MUHAMMAD SIDDIQUE FAROOQI (CHAIRMAN).--The appellant through this appeal assails the order of Government, dated 5-2-1976, whereby Mr. Mahmood Ahmad Lodhi was promoted as Deputy Director, Local Government and Peoples Works Programme and order passed in review, vide No.Admin/A-18(1)/82, dated 30th December, 1982, whereby the earlier order of promotion was maintained. The appellant contends that he was a Development Officer in the Village, Aid Organization in 1963, when this Department was reorganized and for want of vacancy in the equivalent grade, he was reverted but in 1969, he was again promoted as Development Officer, Local Government. His appointment was also approved by the Public Service Commission and he worked on this post upto 1974, when he was promoted as Assistant Director, Local Government, vide order No. Admin/6041-48/74, dated 29-4-1974. The respondent No.2 had been also promoted to the post of Project Manager in the same department, vide order No. Admin. 2441-45/74, dated 6- 2-1974. According to the appellant. The promotion of respondent No.2 was on a temporary post of Project Manager, which was created for a limited period and was liable to termination on 15 days' notice when the work no longer existed. The appellant in view of his appointment on a regular post of Assistant Director was senior to the respondent whose permanent appointment was in grade 9, when the appellant was promoted as Development Officer, which carried a pay scale equal to present Basic Scale No. 16. The promotion of respondent No.2 was made from Grade 9 to 17 on 6-2- 1974, while the appellant was there on a post carrying NPS-16 and was also placed on a regular post of NPS-17 on 29-4-1974 as Assistant Director, Local Government. The respondent No. 2 is stated to have been appointed as Assistant Director Local Government in 1975. According to the appellant, at the time of passing of impugned order, dated 5-2-1976, the respondent No.2 as well as the appellant were holding the post of Assistant Director, therefore. Both of them should have been considered and on the basis of seniority of the appellant, as Assistant Director, the appellant deserved preference for promotion over the respondent, hence the order was illegal, having been passed without considering the appellant.
2. The respondent contended that holding of any particular post carrying the pay scale below NPS- 17 was not material for consideration, when the promotion was sought to be made to the post of Deputy Director, which-was carrying NPS-18. The respondent pleaded that the appellant was considered for promotion for the post of Project Manager, alongwith him and some other officers but he was not found fit for promotion while the respondent No.2 and that two others namely; Mirza Muhammad Akram and Qazi Faizyab from the department alongwith the appellant were considered fit for promotion to the post of Project Manager. To substantiate the assertion, he has relied on the minutes of the Selection Board, dated 24-12-1973. Four vacancies of Project Managers existed at that time for which persons including the appellant were considered, and the name of the appellant appeared at the top of the list of persons considered but it finds no place in the list of the persons found fit for the post, therefore, according to the respondents, he was found unfit for promotion to post carrying NPS-17. Later on the appellant was promoted as Assistant Director, Local Government on 29-4-1974, without the approval of any competent Selection Authority. The learned counsel for the respondent No. 2 contended that the promotion of appellant even to a post of NPS- 17 was not regular because under the provision of Rule 17(c) of Rules of Business, 1971. The promotion to the post of Assistant Director could have been fiade only through the Public Service Commission; therefore he could not claim any seniority on the basis of irregular appointment as Assistant Director, even if it is presumed, though not conceded that he was placed in this grade earlier than respondent No. 2. It was contended that for the purpose of seniority, the designation of a post is not a material, rather it is the pay scale, which has a bearing for the purpose of determination of seniority.
3. According to the counsel for the respondents, Mr. Mahmood Ahmad Lodhi was promoted to a post in NPS-17 on 6-2-1974, while the applicant was promoted to a post with the identical grade on 29-4-1974, therefore, respondent No.2 was senior to the appellant, because both the posts were in the same department. Since the appellant was superseded, when considered for promotion to a post carrying NPS-17 by the Selection Board: constituted by the Government for the purpose, he could not claim any superiority nor seniority in the matter of promotion to NPS-18. The counsel for the Government as well as the respondent No. 2, vehemently argued that the appeal of the appellant was hopelessly time-barred before the Government, therefore, it will be presumed that he failed to avail of the appropriate available remedy before the Government, hence the appeal before the Service Tribunal is not competent.
4. We heard the learned counsel for the parties and perused the record. In light of the pleading and arguments, following points need determination:-
(a) Is the appeal competent before the Tribunal in view of the fact that the appellant did not prefer a review petition before the Government, within the period of limitation, prescribed for such petition'
(b) Whether the post of Project Manager was of a temporary nature and what is -i s effect on this case.
