1. ' MUNAWAR ALI KHAN (CHAIRMAN).--The appellant Muhammad Abdul Sattar Qureshi, has filed the present appeal with prayer contained in para. 22 of the memo of appeal, which reads as under:- "22. The appellant prays that the Honorable Tribunal may be pleased to:-(a) admit the appeal; (1)) call for from respondents Nos. 1 and 2 the record relevant to the points in issue in this appeal;
(c) after hearing the parties, set aside the seniority list dated 16-3-1983 so far as it relates to assignment of seniority position of the appellant vis-a-vis respondents Nos. 3 to 11 and order/direct that the appellant be assigned seniority in the cadre of Agricultural Engineer/Grade-18, over respondents Nos. 3 to 11 with consequential benefits;
(d) direct/order respondents Nos. 1 and 2 to consider appellant eligible for his promotion to Grade- 19 irrespective of method, qualifications and other conditions of appointment to the posts in the Directorate of Agricultural Engineering, Sind, as prescribed by the Notification dated 15th September, 1982, holding the same inapplicable in the case of the appellant and/or striking down the Method of Appointment/Promotion to the post of Director, Agricultural Engineering Grade-19, as appearing at Serial No, 1 of the said Notification; (e)further direct respondents Nos. 1 and 2 to process the appellant's case for his promotion to Grade-19 on the basis of seniority-cum-fitness and in accordance with 1965's Method of Appointment/Promotion;
(f) pass any other/further order which the Honorable Tribunal deems fit and appropriate in the circumstances of the case; and (g)award costs of this appeal to the appellant."
2. ' As is clear from clause (c) hereinabove the appellant has prayed for setting aside the seniority list dated 16-3-1983, as it relates to his seniority vis-a-vis respondents Nos. 3 to 11 and for placing him above the said respondents in the said seniority list. In the following clause (d) his prayer is that direction be issued to respondents Nos. 1 and 2 (Chief Secretary Government of Sind and Secretary, Agricultural Department, Government of Sind) that the appellant be considered for promotion to Grade-19 irrespective of the conditions of appointment to the said posts as prescribed in the Notification dated 15th September, 1982. In fact these two are the material prayers made by the appellant.
3. ' The brief account of the circumstances in which the above prayers have arisen is given in the memo of the appeal, as follows. The appellant who obtained Diploma in Mechanical and Electrical Engineering from Karachi University in 1958 entered Government service as Assistant Agricultural Engineer on 16-2-1963, following his selection by the West Pakistan Public Service Commission.
4. From 15-5-1973 to 12-11-1980 he was deputed to serve the Government of Nigeria. During his absence, a number of his juniors were promoted to Grade-18. After his repatriation, he too was promoted to the said Grade by Notification No, 10(2)-S.0.(A111)/81, dated 19th April, 1981 in which it was also made clear that the appellant would retain his seniority within the meaning of rule 13 of the Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975. Accordingly he was assigned a correct seniority position by placing him above respondents 3 to 11 in the Seniority List of Agriculture Engineers (Grade-18) as it stood on 31-1-1982. However, in the seniority list subsequently issued vide memo No, 4(134)S.O. (A.III)/81, dated 16-3-1983, the appellant was shown junior to the aforesaid respondents. Aggrieved by the last mentioned seniority list he filed objections against the same before the Secretary, Agriculture Department but without any result. Meanwhile in 1982 the method of appointment to the post of Superintending Engineer (Agriculture Machinery)
5. (Grade-19) was changed to the disadvantage of the appellant as unlike the previous procedure, the appointment was to be made from amongst Deputy Directors/Agriculture Engineers possessing a degree in Mechanical Engineering or B.Sc. (Hons) in Agriculture Engineering or D.E.
