' CH. A. RAHMAN KHAN (MEMBER).--S.A. Kureshy, ex-Financial Adviser (DP), Finance Division Military, the appellant, has come in appeal under section 4 of the Service Tribunals Act, 1973 regarding payment of arrears of his pay and allowances for the period from 14-7-1977 to 28-1-1980.
2. The facts of the case are that the appellant who was an officer of Military Lands and Cantonments Group in B-19 was selected by the Central Selection Board on the basis of selection on merit for appointment as Joint Secretary (B20) in the Federal Secretariat Group on 24-3-1977 along with Mr. Abdul Jalil Khan and Malik Muhammad Siddique. The competent authority approved their selection on 5-5-1977. Abdul Jalil Khan being the senior most among the three followed by the appellant was first appointed as Joint Secretary vide Notification No, 28/3/77/A-1, dated 4-7-1977.
However, Abdul Jalil was subsequently posted as Director, Military Lands and Cantonments (8-20) vide Notification No, 5/6/77-Al, dated 12-9-1977. The earlier notification in his case was cancelled.
Malik Muhammad Siddique who was junior most amongst the three colleagues was first appointed as Joint Secretary, Cabinet Division vide Notification No, 1/1/77-Al, dated 5-7-1977 which was cancelled. He was, later on posted as Joint Secretary, Overseas Pakistanis' Wing of the Ministry of Religious Affairs and Overseas Pakistanis vide Notification No, 28/3/77-Al, dated 4-7-1977. The appellant even though senior to Malik Muhammad Siddique was not promoted either as Joint Secretary or against any other equivalent post till 26-1-1980. He took over as Director (Finance)
Pakistan Tourism Development Corporation on 29-1-1980 vide Notification No, 5/1/80-Al, dated 26- 1-1980.
2-A. It was submitted by the appellant in person that during the period from 14-7-1977 to 28-1-1980, the appointment of the appellant to officiate as Joint Secretary (B-20) in the Secretariat Group was withheld due to the fact that the Establishment Division considered the selection of all the three officers of the Cantonment Group as irregular. It was further submitted that as a result of the Review Board proceedings under section 12-A of the Civil Servants Act, 1973, the Establishment Division made efforts to revert Malik Muhammad Siddique who was junior to the appellant to his original post in Grade-19 in his parent department. It was contended by the appellant that since the case of Malik Muhammad Siddique did not fall under the purview of the Review Board, he was not reverted on the advice of Justice Division. Malik Muhammad Siddique was promoted as Joint Secretary on 14-7-1977 whereas the Review Board was to consider the cases which related to the appointments/promotions made during the period from 1-7-1972 to 5-7-1977 only. It was contended by the appellant that since two of his other colleagues who were selected by the same Central Selection Board stood promoted as Joint Secretaries the case of the appellant could not be treated in a manner less favorable to him as compared to his junior Malik Muhammad Siddique.
The appellant was, therefore, eventually appointed as Joint Secretary (B-20) by the order of President of Pakistan under section 23 of the Civil Servants Act, 1973 with effect from 29-1-1980.
3. The appellant in person submitted that on assuming the charge of the office of the Joint Secretary (13-20) in the Federal Secretariat Group, he made a request to the Establishment Division that he should also be allowed his arrears of pay and allowances with effect from 14-7-1977 to 28- 1-1980 the period for which his junior Malik Muhammad Siddique was appointed as Joint Secretary (B20). However, the Establishment Division vide their letter No, 5/1/80-Al, dated 24-2-1980 informed the appellant regarding fixation of his pay by the A.G.P.R. After taking into account the period between the date of appointment of Malik Muhammad Siddique i,e, 14-7-1977 and the date on which the appellant took over the charge in B-20 i,e, 28-1-1980 towards increments only but did not allow the arrears of pay and allowances for the said period. The letter No, 5/1/80-A1, dated 24-2- 1980 is reproduced below:- "Subject:- Appointment of Mr. SA. Kureshy as Director (Finance), Pakistan Tourism Development Corporation in Grade-20.