(c) Whether the appellant having been considered unfit for promotion to the post of Project Manager in NPS-17 has no claim for seniority over the respondent No.2?
(d) Whether in view of the fact that the post of Deputy Director having been created alongwith the post of Project Manager with similar conditions for the purpose of promotion to this post, the nature of appointment of appellant and the respondent No.2, was not material?
5. With regard to the competence of appeal to this Tribunal, it has been argued by the learned counsel for the respondents that order of promotion of respondent No.2 was passed on 5-2-1976 and copy of review petition placed on file as Exh.PB/1, by the appellant, bears the date as 25-5- 1976. The order, dated 30-12-1982, whereby the review petition of the appellant was dismissed, also indicates that the review petition of the appellant was, dated 25-5-1976. In the memorandum of appeal, the appellant nowhere mentioned that he had preferred the review petition to the Government on any date earlier than 25-5-1976. The objection to the competency of appeal was raised by the respondent No.2, specifically in written statement on the ground of his review petition, being time-barred. The appellant' submitted his replication, dated 19-6-1983, on 20-6-1983 before this Tribunal. In the replication, he did not mention that the date of his review petition as incorporated in the copy of petition filed by him alongwith the memo. Of appeal or in the order, dated 30-12 1982, under appeal was incorrect. He had made the reference to paragraphs 9, 10, 11 and 12 of his memorandum of appeal and maintained that in view of these paragraphs, the objection of the respondents was baseless. Photostat copy of review petition purporting to have been signed by the appellant was also annexed with the written statement, in which the date indicated in typing was 21-6-1976, while the date under the signatures of appellant was 22-5-1976 The appellant in reply to the objection submitted that actually the application for review was submitted on 21-4-1976 and it was the advance copy which was sent later on with the signature, dated 22-5-1976 and according to the appellant, the typed date 21-6-1976 was incorrectly typed.
The learned counsel for the appellant in alternative submitted that delay can be condoned by the Tribunal. He cited NLR 1978 S.T. 538 and 1979 PLC (C.S.) 35 Khawaja Muhammad Saeed, learned Advocate for the appellant submitted that review petition of the appellant remained under active consideration in 1976, therefore, the appellant did not feel advised to approach this Tribunal with the appeal against the Government order, dated 5-2-1,976 and according to him the present appeal against the final order, dated 30-12-1982 is not hit by limitation. He persuaded us without formal application to condone the delay, if any, involved in filing of the review petition before the Government. He asserted that the review petition of the appellant was decided on an application of the appellant, made to the Government on 15-3-1982 in which the date of reveiw petition shown by the appellant was 21-4-1976, which has been placed on the file of this Court as Exh. P.B. It may be noted that Exh. P.B. Is an application, made by the appellant himself and is not a copy brought from the record. Moreover, an application made on 15-3-1982 giving any date of the earlier review petition is in no way convincing for us. A litigant, if kept sleeping at the proper stage, makes an application after a number of years, and gives any date in the subsequent application in respect of the earlier proceedings, that is in no way relevant in the circumstances of this case. The appellant is author of application, dated 15-3-1982. He cannot corroborate himself by an evidence later on created by him. The appellant stated that his review petition presented earlier was under process when the Government of Khan Abdul Hamid Khan, ex-Prime Minister was dissolved/ resigned but that file had been misplaced and is not traceable in spite of the efforts. The material available for determining the date of review petition of the appellant is:-
(a) Copy of the review petition, placed by him on record with the memorandum of appeal Exh. P.B.
And also tendered in evidence.
(b) Copy of application, dated 15-3-1982.
(c) Photostat copy placed on file by the respondent alongwith the written statement, original of this photostat copy is also available on another file, bearing No.1021 title "appeal of Abdul Rashid Butt against order of promotion of Mahmood Ahmad Lodhi".
(d) Order of the Government, dated 30-12-1982.
(e) The pleadings of the parties.