6. Agriculture etc. The appellant preferred representation/appeal dated 30-9-198i to the respondent No, 1 (Chief Secretary), which was rejected by the latter by his order dated 21-7-1985. After the said order was communicated to the appellant on 4-8-1985, under Director, Agricultural Engineering Sind's No, DAE/E(G-54)/2529/85, dated 28-7-1985, he filed the present appeal.
7. ' We heard the arguments of the parties and their counsel elaborately. With their assistance we also glanced through the relevant record.
8. ' As stated above the appellant's first grievance is with regard to the seniority position assigned to him in the seniority list issued on 16-3-1983. The memo under which the said seniority list was issued reads as under:- "SUBJECT: TENTATIVE SENIORITY LIST ' The Minister, Food and Agriculture, Government of Sind, has constituted a Committee so as to consolidate the Seniority List. Accordingly as per data available in the department a tentative seniority list has been prepared. A copy of the same is enclosed for your information. If you have any objection, please intimate the correct position supported with documentary evidence within a period of 15 days of issue of this letter. If no reply is received from you, it will be presumed that you have no objection.
9. ' This Department's letter No, 4(134)S.0.(A.110/81, dated 14-3-1983 containing the Seniority List authenticated by the Director, Agricultural Engineering, Sind Hyderabad is hereby cancelled."
10. ' It is clear from the above memo that the earlier Seniority List issued under the letter dated 14-3- 1983 was cancelled. It further shows that the Minister Food and Agriculture had set up a Committee for consolidating the Seniority List and therefore meanwhile tentative seniority List was circulated inviting objections from those dissatisfied with the list within 15 days of the issuance of the memo failing which it was to be presumed that there was no objection to the authenticity of the contents of the List. Since the appellant was dissatisfied with the seniority position assigned to him in the above seniority list, he was free to file his objections within a period of 15 days from the issuance of the list. As stated by him in para. 10 of his memo of appeal the appellant did file the objections as per Annexure 'U. We have perused this annexure which is addressed to Secretary, Agriculture Department. However, it does not bear any date. The appellant has not mentioned even in his memo of appeal on what date he had filed his objections. As against this, the written statement filed on behalf of the official respondents shows (vide paras. 10 and 11) that the objections filed by the appellant were dated 4-5-1983 and were received on 9-5-1983. Accordingly the respondents' plea was that the appellant's representation was time-barred. May be the appellant's objections were not considered on the ground of limitation. However, there is no indication on record that such intimation was conveyed to the appellant.
11. It is admitted even by the appellant himself that the impugned seniority list against which his present appeal is directed is only tentative. It has not been finalized so far. Had it become final during pendency of the appeal, the appellant would have either filed fresh appeal or moved for amendment of the pending appeal. As provided in section 4 of the Sind Service Tribunals Act, 1973, this Tribunal can exercise its jurisdiction only when appeal is brought before it against final order, original or appellate. But the Seniority List impugned in the present appeal was admittedly only tentative. It was yet to be finalized. As pointed out above even the objections filed by the appellant against the tentative Seniority List were time-barred. Therefore, the question arises if the present appeal which is against tentative Seniority List is maintainable. In this connection we may refer to the case reported as S.H.M. Rizvi v. Maqsood Ahmad PLD 1981 SC 612 wherein the Supreme Court was pleased to hold as under:- "Right of appeal has been conferred by subsection (1) of section 4 only against a "final order whether original or appellate". A final order has the distinction of determining the rights of the parties. Where any further step is necessary, to perfect an order, in this case the disposal of the objections received or finalization of the provisional seniority list, the order cannot be taken to be final. An order may be final, if it determines the rights of the paitties, concludes the controversy so far as a particular authority or forum is concerned notwithstanding that such an order may be open to challenge in appeal etc. This aspect of the concept, of the finality of an order has been taken care of by adding the words "whether original or appellate" in the enacted law itself 10 The proviso (a) to subsection (1) of section 4 of the Service Tribunals Act relied upon by the learned counsel for the respondent has not the slightest effect of detracting from the finality of the order to be appealed against. What it accomplishes is that even a final order should not be brought before the Service Tribunal if a right of appeal, review or representation to a departmental authority is provided under the law, unless that right has been availed of and the specified number of 90 days has elapsed without a substantive order."
