocated to Province of Sind on 1st July, 1970. The appellant was being considered as having entered service in the Sind Province from 1st July, 1970. He, therefore, made representation to the Governor of Sind, who granted his request and allowed him due seniority from the date of his actual appointment in the Province of Punjab. In the seniority list, dated 22nd November, 1978 of Excise and Taxation Inspectors, Grade 11 he was shown at serial No, 1 in the list consisting of 90 officers and the date of his appointment in Grade-11 was shown as 17th April, 1962.
3. ' After the seniority of the appellant was allowed in November, 1978 he was promoted on the basis of this new seniority to Grade-16 on 14th June, 1979 and thereafter to Grade-17 on 20th February, 1981. It appears that the appellant had made a representation, dated 12th January, 1981 before his promotion in Grade-17 to the Secretary, Excise and Taxation Department for pro forma promotion to Grades 16, 17 and 18 on the basis of his seniority, but no order appears to have been passed on the application. The appellant then retired on 5th January, 1982. Thereafter, he again sent a reminder, dated 10th August, 1982 and was informed with reference to his application, dated 10th August 1984 the Martial Law Administrator, Zone 'C' had not agreed to the relation of the condition of minimum length of 5 years' service in Grade-17 for promotion to Grade-18.
4. ' The appellant had also preferred a petition addressed to the then Governor M. L. A. Zone 'C' dated 3rd January, 1982 through his son Wing Commander Zaheer H. Zaidi. To this representation also a reply was sent through the S & G. A. D., dated 5th May, 1982 that M. L. A., Zone 'C' had not relaxed the condition of 5 years minimum service in Grade-17 for promotion to Grade 18 in favour of Mr. Zahoorul Hasan Zaidi. Against the decision of the Governor and M. L. A., Zone 'C' this service appeal has been preferred before this Tribunal.
5. ' In reply to the appeal a written statement has been filed on behalf of Exise and Taxation Department, Government of Sind. The pleas taken in the written statement are that the representation submitted by the appellant's son to the Governor of Sind in service matter of his father, is against the norms of service discipline. That it is not to be regarded as appeal permissible under the Civil Servants Act and consequently this appeal before the Tribunal is not maintainable under section 4 of the Service Tribunals Act and is also time-barred and liable to be dismissed.
6. ' It has then been stated that when the appellant did not revert to the Province of Punjab on dismemberment of One-Unit his service in Sind should ordinarily have commenced from 1st July, 1970. That it was in persuance of the order of the Governor of Sind that the appellant was promoted to Grade 16 and thereafter to Grade-17. That he could not be promoted to Grade-18 as he did not put in 5 years' service in Grade-17 as prescribed in the Notification No, SO-IX-REG (S & G A D)-II- 11/82, dated 23rd April, 1981.
7. ' Regarding the technical objection of non-maintainability and delay, the appellant has produced for the first time at this hearing photostat copies of letters to show that he had also represented to the department for promotion to Grade-18 and the reply was communicated to him on 31st August, 1982. The documents produced by the appellant were not included in the paper book and did not accompany his memo. Of appeal. It is true that the A. A.-G. Had no notice of these documents and no comments were offered regarding these documents in the written statement. In any case the memo. Of appeal was filed on 31st May, 1982 when the order on his representation was communicated to him on 31st August, 1982 long after the filing of appeal. If that letter is relied upon for communication of the impugned order on representation of the appellant himself, then this service appeal would appear to be premature and, therefore, not maintainable.
8. In this service appeal, however, the impugned order relied upon is of 5th May, 1982 on the representation of Wing Commander Zaidi. However, this procedure, to say the least, is irregular and has been commented upon in the written statement for obvious reasons.
9. ' Regarding the merits of the case the relief clause in the memo. Of appeal contains the following prayers :- "(a) To grant ante-dated promotions in Grades 16 and 17 with financial benefits.
(b) To grant forma promotion in Grade-18 with entitlement to Arrears say and allowances.
(c) To refix pay in respect of Grades (16, 17 and 18) for the purpose of pay and pension.
10. ' In respect of the first prayer asking for promotion with financial benefits from a particular date it may be mentioned that under section 4(b) this Tribunal has no jurisdiction to determine the question of promotion to a higher post or grade from an earlier date on the basis of the seniority in the seniority list.
11. With regard to the prayer for pro forma promotion in Grade-18 the appellant has already recieved the decision of the Governor that the rule of minimum 5 years duration in service in lower grade had not been relaxed in his favour. Any service rule prescribed can only be relaxed by the Governor c and in the absence of such order the Tribunal cannot allow the promotion to Grade-18. It is not within the powers of the Tribunal to relax service rules nor order promotions.
12. ' The last prayer is regarding refixation of pay in Grade 16, 17 and 18. The fixation of pay can only follow the promotions or pro forma promotions from earlier dates. .To fix the pay now when the promotions have not taken place would be like putting the cart before the horse. It has been pointed out that the case of the appellant for the purpose of seniority in Grades 16 and 17 should be considered by application of rule 13 of the Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975. Clause I of this rule provides that a civil servant who is not promoted on his turn on the ground that his seniority is under dispute or is not determined shall on subsequent promotion subject to any order made by the competent authority in this behalf for the purpose of inter se seniority in the higher grade, be deemed to have been promoted in the same batch as his juniors.
13. ' For application of this rule the appellant could have made a repre. Sensation to his departmental authority pointing out the date on which his junior had been promoted and the reasons why his promotion had not been made earlier. Under rule 23 of the civil Servants Act such a representation could be made within 30 days of the date of the order of his promotion. Obviously, this has not been done nor has the appellant made such representation within 30 days of his promotion to Grade-17 pointing out the date when his junior had been promoted to Grade-17. This plea cannot, therefore, be raised for the first time in this service appeal before the Tribunal. In any case any orders of the Department not allowing pro forma promotions in Garde 16 and 17 from earlier dates are not before the Tribunal.
14. ' Under these circumstances this Tribunal cannot allow any of the prayers mentioned above in the appellant's memo of appeal.
15. ' In the result the appeal is dismissed with no orders as to costs.