It appears that previous review petition of the appellant is not traceable and proceeding for review have been initiated on an application of the appellant, submitted on 15-3-1982. The appellant as well as respondent No.2 were turned out by the service by the previous Government. The Service Tribunal accepted the appeals of these two officers. The appellant was re-instated earlier who moved application, dated 15-3-1982 for the consideration of his review petition. In this application for the reference, he stated the date of his review petition as 21-4-1976. Except this, there is no other record to support his assertion that the review petition was in fact preferred on 21-4-1976. B This application has been presented almost six years after the alleged review petition; therefore, this cannot serve as evidence to determine the date of the original review petition. The review petition traced out from the record bears two different dates. The typed date is 21-6-1976, while the other under the signatures of the appellant is 22--5-1976. According to the appellant, he had submitted this review petition as an advanced copy and he clarifies that the typed date was in fact incorrectly typed as 21-6-1976 instead of 21-4-1976 and that he had put in the date 25-5-1976, when he submitted the advance copy. It may be noted that appellant nowhere mentioned that he had submitted any review petition earlier than one bearing these two dates. In the Government order, dated s0-12-1976, the date of petition has been mentioned as 25 -5-1976 and the copy of the review petition attached by the appellant with the memorandum of appeal as Anhexure Exh.P.B/1 bears the date 25-5--1976. In the memorandum of appeal, it is nowhere alleged by the appellant that his review petition was in fact presented on 21-4-1974. The respondent took specific objector, to the competence of appeal on the score of limitation in the matter of review petition but the appellant in his replication, dated 19-6--1983 made evasive observations with a respect to this preliminary objection, He referred to paragraphs 10, 11 and 12 of his memorandum of appeal, in this respect, We have gone through the memorandum of appeal, the relevant paragraphs are reproduced below: The reading of the above portion of memorandum of appeal does not show that he had ever controverted the date of presentation of his review petition, against the Government order, dated 5-2-1976 His omission to clarify his position with respect to limitation in memorandum of appeal, as well as in the replication makes it clear that he has no material to support his contention about the review petition, having been filed in time. The appellant coming to this Court has to satisfy us that he had restored to the remedy available to him, under the relevant service rules, before the appropriate authority, within the prescribed time. The material which the appellant himself placed on the file at the time of presentation of appeal, in the Tribunal and later on relied upon &6 evidence viz. Exh.P.B/1, rebuts the assertion of the appellant and uptill the date of arguments, no attempt was made to show that he had presented his review petition at any time earlier than the dates, when in the record himself placed on the file of this Tribunal. Thus, the conduct of the appellant shows that he has been negligent throughout and that he had no explanation whatsoever to afford in this behalf, before this Tribunal. We could not find any provision for extension of time, prescribed for making review petition, before the departmental authority. The appellant's negligent attitude also does not pursue us to take any lenient attitude, in the matter of limitation. The contention of the learned counsel for the appellant that the Tribunal has power to grant extension also does not befit in the circumstances of this case. We can extend time in the case of a belated appeal before this Tribunal, only when we are satisfied that the appellant had never been negligent but the circumstances of this case warrant no extension, in view of what has been stated by us, hereinbefore. Khawaja Muhammad Saeed, Advocate for the appellant argued that the Tribunal can condone the delay and he cited 1986 SCMR 1086 and 1979 PLC (C.S.)
35. In the case Syed Ali Hassan Rizvi v. Islamic Republic of Pakistan 1986 SCMR 1086, the delay has not been condoned by the Supreme Court, rather it' has been observed that the case was not fit for condonation of delay in view of the fact that Tribunal finding the appeal as time-barred, had acted ,within jurisdiction and there was no occasion for interference by the; Supreme Court. In the other case namely M. Ayub v. I-G. Sind and others 1979 PLC (C.S.) 35, the Service Tribunal condoned the delay involved in filing the appeal in the Service Tribunal on the ground that the delay was due to the gross negligence of the counsel, engaged by the appellant and in the circumstances of that case, the appellant could not be made to suffer for such negligence of his counsel. The question of delay involved, in the present case does not relate to the appeal brought in this Tribunal, but it concerns the delay, in filing the review petition, before the departmental authority. In view of the facts of this case, the authorities, quoted by the learned counsel for the appellant, are not applicable. On the other hand, Raja Muhammad Hanif Khan, Advocate for respondent No. 2, cited 1982 PLC (C . S .) 748 wherein it has been observed as under at page 750:- "The impugned order was - passed on 24-6-1981 and the departmental appeal was preferred before the Accountant-General on 21-9-1981 i.e. 27 days after the expiry of prescribed limitation of sixty days from the date of communication. The appellant has nowhere alleged that impugned order was communicated to him on any particular date from which date, the appeal falls within limitation. In the absence of any such assertion in the memorandum of appeal or any affidavit in support thereof the only inference that may reasonably be drawn under the circumstances of this case is that the impugned order was communicated to the appellant on the same day or at the best soon after that day and not after 27 days of making the impugned order. As such, the appeal clearly falls beyond limitation fixed under section 21 of the Civil Servants Act, 1975 and Article 49 of the K.S.R. Is not applicable in this case as the Civil Servants Act has clearly replaced the K.S.R. In, respect of all the matters started in the said Act and the argument of the learned counsel for the appellant does not hold good as discussed above.
