' SYED ALLY MADAD SHAH (CHAIRMAN).---Appellant Mr. Amanat Ullah Khan has preferred this appeal to seek the reliefs outlined in the prayer clause of the memo of appeal reading as under:- "It is, therefore, respectfully prayed that the orders of withholding of seniority and promotion by respondents Nos. 1, 2, 3, 4 from the dates the appellant's first juniors M/s. Abdul Shakoor, Iftikhar Ali Shah- and Muhammad Jamil Qureshi were promoted as Accountant and Sr. Accountant w,e,f, 14- 9-1970 and 6-1-1977 may kindly be declared illegal, mala fide and without lawful authority with all consequential benefits and fringe benefits, as the seniority and promotion has been withheld on account of the mala fides of M/s. M.Y.Khan and Bashir Ahmed, who remained the members of the Selection Board in the appellants case throughout.
' It is further prayed that any other relief which this Hon'ble Tribunal ma0y deem fit, by way of compensation etc. May kindly be awarded in favour of the Appellant and against the respondents alongwith costs throughout."
2. Broad facts of the case of the appellant are that he was appointed as an Assistant Accountant, WAPDA, on 4-3-1960. He was promoted as a Junior Accountant w,e,f, 9-5-1963. He was entitled to promotion as an Accountant earlier than his juniors M/s. Abdul Shakoor, Muhammad Jamil Qureshi and Iftikhar All Shah, who were promoted as Accountants w,e,f, 14-9-1970 vide Chief Accountant (WAPDA) No, Aii/Admn/Promotion/Accts/26971, dated 14-9-1970. However, he was not promoted w,e,f, 10-9-1970 as he was already under suspension and departmental inquiry was initiated against him. Subsequently, he was reinstated in service vide order dated 31-3-1975. The inquiry proceedings against him were dropped on 8-4-1976. He then submitted an application dated 3-5- 1976 to the Chairman, WAPDA, for his promotion from the date his juniors were promoted with all consequential benefits. He did not find any response to his representation despite several letters addressed by him. He submitted a petition to the Prime Minister on 12-11-1976. Notice of his grievance was taken in the Prime Minister's Secretariat and the matter was taken up with the WAPDA authorities. He was informed under letter dated 17-11-1976 from the office of the Prime Minister's Representative on Administrative Inspection that the concerned authorities had reported that his case for promotion as Accountant could not be considered as there was only one vacant 'post of Accountant and he could not be promoted thereto as he was not the senior-most Junior Accountant and his case would be considered when there would be such an occasion for consideration. He made another petition to the Prime Minister's Secretariat on 19-12-1976. He was again informed by a letter dated 12-7-1977 addressed to him from the office of the Federal Inspection Team that the concerned authorities had reported that he could not be considered for promotion on account of his overall performance being unsatisfactory. However, the appellant continued agitating his claim. During the course of time, an order of his removal from service under the provisions of Section 17(1-A) of the WAPDA Act, 1958 was made on 10-12-1977. He challenged that, order before the National Industrial Relations Commission (NIRC) and obtained stay order dated 17-12-1977. By amendment of Section 17 of the WAPDA Act by addition thereto of subsection (1-C), w,e,f, 29-12-1979 under Ordinance No,I.XXII of 1979, the jurisdiction of the NIRC in such cases was taken away. He rushed to the Lahore High Court and filed Writ Petition No, 817/80 on 27-14980 and obtained stay order. His writ petition was dismissed for want of jurisdiction on 9-34983.
Thereafter, he filed Appeal No,92(L)/83 before this Tribunal at Lahore on 22-3-1983 and 'obtained stay order on 16-4-1983. During the pendency of that appeal, he had another surprise of his compulsory retirement on completion of 25 years service qualifying for pension by order dated 4- 3-1985. He challenged that order by making a miscellaneous application No,267/85 in Appeal No,92(L)/83. His application was dismissed by order dated 4-3-1985. He, therefore, preferred independent Appeal No,112(L)/85 on 5-3-1985 against the order of his compulsory retirement dated 4-3-1985. Both the appeals were disposed of on 9-3-1986 by one judgment. The Appeal No,92(L)/83 was dismissed as having become infructuous consequent to the making of the order of compulsory retirement of the appellant dated 4-3-1985, while the second appeal No,267(L)/85 was dismissed On merits. He preferred appeal before the Supreme Court which was decided on 27-4-1988 and the judgment of the Tribunal in both the appeals of the appellant was set aside and both the appeals were remanded for rehearing and decision on merits. The two appeals of the appellant were again dismissed by the Tribunal by one judgment dated 19-10-1989. He filed an application for leave to appeal before the Supreme Court which was dismissed by o tier dated 26- 2-1990. He preferred review application dated 26-3-1990 which is pending. The appellant had simultaneously claimed emoluments for the period of his suspension and he lodged his claim with the Authority under the Payment of Wages Act and his claim was upheld. The WAPDA preferred appeal against that decision before the Labour Court No,1, Lahore. Their appeal was dismissed by judgment dated 28-8-1982. Revision petition filed before the Punjab Labour Appellate Tribunal, Lahore by the WAPDA was dismissed on 28-6-1983. Finally the WAPDA was obliged to release to the appellant his dues for the period of suspension and he was issued such revised salary slip dated 28-8-1986. Thereafter, he made representation dated 13-12-1986 to the Chairman, WAPDA for allowing him seniority and proforma promotion which, according to him, had been denied to him on mala fide grounds. He received the following reply dated 7-1-1987.
