SH. HASAN NAWAZ (MEMBER).--This appeal under section 4 of the Service Tribunals Act, 1973 is with the prayer that the appellant may kindly be allowed his due seniority from the date he is entitled without passing the examination alongwith other benefits like salary, promotion and status".
2. After having been recruited as Accounts Assistant, the appellant who had already been made to officiate as Assistant Accountant, was regularly promoted as such by letter dated 7-6-1969 with effect from 25-2-1969 alongwith 27 other officers of his status by the respondent Authority in relaxation of the qualifications prescribed in the WAPDA Accounts Service Rules, 1966, made in exercise of powers conferred by section 18 of the WAPDA Act, 1958 (Annexure-A).
3. On 7-2-1970, the respondent authority passed the following order on the subject of West Pakistan WAPDA Accounts Service Rules, 1966. "It has been decided by the competent authority that there will be only one examination for promotion of WAPDA Accounts Staff after the grade of Accounts Assistants. Therefore, the examination at present being held for Assistant Accountants/ Divisional Accountants to qualify for promotion as Junior Accountant has been discontinued with immediate effect". (Annexure-B)
4. Item No, 6 of Appendix-A read with the provisions of Rules 5 and 7(1) of the WAPDA Accounts Service Rules, 1966, prescribes that 67% of the posts of Assistant Accountants shall be filled from the Divisional Accountants/Accounts Assistants/Regular Cashiers who had passed the prescribed departmental Accounts examination for promotion to the grade of Assistant Accountants and the remaining 33% of the posts from the Accounts Assistants/Regular Cashiers on the basis of seniority-cum-fitness. It has also been prescribed that in case of non-availability of eligible Accounts Assistants, the posts shall be filled by initial recruitment of persons who have passed the Subordinate Accounts Service Examination of Government Accounts Department.
5. In the background of these facts, the appellant's case in substance is that he became eligible for promotion as Junior Accountant with effect from 25-2-1974, after having completed 5 years service as Assistant Accountant, as the requirement of second examination prescribed for promotion to the post of Junior Accountant in column No, 4 of Appendix-A, had been done away with by the aforementioned order dated 7-2-1970 (Annexure-B). The gist of his pleadings is that passage of only one examination was required in pursuance of order dated 7-2-1970 and that in his case the condition of passing the examination had already been relaxed at the time of his regular promotion as Assistant Accountant by order dated 7-6-1%9. He had thus become eligible for promotion, as claimed, on completion of 5 years service as Assistant Accountant on 25-2-1974.
6. We see from his pleadings that he addressed a representation to Member, Finance WAPDA, Lahore on 17-9-1977 where he prayed that his case may be reconsidered for promotion as Junior Accountant with back benefits (Annexure-F). It was further pleaded that after this representation, he had been pursuing the matter and that his request for promotion was finally rejected by letter 1- 8-1985 endorsed to him on 8-2-1985, ultimately received by him on 15-9-1985 (Annexure-L).
7. Preliminary objections regarding limitation, incompetency of the appeal under proviso (b) to section 4 of the Service Tribunals Act and non-joinder of necessary parties, were raised in defence.
On merits it was pleaded that although the appellant had completed 5 years of service as Assistant Accountant on 25-2-1974, he was not eligible for promotion to the post of Junior Accountant as he had not qualified the prescribed departmental promotion examination.
8. We may first deal with the objection in respect of limitation. Although the appellant seems to have deliberately avoided to mention this fact, we see from paragraph-5 of the written statement that his representation dated 19-7-1977 was rejected by the Authority on 23-8-1977. He was informed by letter dated 23-8-1977 (Annexure-R/A) that his representation had been considered by Member Finance and rejected. He was advised to pass the prescribed departmental promotion examination, which was a condition precedent for promotion as a Junior Accountant. We also see from the record that he made certain other representations after 19-7-1977 and that the last one on the subject of promotion to the post of Junior Accountant was considered and turned down by the Member Finance WAPDA and that he was informed of this rejection by letter dated 1-8-1985 (Annexure-L). We are of the considered view that there was hardly any justification for filing subsequent representations when the first representation dated 19-7-1977 on the subject had been rejected by the Authority and he was duly informed of this rejection through letter dated 23-8-1977.
This letter was quite unambiguous in terms and had left little room for any doubt regarding his eligibility for promotion as Junior Accountant. Merits of the case apart, the departmental approach and thinking on the subject was made abundantly clear through this letter and he was told in very clear words that he could be eligible for promotion only after passing the departmental promotion examination. That being the situation, we see no justification for further pursuing the matter with the respondent Authority, particularly when there was no provision for subsequent representations. After he had become aware of the rejection of his representation, through letter dated 23-8-1977, he should have come to the Tribunal with an appeal under section 4 of the Act to challenge the validity of the departmental order refusing to consider him for promotion on account of his failure to pass the departmental promotion examination. We feel no hesitation in saying that the present appeal filed as long after the rejection of his representation as 16-10-1985 is hopelessly time- barred.
9. As for the second objection regarding incompetency of the appeal, we may make a reference to proviso (b) to section 4 of the Act which lays down that no appeal, shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed or hold a particular post or to be promoted to a higher grade.
10. As we have already noticed, the appeal culminates in the prayer that the appellant may be "allowed his due seniority from the date he is entitled without passing the examination alongwith other benefits like salary, promotion and status". Although the appellant seems to have taken pains to avoid the use of words "promotion", it can be clearly perceived with due application to the prayer that in actual fact he prays for a direction to the respondent either to promote him as Junior Accountant or consider him for such promotion. We find no difficulty in reading the appellant's actual intention between the lines and the fact that he seems to have made a vain attempt to conceal what he has really asked the Tribunal to order. This is so because "allowing his due seniority from the date he is entitled" is a vague and meaningless expression, considering that his case is not that of seniority but only for the grant of promotion. It may be said that he wants to have his seniority fixed in the cadre of Junior Assistants but that is not possible unless he is promoted to that post. Therefore, the gist of what is being sought in this appeal is promotion as Junior Accountant.
11. As we have already seen, his representation was rejected by the competent authority and he was informed of this rejection through letter dated 23-8-1977 which makes it quite clear that due consideration had been given to his case for promotion as Junior Accountant. We might as well mention that the subject of his representation dated 19-7-1977 was promotion as Junior Accountant. Under the circumstances, therefore, it will have to be found that his appeal is incompetent under proviso (b) to section 4 of the Act, which debars the Tribunal from going into an order or decision of a departmental authority determining the fitness or otherwise of a person to be promoted to a higher grade.
12. For the aforementioned reasons, the appeal is dismissed as being incompetent and time- barred. In view of the legal nature of the issue involved, there will be no order as to costs.
12-A. Parties to be informed.