Hence in the light of the above discussion, the appeal suffers from the abovementioned legal flaws which are fatal to the appeal calling for the dismissal of the same."
In the second case, quoted by the learned counsel for the respondent namely; 1983 PLC 50, it has been observed as under at page 51:-- "Secondly, if for argument sake it be assumed that an appeal could legally lie in the present case then the same should have been filed within 60 days of the impugned order as provided under rules but according to the appellant an appeal was filed somewhere in 1976 (the order of rejection of departmental appeals, dated 18th April, 1979 speaks that departmental appeal was filed on 14th August, 1977) and that too against an order of the then Minister as is clear from Annexure 'A-8' filed by the appellant in support of his contention. This stand of appellant is belied by the fact that the impugned order was passed by the President and not by any Minister. Moreover, if the assertion of the appellant be presumed to be correct that the appeal was filed beyond the prescribed limitation of sixty days for filing departmental appeals, the record does not indicate that the competent authority even condoned the delay in filing the departmental appeal. As such unless the delay was condoned for sufficient reasons, a belated appeal could not be entertained legally by the departmental appellate authority with the consequence that present appeal before the Service Tribunal is incompetent as in the circumstances of this case it shall be deemed that no departmental remedy was availed of before filing the present appeal."
In our opinion, both these authorities support the contention of the learned counsel for the respondent that delay in filing the case before the departmental authority is fatal to the appeal, before the Service Tribunal.
The appellant made an application for the summoning of the Receipt and Despatch Registers from the Secretariat and the Directorate of Local Government on the day following arguments.
Summoning of record at this stage is not proper. The Court haw to do justice to both the parties and it cannot lean in favour of party to fill in the lacuna left by him in his case. Apart from this, the summoning of additional evidence in the form of production of Receipt and Despatch Registers, whose contents are not known to us is only a wastage of time. Furthermore, the evidence is generally produced in order to support l) the pleading of either of the parties. When the pleading on behalf of the appellant is silent, the additional evidence, even if produced, cannot be generally looked into. The evidence is produced to prove or disprove an assertion or averment made in the pleading and not the facts which have not been taken up as a ground of attack or of defence by either of the parties in the pleading, rather the law provides that no evidence can be looked into by the Court, which is. On a point beyond the pleading. For this we may refer to v L D 3.961 Kar. 255.
Therefore, the Registers cannot be summoned at this stage. As upshot of the above discussion on the point of limitation, we are constrained to hold that the appeal is riot competent for the reason that the appellant had not availed of the appropriate remedy before the departmental authority, within the time prescribed by law.
The other points involved in this case are somewhat interlinked and carry much importance in view of the fact that identical question of seniority in respect of temporary or permanent service in a department may have bearing on many other cases. Therefore, these points need a lot of study.
The learned counsel for the parties do not seem to have argued these points properly. For instance, the Advocate for the appellant referred to PLD 1973 SC 497 caption 'D' to support the contention that temporary service does not count for seniority. The para quoted by him is oh page 504 which is reproduced as under:- "From the provisions embodied in clauses (1) (a) and (2) of rule 14, it becomes abundantly clear that the inter se seniority of direct recruits is to be determined according to the date of their continuous appointment to the post or grade concerned, and not by the fact whether any one of them was initially appointed against a temporary or a substantive post. On this view of the matter, it was not at all necessary for the High Court to investigate the question, whether the respondent Sumbal had been appointed against a temporary or a substantive post. This issue was unnecessarily raised by the petitioner by reference to instructions which were not applicable to the case."
The plain reading of this portion of the citation will make it clear that it is not applicable to his .
Case and at any rate, if stretched on any side, it can help other party and not the appellant. In view of this state of affairs, it will not be proper to dispose of other points, on the basis of such arguments lest the parties in other cases may be prejudiced. So for as this appeal is concerned. It meets its fate on the basis of our finding on the first points, irrespective of any finding on other points.
As already held, the appeal is incompetent and the same stands dismissed, with no orders as to the costs.