CH. HASAN NAWAZ (MEMBER).-- We are concerned, in this judgment, with the disposal of an appeal under section 4 of the Service Tribunals Act, 1973.
2. The relief sought by the appellant is in the following terms: (a)My reversion/reduction order issued by G.M(P) LHR illegally, mala fidely, dishonestly and unauthorisedly vide his Letter No,574-E/54 (APO-II), dated 12-4-86 may be set aside alongwith issue of separate and fresh DPCs of SWLI (Coop) & SWLI(Genl.) as the same are clear violation of Chairman Railway Board order circulated vide paras. 169 and 170 of P.R. Gazette Notification No, 21, Tuesday, November 1, 1977.
(b)An amalgamated seniority list of SWLI (Coop) & SWLI (Gent:) may be issued without further delay.
(c)The difference of pay and allowances from RNSP-12/BS-12 to RNSP-14 for the period from September, 1978 to May, 1982 alongwith interest thereon at the rate of 17% per annum may be given to me for serving physically against the post of RNSP-14. My transfer order to Sukkur may also be cancelled.
(d)Dual charges allowance may also be given to me with interest thereon at the rate of 17%.
(e)Costs and any other suitable relief deemed appropriate by the Honourable Tribunal in the circumstances of the case may please also be allowed."
3. The appellant was selected as Welfare Inspector (Coop) in 1972. As would appear from Notification No, 21 of 1-11-1977 (Annexure 'A), the cadre of Welfare Inspectors (Coop) was amalgamated with that of Welfare Inspectors (General) H.E.R with the approval of the Chairman, Railway Board in respect of seniority, promotion and transfer. It was decided that "henceforth xxx the channel of promotion of Senior Welfare Inspectors (Coop) will also be the same as enjoyed by the Senior Welfare Inspectors, Labour Wardens and Office Superintendents, that is to say to the posts of A.P.O., J.P.O. and J.W.O./J.R.P.O.
4. As it has already been noticed one of the reliefs sought by the appellant is that order of his reversion/reduction issued by the General Manager (Personnel) Lahore and conveyed to him through letter dated 12-4-1986 may be set aside as illegal and without authority. We are inclined to remark that his pleadings either on this point or in respect of other reliefs sought by him are not happily worded and they have left almost every thing to be desired. There is no mention of the fact of reversion in the pleadings in a direct and clear manner. It seems to have been mentioned only in an indirect way in various parts of the pleadings. In paragraph-6, without narrating the facts in the background, the appellant has pleaded that "in addition to the above the departmental promotion committee is not competent to recommend demotion when a clear vacancy of Senior Welfare Inspector (Coop) is lying vacant in Workshop Division Mughalpura." For the first time in this paragraph, we have learnt that any recommendation regarding his demotion was made by the DPC. It may be pointed out that the appellant had been pleading about the amalgamation of cadre in paragraph 6 when he suddenly introduced the subject of his demotion.
5. Then, in paragraph 8 of the appeal he has pleaded that "he performed duty against different posts of RNSP/BS-14 after clearance of DPC" and that "it is not understood as to how General Manager (P) has issued orders of my reversion/reduction without assigning any reason or issuing any show-cause notice violating all rules and regulations in force. "Here again, we learnt for the first time through indirect pleadings that he was reverted or reduced in rank by the General Manager (P). A reference to order (Annexure G) would show that he was reverted to the post of Welfare Inspector (Coop) in BS-12 with immedite effect by the General Manager (P) and transferred to Sukkur Division and posted against an existing vacancy.
6. The gist of appellant's pleadings in support of the relief regarding payment of salary and allowances of BS-14 is that he had been serving in different capacities against posts in BS-14 from September 1978 to May 1982. It is alleged that he is entitled to the emoluments of higher post alongwith interest at the rate of 17% per annum on the strength of Dacca High Court's decision in Muhammad Hussan v. Postmaster-General cited as PLD 1969 Dacca 254. It is also his case that since May, 1982 he has been receiving pay of BS-14 after he had been cleared by the LPC on 12-4- 1982.
7. It is alleged in paragraph 6 of the appeal that "separate DPCs of Senior Welfare Inspectors
(Coop) and Senior Welfare Inspectors (General) have been issued from General Manager (Personnel) Office, Lahore and the appellant's name has not been shown in any one of them". The issue of fresh "separate DPCs of Senior Welfare Inspectors (Coop) and Senior Welfare Inspectors (General) is clear violation of Chairman's orders already circulated vide paras. 169 and 170 of P.R.
Gazette Notification No,21 dated 1-11-1977". It is alleged that the cadres have been separated without the Chairman's approval.
8. The appeal has been opposed on the ground of limitation and competency. Another preliminary objection is that the appellant is not entitled to reopen the matter which has earlier beep decided in his Appeal No, 430(L)/84 by the Tribunal and that the present appeal is liable to dismissal on the ground of res judicata.