"WATER AND POWER DEVELOPMENT AUTHORITY 0/0 Manager Finance (C)
WAPDA, B-65 Wapda House, Lahore.
No,Aii/Admn/MFC/Promotion/B-18/IV/196, dated 7-1-1987.
Mr. Amanat Ullah Khan, Ex-B&AO N-782-A, Samanabad, Lahore.
' Subject: GRANT OF SENIORITY AND PROFORMA PROMOTION -MR. AMANAT ULLAH KHAN EX-B&AO.
' Ref: Your application dated 13-12-1986 addressed to Chairman, WAPDA.
' Your request as contained in your application under reference has already been considered at many occasions in the past but you were not found fit for promotion by the relevant Selection Boards.
' This bears approval of Chairman, WAPDA. (Sd. ) BUDGET & ACCOUNTS OFFICER (A&C) FINANCE, WAPDA,"
' Finally, the appellant preferred this appeal on 31-1-1987.
3. The appellant has argued the appeal himself. He has given resume of the events mentioned above. He has urged that he was denied due promotions on account of his suspension which was held to be unlawful and on restoration of admissible benefits of service, he was entitled to be given pro forma promotions which had been due to him but for his suspension. He has cited several authorities which would be referred to at the appropriate place.
4. The respondents Nos.1, 2 and 3 have resisted the appeal and made denial in the written objections of mala fide actions attributed to the respondents officers. The learned counsel appearing on their behalf has contended that the appeal is hopelessly time-barred inasmuch as that the appellant had made representation therefor on 3-5-1976, whereas he preferred this appeal as late as 31-1-1987. He has next contended that the appellant was denied promotions not on account of his suspension but on account of his unsatisfactory record from earlier than 1970 and he could not claim any pro forma promotion even after the restoration of his dues for the period he had remained under suspension. Private respondents Nos.4 to 7 have not contested the appeal.
5. The appellant has preferred this appeal for the relief of promotion as are Accountant from the dates his juniors M/s. Abdul Shakoor, Iftikhar All Shah and Muhammad Jamil Qureshi were promoted as Accountants and Senior Accountants viz. 14-9-1970 and 6-1-1977. He has alleged that he was deniec promotion alongwith his juniors due to mala fide actions of M/s.M.Y.Khan and Bashir Ahmed who, according to him, were members of the Selection Board. During the course of arguments, he has laid stress on the order of his suspension from service for the period from 10-2- 1970 to 21-4-1975 and contended that the order of his suspension was mala fide, having been manoeuvred by Mr. M.Y. Khan, and has made reference to the observations made in the special report submitted by the Director General, Prevention and Detection, WAPDA, Lahore (at pages 37 to 46 of the memo of appeal). He has also made reference to the observations made in the inquiry report which was submitted earlier, the extracts whereof have been filed at pages 51 to 54 of the memo of appeal. He has also referred to the observations made in the judgment of the Punjab Labour Appellate Tribunal, dated 26-8-1983 in his case regarding his remuneration for the period he was kept under suspension. A copy of the judgment has been filed at page 73 of the memo of appeal. Of course, certain observations were made in the special report and the inquiry report and also in the judgment or the Punjab Labour Appellate Tribunal that the appellant had suffered victimisation by the actions taken against him. Certain observations of like nature were also made by this Tribunal in the judgment delivered in Appeal No,92(L)/83 and Appeal No,112(L)/85 filed by the appellant against the orders of his removal from service under section 17(1-A) of the Wapda Act, 1958 and his compulsory retirement from service on rendering service of 25 years qualifying for pension under the WAPDA Employees (Retirement) Rules, 1979, respectively. But that judgment was set aside by the Supreme Court by judgment dated 27-4-1988 in Civil Appeals Nos. 114 and 115 of 1987. The appeals were reheard by another Bench of this Tribunal and the allegations of mala fides alleged by the appellant were repelled in its judgment dated 11-10-1989. The appellant's application for leave to appeal against that judgment was dismissed by the Supreme Court by order dated 26-2-1990. The appellant has, no doubt, filed a photostat copy of a Memorandum dated 26-3-1990 whereunder he was informed by the Assistant Registrar of Supreme Court of Pakistan with reference to his application dated 2-3-1990 that his Civil Petition No,35 of 1990 would be entertained. In any case the appellant's Appeals Nos. 92(L)/83 and 112(L)/85 pertained to the orders of the appellant's removal from service and his compulsory retirement from service and the question