' Sir, ' I am directed to say that Mr. SA. Kureshy was appointed as Joint Secretary and his services were placed at the disposal of the Tourism Division for appointment as Director (Finance), Pakistan Tourism Development Corporation in Grade-20 vide Establishment Division notification of even number dated the 26th January, 1980. He assumed the charge of that post on 29-1-1980.
2. His appointment has been made by the President under section 23 of the Civil Servants Act, 1973 in view of the appointment of his junior to the post of Joint Secretary with effect from 14-7-1977. As such, his pay will be fixed after taking into account the period between the date of appointment of Malik Muhammad Siddique and his own taking over of charge towards increment."
' Furthermore, it was submitted that on the request of the appellant, his seniority was also restored correctly vide Cabinet Division No, 5/1/80-Al, dated 4-3-1980 which is reproduced below:- "Subject:- Appointment of Mr. S.A. Kureshy as Director (Finance) Pakistan Tourism Development Corporation in Grade-20.
In continuation of this Division endorsement of even number dated the 24th February, 1980 on the above subject, Mr. SA. Kureshy is informed that he will get seniority with reference to the date of appointment of his immediate junior Malik Muhammad Siddiq, i,e, his name will be placed immediately above the name of Malik Muhammad Siddiq."
4. It was strongly contended by the appellant in person that in Appeal No, 24(R) of 1981 in the case of M.S. Bhatti v. Secretary, Establishment Division it was declared that he stood promoted to the higher post with effect from the date his junior was promoted and was given all consequential benefits. In the case of the appellant his promotion was ordered by the President of Pakistan on the principles of equity and justice under section 23 of the Civil Servants Act, 1973. The equity and justice, therefore, demand that the appellant should also not be denied his right to claim full pay and allowances for the period from 14-7-1977 to 20-1-1980. His promotion was delayed in spite of his vested right of promotion as Joint Secretary (B-20) for no fault of his own. Throughout this period, the appellant had agitated his case verbally and in writing at various levels but with no response. The appellant finally addressed the D.O. Letter to the Additional Secretary, Establishment Division (Mr. A.R. Siddiqi). When there was no response to his D.O. Letter No, 699/FA(DP)/84, dated 21-6-1984, the appellant preferred an appeal before the Tribunal on 6-1-1985. It was further submitted by the appellant in person that under the circumstances when he was diligently and sincerely following his case, his application for condonation of delay under section 5 of the Limitation Act, 1908 may he acceded to by the Tribunal. It was strongly contended that the arrears of his pay and allowances with effect from 14-7-1977 to 28-1-1980 may be paid to him together with the profit on the accumulated sum due to him at the usual compound rate of interest as prevalent.
5. The learned counsel for the State submitted that the appellant's name was recommended by the Central Selection Board held on 24-3-1977 for appointment as Joint Secretary alongwith two other officers, Abdul Jalil Khan and Malik Muhammad Siddique. The appellant was placed senior to Malik Muhammad Siddique. Whereas Malik Muhammad Siddique was appointed as Joint Secretary with effect from 14-7-1977, the case of promotion of the appellant could not be finalised simultaneously for administrative reasons. Meanwhile, due to imposition of Martial Law in July, 1977, review of all the cases of promotions/appointments was ordered under section 12-A of the Civil Servants Act, 1973. His case of promotion was, therefore, kept pending. Whereas under normal rules, the appellant could not have claimed his promotion and appointment in the Secretariat Group, the appellant was promoted and appointed as Joint Secretary with effect from 29-1-1980 under section 23 of Civil Servants Act, 1973. The appellant was later granted seniority with reference to the date of appointment of his immediate junior, Malik Muhammad Siddique and was placed immediately above him vide letter No, 5/1/8-A1, dated 4-3-1980. His pay was fixed after taking into account the period between the date of appointment of Malik Muhammad Siddique and his taking over of the charge towards increments vide Establishment Division letter No, 5/1/80-Al, dated 24-2- 1980.