12. In view of the above authority since the appeal is not directed against the final Seniority List, it is premature and as such it is hit by section 4 of the Sind 1 Service Tribunals Act, 1973.
13. ' Assuming for the sake of argument that the Seniority List impugned in this appeal was final Seniority List, in that case the appellant was required to challenge it in departmental appeal within 30 days of the publication thereof. As stated above, it was issued on 16-3-1983 but it is the appellant's own admission that he preferred appeal to the Chief Secretary on 30-9-1984. Such belated appeal cannot be treated as a departmental appeal in the eye of law. Even the fact that the Chief Secretary rejected the appeal filed by the appellant and that the appellant was intimated about the rejection of his representation/appeal on 4-8-1985 wou1d not in any manner alter the above legal position. As provided in section 23, Sind Civil Servants Act, 1973, the Appellate Authority (Chief Secretary in this case) had no power to extend the limitation period of 30 days fixed for tiling any departmental appeal, review, or representation. Therefore, even if the Chief Secretary had entertained the belated appeal, it was of no legal consequence. Accordingly even if we assume the impugned seniority list to be final seniority list, still the present appeal would not be maintainable because the requisite departmental appeal was not filed within time.
14. ' As for the appellant's second prayer that direction be issued to the official respondents that he be considered for promotion to Grade-19 irrespective of the changes made in the method of appointment to such post, it would suffice to say that the prayer looks rather preposterous. The impugned change in the method of appointment to the posts in Grade-19 was admittedly made by Notification No, 1(79)S.0.(A.111)/78 Eng. Dated 15-9-1982. Despite the fact that the appellant felt aggrieved by the said change, he obviously slept over the matter and remained quiet for two years, as he preferred appeal to the Chief Secretary on 30-9-1984. The appeal filed after such inordinate delay could not be treated as departmental appeal in the eye of law. Even otherwise the above notification by which the change in method of appointment to the posts in Grade-19 was notified did not by itself provide any cause of action to the appellant.
15. ' The argument of the learned counsel for the appellant was that above change could not have retrospective application but it would apply prospectively. Clarifying his argument further the learned counsel submitted that the said change in the rules would not be applicable to the appellant who had joined Government service long before it came into being. In para. 19 of the written statement filed on behalf of the official respondents it is clearly stated that "the amended method is not being enforced retrospectively but it is applicable from the date of notification". This reply should have satisfied the learned counsel for the appellant because all he wanted was that the change in the method of appointment should not be applied retrospectively. But instead the learned counsel insisted that we should strike down the amended rule as illegal and inoperative. In view of his own argument that the amended method of appointment would have prospective application, the question of holding the said amendment as illegal or inoperative would not arise.
16. Of course it would be held invalid if it was shown to be inconsistent with the law/rules under which it was made or was in any way ultra vires of the Constitution. But that is not the case of the appellant. Merely because the appellant would be adversely affected in future when his turn came for promotion to Grade-19 post, was absolutely no reason to strike down the said amendment as illegal and inoperative.
17. ' Apart from above, nowhere throughout the memo of his appeal the appellant has taken a plea that he has actually been adversely affected by the change in the method of appointment to the post in Grade-19. He has only expressed his apprehension with regard to his future prospects of promotion. Obviously we have no jurisdiction to grant him relief in regard to a thing which has not yet taken place. It was only after he was actually ignored for promotion on the basis of the amended method of appointment and instead his junior was preferred on the same basis that the appellant would have some justification to say that cause of action had accrued to him for agitating against the said amendment. Till then his prayer for the said direction was entirely misplaced and premature.
18. ' In view of the above discussion, the appellant has no cause of action for his both prayers and as such the appeal is dismissed with no order as to costs.