9. On facts, it is denied that the appellant was cleared for promotion in May, 1982 by the DPC. While admitting that a circular regarding separation of the cadres of Senior Welfar Inspectors (Coop) and Senior Welfare Inspectors (General) was issued, it has been pleaded that the appellant was not found fit by the Committee to be cleared for promotion and that his name did not figure in the seniority lists of both the cadres because of this decision.
10.As already pointed out before, the appellant's pleadings are not happily worded. It is difficult to understand as to what exactly was meant to be conveyed by the allegations "that separate DPCs of SWLIs (Coop) and SWLIs (General) has been issued from G.M.(P)'s Office, Lahore and my name has not been shown in any one of them." May be that the purpose was to allege that separate lists of these cadres have been issued and that the appellant's name has not been mentioned in any of those lists. If this be so, no reason has been given as to why his name should have been there. The appellant does not appear to have made out a case in his pleadings to show that he was entitled to figure in any of those lists. In paragraph 5 of the appeal he did mention that salary of BS-14 was paid to him from the month of May, 1982 after clearance by the DPC. But clearance by the Committee for promotion to the next higher post does no necessarily mean that a person has actually been so promoted in consequence of that clearance. A Despite the DPC's recommendation or clearance, it still rests with the competent authority to pass orders of promotion. In any case, clearance by the DPC is by no means the same as promotion to the next higher post. Even in the appellant's previous appeal, dismissed by the Tribunal on 25-6-1986, it had been pleaded that the cadre of Welfare Inspector (Coop) was amalgamated with that of Welfare Inspector (General) on 1-11-1977 by the Chairman, Railway Board in respect of seniority, promotion and transfer. It was alleged that he was posted as Labour Warden, Pakistan Railways, Carriage Factory Islamabad on 12-9-1978 in consequence of amalgamation of cadres and that he held this post uptil 15-2-1980, whereafter in May, 1980 he was transferred and posted at Headquarters Office, Lahore as a Senior Welfare Inspector (Coop) in BS-14 and that he served as such uptil 31-12-1983. It was also pleaded in the previous appeal filed on 9-10-84 that on transfer from Lahore on 8-1-1984, he was posted as Labour Warden, Central Diesel Locomotive Workshop, Rawalpindi. It was further pleaded that he was the "Senior most Labour Warden in BS-14 and entitled to be promoted in March, 1984 and that the Department promoted M/s. Abdul Majid and Muhammad Aslam by ignoring him without any justification."
10-A. It may he noticed that in the previous appeal, there was no allegation of the fact that he was cleared for promotion by the DPC and that any such clearance was conveyed to him by letter dated 12-4-1982 as has been done in the present appeal. Although it has not been specifically so mentioned in this appeal, the appellant wants us to believe in the present appeal that he had been cleared by the DPC and that this clearance amounted to his promotion. No such case was set up in the previous appeal. The appellant did not claim even the emoluments of the higher post as has now been done in the present appeal. The main grievance was that his juniors M/s. Abdul Majid and Mohammad Aslam had been promoted and that he was not considered for promotion by the respondents. Nothing was said about where he had been serving in the higher post during the period from September 1978 to May 1982 and that he was entitled to the emoluments of those posts alongwith interest, as has been done in the present appeal, although cause of action for such a claim, if any, had already accrued by the time of the institution of the previous appeal on 9- 10-1984.
11. While dealing with the matter of his seniority, the Tribunal made the following observations in their judgment dated 25-6-1986: "Even if we accept the position regarding the amalgamation of cadres, the appellant's claim that he was the senior most Labour Warden in BPS-14 has not been substantiated by any document or any other evidence whatsoever. As a matter of fact when asked to produce the seniority list on the basis of which he made this claim, he failed to produce the same before the Tribunal. He also could not produce any evidence by way of notification, posting orders, appointment letters to show that he was senior to Abdul Majid and Mohammad Aslam over whom he claims seniority and who have been made respeondents in this case. Mere assertion by the appellant without any supporting evidence cannot justify his claim. The department on being directed, produced a seniority list of Senior Welfare Inspector (Coop) of Pakistan Railways which is reproduced below:- S.No,Name Designation Date of entry Remarks & stationinto Gr.14 of Posting SWLI/Coop)
S.No, Name Designation & station of PostingDate of entry into Gr.14 SWLI/Coop)Remarks Mr. Allaud Din SWLI/HQ 30-2-1977 -do- Mr. F.R. Naqvi SWLI/RWP10-6-1978 Mr. Abdul Majid QureshiSWLI/PSC 12-4-1982Under orders of reversion as W.L.I. in B-12.
Mr.Muhammad SaleemSWLI/H.Q.19-12-1980 Ch. Muhammad IqbalSWLI/LHR 11-8-1982 Mr. B.A. Qateel SWLI/MUL.15-8-1982 According to this list the appellant figures at S.No,5 and it was stated by the departmental representative that while 2 people senior to him had proceeded on retirement 2 persons senior to him viz. A.A.Jafri at SI.No,1 and F.R. Naqvi at SI.No,4 have still to be promoted and as such question of promotion of the appellant did not arise. On our direction the department also produced a combined seniority list of Senior Welfare Inspector (Cooperative) and Senior Welfare Inspector (General) which would be operative, if the position regarding amalgamation of cadre is accepted.