of his suspension from service was not under adjudication in those appeals. The question of mala fides behind the order of suspension of the appellant apart, the appellant has also contended that the order of his suspension was illegal, inasmuch as that it was not passed by the competent authority and also that the period of his suspension was not reviewed after every three months as per standing orders which were prevailing at the relevant time. He has added that realising that his suspension was not lawful, emoluments for that period were released to him as per salary slip dated 28-8-1986. He has taken the plea that by virtue of restoration to him of his emoluments for the period of suspension, he became entitled to the benefits of seniority and pro forma promotions as well. This plea of the appellant is misconceived. The reliefs of pro forma promotion and seniority do not necessarily flow from the restoration of his emoluments for the period he had remained under suspension. The appellant could have agitated those pleas if his promotion and/or seniority had been denied on account of his suspension. The respondents have placed on record synopsis of the minutes of the meetings of the Selection Board held during the years 1973 to 1985, as Annexure R-29 at page 100 of the written objections. For the purpose of this appeal, the relevant period is from 1970 to 1975 during which he had remained under suspension. It appears from the synopsis of the minutes of the meetings of the Selection Boards that the appellant was not considered fit for promotion at the meetings of the Selection Boards held on 4- 5-1973, 24-9-1924 and 9-5-1975. The departmental representative has also shown at the hearing a copy of the minutes of the meeting of the Selection Board held on 22-7-1970 wherein too the appellant was not considered fit for promotion. He was found unfit even in the year 1976. The stigma of unfitness continued even upto 1979 with the added ground that disciplinary proceedings were pending against him. His consideration for promotion during the subsequent years was deferred on account of his removal from service etc. The stigma of unfitness is supported by a number of adverse entries in his ACRs, copies of which have been placed on record. There is no evidence that the promotion of the appellant was either denied or deferred on account of his suspension from service but it was not allowed on account of his unfitness for promotion. That being the case, he cannot seek from this Tribunal the relief of pro forma promotion etc. In view of the bar contained in proviso (b) to subsection (1) of section 4 of the Service Tribunals Act, 1973, laying down that no appeal shall lie to the Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to, or to hold a particular post or to be promoted to a higher grade. It may be mentioned here that the appellant has cited the following cases but they are of no avail to him in view of the finding that he was not deprived of promotion on account of his suspension. The cases cited by him are: ' PLD 1958 SC 104;PLD 1961 SC 105;PLD 1966 SC 188;PLD 1967 Kar.295; PLD 1970 SC 453; PLD 1971 SC 184; PLD 1975 SC 331; PLD 1976 SC 435; 1981 SCM R 392; PLD 1981 SC 816; 1984 SCM R 590; 1984 PLC (C.S.) 926; 1984 CLC 2782 and 1987 SCMR 1947.
6. The respondents Nos. 1, 2 and 3 have agitated that the appeal is time-barred. The learned counsel appearing on their behalf has urged that the appellant made representation on 3-5-1976 for the relief of proforma promotion and seniority etc. And he also made representation to the Prime Minister's Secretariat .And the respondents explained the case to the Prime Minister's Secretariat and the appellant was informed from there vide letter dated 30-6-1977 that he could not be promoted, but he did not prefer any appeal to the Tribunal. According to them, the appellant's pressing in aid the reply dated 7-1-1986 on his application dated 13-12-1987 did not concede to him condonation of delay in filing the appeal as it was a highly belated representation and he was informed under the letter dated 7-1-1987 that his request had been considered on many occasions in the past and he was not found fit for promotion by the Selection Boards. The appellant did agitate the question of his promotion in 1976 by making an application dated 3-5- 1976 to the Chairman and failing to get reply thereto, he could have preferred the appeal at that stage and his case could not be reopened for invoking the jurisdiction of the Tribunal by just repeating his representation for promotions and obtaining a reply thereto. The appeal, therefore, appears to be time-barred.
7. For the reasons recorded above, the appeal is not only time-barred but is also devoid of any merit and is dismissed as such.