6. It was strongly contended by the learned counsel for the respondents that the appellant made no representation for grant of arrears of pay at this stage within the stipulated period of thirty days.
However, after a lapse of about three years he submitted an application dated 18-4-1983 to the Secretary, Establishment Division in which he requested for antedating of his promotion and grant of arrears of pay. From the date of submission of this application i,e, 18-4-1983 the period of ninety days expired on 7-7-1984. The appellant could have filed his appeal before the Tribunal by 6-8- 1984 i,e, within the stipulated period of 120 days in case of non-receipt of reply to him but he failed to do so. He, however, instead of filing an appeal before the Tribunal addressed a D.O. Letter dated 21-6-1984 to the Additional Secretary, Establishment Division. His present appeal was filed on 6-1- 1985 after a lapse of 272 days counted from the date of his application dated 18-4-1983 and 152 days after the expiry of the stipulated period of 120 days available to him after making the said application to the Secretary, Establishment Division. It was strongly contended by the learned counsel for the respondents that the appellant in his application for condonation of delay has not explained the delay of even a single day in filing the present appeal which is mandatory as held in the case of Government of Baluchistan v. Abdul Nabi and another 1988 SCMR 1906.
7. It was, further, submitted by the learned counsel for the respondents that the appellant had no case to claim his promotion as Joint Secretary in the Secretariat Group because under the existing rules he could not have been appointed as Joint Secretary on promotion from outside the cadre.
He first had to be promoted in the Cantonment Group and only then his case for appointment as Joint Secretary in the Secretariat Group could be considered. However, since his case was approved by the President of Pakistan under section 23 of the Civil Servants Act, 1973, he was appointed as Joint Secretary in the Secretariat Group as a special case. The appellant was granted the admissible concessions based on the principle of equity and justice i,e, he was allowed his seniority and was granted the increments of pay while adjusting his salary as Joint Secretary in B- 20 as compared to Malik Muhammad Siddique, his junior. It was submitted that the case of M.S. Bhatti v. Secretary, Establishment Division (Appeal No, 24(R) of 1981) is not identical to the case of the appellant. M.S. Bhatti was eligible for consideration and appointment as Deputy Secretary under the normal rules. It was strongly contended that the appellant was not entitled to claim any benefit on the basis of a wrong precedent of irregular appointment of Malik Muhammad Siddique and also by virtue of his own appointment made under section 23 of Civil Servants Act, 1973. It was, therefore, contended that the appeal may be dismissed as being incompetent and hopelessly time-barred.
8. We have perused the record produced before us and also given our anxious thoughts to the arguments of both the parties. We are of the considered view that due to the special circumstances that prevailed in the country as a result of the imposition of Martial Law, the case of promotion of the appellant could not be finalized along with that of his junior, Malik Muhammad Siddique. Since the selection of the appellant along with his colleagues was irregular for appointment as Joint Secretary in the Secretariat Group under the existing rules, his case had to be approved for promotion by the President of Pakistan under section 23 of the Civil Servants Act, 1973.
We are convinced that the appellant has been allowed the permissible concessions of seniority as well as the grant of increments. We are of the considered view that the appellant could claim arrears of pay only if he had worked against the post of a Joint Secretary (B-20) during the period from 14-7-1977 to 28-1-1980. Alternatively, the respondents could have created a new job for the appellant for the period in question so that he could be shown working against a B-20 post. In the absence of any such arrangements we do not consider it appropriate to allow the arrears of pay to the appellant. We also do not consider it appropriate at this belated stage to ask the respondents to create a post of B-20 for the period in question because in our opinion, it is unsound on administrative ground. There is an application for condensation of delay by the appellant. No plausible explanation has been offered by the appellant for this inordinate delay of 152 days since his last communication to the Establishment Division i,e, dated 18-4-1983. Any condemnation of delay in the absence of a justifiable explanation to our satisfaction is not considered allowable. The appeal is, therefore, dismissed for lack of merit as well as being hopelessly time-barred.
9. No order as to costs.
10. Parties to be informed.