Even according to this list the appellant figures at Sl.No,15 and six peoples senior to him viz. those at SI. No,9 to 14 are still to be promoted. So for Mohammad Aslam and Abdul Majid are concerned, they figure at SI.No,6 and 8 respectively and are definitely above him in the seniority list produced by the department. The appellant apart from mere assertions has produced no evidence, whatsoever, to substantiate his claim of being the senior most. On the basis of the evidence produced before us, his claim of being the senior most Labour Warden stands negated."
12. In so far as the allegation regarding the holding of higher post is concerned the following observations made in the previous judgment are relevant: "So for the contention of the appellant that "he has been serving and is serving on the seat of Labour Warden for limitless period" is concerned a perusal of the record shows that there is no formal order promoting him on regular basis as a Labour Warden nor has he been continuously holding that post after having been duly approved for that appointment. As far as could be seen from the records, the appellant was posted at Quetta Division as W.O.I.(Coop) vide letter dated 24- 6-1978. However, he was retained at Rawalpindi at his own request by posting him in the Carriage Factory, Islamabad in his own scale (RNSP-12) against the post of Labour Warden pending adjustment of Qamaruddin W.L.I Quetta. His contention that he was posted as Labour Warden in the Carriage Factory, Islamabad as a result of amalgamation is not borne out by the records. He continued to work there and was transferred back as W.L.I.(Coop) Headquarters Office vide Notification dated 10/11-5-1980. He was later promoted as Senior Welfare Inspector (Coop) in his own cadre temporarily, pending D.P.C./selection vide Notification No, 754E/54 (JPO-VI), dated 12- 4-1982.
13. It would appear from these observations that there was nothing before the Tribunal to show that he was made to serve against any higher post by the Department till 12-4-1982. There is no substance in the contention that he was posted as Labour Warden in Carriage Factory at Islamabad as a result of amalgamation of cadres. As a matter of fact he was retained at Rawalpindi on his own request which appears to have been made by him to avoid his posting in Quetta Division as Welfare Inspector (Coop). He worked there till he was transferred as Welfare Inspector (Coop) at the Headquarters through Notification dated 10/11-5-1980.
14.The following observations made by the Tribunal in the previous appeal are also in point: He was transferred back to Workshop, Mughalpure as S.W.L.I (Coop) on ad hoc basis, vide Notification dated 30-8-1983 but did not join and proceeded on 120 days leave. On return from leave, he was posted as S.W.L.I(Coop) in Rawalpindi Division but as there was no vacancy of S.W.L.I
(Coop) in this Division, the Divisional Superintendents, at his own, utilized him temporarily against the post of Labour Warden C.D.L/Shops and requested the department for posting a suitable Labour Warden and posting out Abdul Majid Qureshi. Orders of posting of Abdul Majid Qureshi as S.W.L.I. (Coop) were issued on 21-1-1985. There is nothing on record to show that as a result of the amalgamation he was posted as Labour Warden."
15. It is abundantly clear that in view of the allegations made in the previous appeal and the Tribunal's judgment dated 25-6-1986, there is no substance in the claim that he is entitled to the emoluments of higher post with interest. In any case, even it be assumed that he was so entitled, the claim is barred by limitation and the principles analogous to those of res judicata. If at all he had become entitled to the emoluments of higher post for the period in question from September 1978 to May 1982 long before the institution of the previous appeal on 9-10-1984, there is no reason why he should not have put up a claim to that effect. The present appeal in so far it relates to the prayer for the emoluments of higher post with interest is clearly time-barred.
16. In so far as the question of amalgamation of the cadres is concerned, we are inclined to hold that it is immaterial in view of the judgment delivered by the Tribunal in the appellant's previous appeal where the question of his seniority as dealt with in detail. The Tribunal held that he was not entitled to any Promotion on account of the amalgamation of cadres and that it did not affect the merits of his case.
17. The only other point which now remains to be determined is that of the I appellant's reversion conveyed to him through letter dated 12-4-1986. The respondent's position is that he was neither cleared by the DPC nor in fact regularly promoted to a higher post and that there was nothing illegal about the impugned order of his reversion. We feel there is substance in this allegation, because there is nothing on the record to show that the appellant had ever been promoted to any post in BS-14 by the respondents. As observed by the Tribunal E in the previous appeal "he was promoted as Senior Welfare Inspector (Coop) in his own cadre temporarily pending selection as would appear from Notification No,754-E/54(JPO-VI), dated 12-4-1982. Since he was never regularly promoted, the impugned order should be taken to have been passed in routine as a matter of course and there is no reversion or demotion strict senso, as could have given him any cause of action.
18.For these reasons, the appeal is dismissed as being without any substance. There will be no order as to costs. Parties to he informed.