' CH. HASAN NAWAZ (MEMBER).--Apart from the General Manager, Pakistan Railways (respondent No,1) and the Inspector-General of Pakistan Railways Police (respondent No,2), Khalid Farooq appellant and Muhammad Subtain respondent No,3 are involved as contesting parties in this appeal under section 4 of the Service Tribunals Act, 1973.
2. The appellant was appointed as Prosecuting Sub-Inspector in the Pakistan Railways Police on 4- 6-1979, whereafter he was promoted as prosecuting Inspector in February, 1982, which post he held at the time of the institution of this appeal on 21-2-1985. Muhammad Subtain respondent No,3 was ppointed as Prosecuting Inspector in the province of Sindh on 28-5-1962 and was on deputation by the Deputy Inspector- General of Police, Sukhur to Pakistan Railways Police through Notification No, Est/2092-97, dated 5-4-1976 as alleged in para. 4 of the appeal. He was promoted as Prosecuting Inspector on -4-1980 by order No, Quo/E-30-PRP issued by the Inspector-General of Pakistan Railways Police, Lahore and was then confirmed as such with effect from 24-8-1980 by order dated 25-5-1981 passed by the competent authority. He as promoted as PDSP during the year 1981.
3. A seniority list of Prosecuting Sub-Inspectors of Pakistan Railways Police as circulated by the Inspector-General by covering letter No,A-8/10-PRP, dated -2-1981 (Annexure A/1) for information of the concerned staff. On receipt of is list, the Superintendent, Pakistan Railways Police, Lahore Division, sent it to the appellant for his information through endorsement No, 1559/E-1, dated 6-2- 1981. Respondent No,3 was shown against serial No,1 whereas the appellant's name was mentioned against serial No,3 of the list. On the appellant's abjection, another seniority list was circulated by the office of Inspector-General though covering letter dated 10-3-1981 (Annexure-A). Like it had been done in e previous list, the subsequent one was also endorsed to the appellant for his formation on 12-3-1981 by the Office of Superintendent, Pakistan Railways Police, Lahore Division, Lahore. In the amended seniority list the appellant's name figured at serial No,2, just below that of respondent No,3 who was again shown senior to him.
4. It is alleged in the grounds of appeal that he challenged the validity of this list in a representation addressed to the Inspector General. Although it is mentioned in para. 6 of the appeal that a copy of this representation has been appended as Annexure A/3, we do not find any such copy on the record. As a matter of fact Annexure A/3 is a copy of the Superintendent's letter dated 10-10-1982, addressed to the appellant for his information that his representation had been considered by the Inspector-General and rejected as time-barred. After the lapse of about one and half years, he submitted representation dated 14-2-1984 to the General Manager (respondent No,1) through Inspector General (respondent No,2) where he challenged the promotion of respondent No,3 as being illegal. As we see from letter Annexure-A/5 addressed by the Inspector General to the Superintendent of Pakistan Railways Police, Lahore on 10-1-1985, this representation was considered and again rejected as time-barred and having no legal force. The representation was not forwarded to the General Manager and withheld in the Inspector-General's office. The appellant was informed of this fact through endorsement No, 433/A-I, dated 23-1-1985, whereafter he came to this Tribunal with the present appeal on 21-2-1985.
5. He made two prayers in this appeal. The first is that "this honourable Court may be pleased to declare that the impugned seniority list dated 10-3-1981 and Order dated 23-1-1985 passed by the Inspector-General of Pakistan Railways Police are illegal, without lawful authority and the appellant may be declared senior to respondent No,3". The second prayer is that "direction may kindly be issued to the respondents to place the appellant senior to respondent No,3 declaring the inducting of respondent No, 3 as Prosecuting Inspector/PDSP to be void and without lawful authority".
6. Merits apart, the appeal has been defended on the ground of limitation. Therefore, we feel that the preliminary objection should be disposed of before dealing with the appeal on merits. As already noticed in an address to the facts of the case, respondent No,3 was promoted as Prosecuting Inspector on 5-4-1980 and then confirmed as such with effect from 24-8-1980 as notified by letter dated 25-5-1981. We have also seen that a seniority list of Prosecuting Sub- Inspectors was circulated by the Inspector-General through covering letter dated 5-2-1981. On having been shown junior to respondent No,3 in this list, the appellant filed objections against the list, as a result of which a modified list was circulated through covering letter dated 10-3-1981 where, though with little improvement in his seniority, he was again shown junior to respondent No,3 as Prosecuting Sub-Inspector. He challenged the legality of this list in a representation to the Inspector-General which was rejected as time-barred. This representation has not been placed on the record and we are, therefore, not in a position to say as to when it was filed. This, however, is borne out by copy Annexure A/3 that the representation was rejected by the Inspector-General (respondent No,2) as being time-barred. The Superintendent concerned was informed of the rejection of representation through letter No,A-8/10-PRP, dated 7-10-1982 and the appellant admitted that he was served with copy of this letter dated 7-10-1982 through Superintendent's letter dated 10-10-1982. Although it has been averred in para. 6 of the appeal that the representation has been appended as Annexure A/3 this seems to be factually incorrect as we see from the index filed with the appeal which indicates that Annexure A/3 is the letter informing him of the rejection of his representation. He has claimed in the same paragraph that letter dated 7-10- 1982 regarding rejection of his representation is Annexure A/4 on the record. But this is also incorrect, because Annexure A/4 is his representation to the General Manager as mentioned in the index. Therefore, we have no doubt that first representation against the seniority list has not been placed on record. The result is that we are not in a position to ascertain as to when it was filed.
'Therefore, on the basis of letter Annexure A/3, it will have to be presumed that he representation was time-barred because of the reasons that there is nothing on the record to contradict this fact.
It will have to be found on the basis of the record before us that his representation against the seniority list of 10-3-1981 was rejected as time-barred on 7-10-1982.
7. There is another aspect of the matter. It is that since the representation has not been filed, we are unaware of its contents and therefore, not in a position to say whether respondent No, 3's promotion as Prosecuting Inspector was challenged in that representation. This point is quite material in the context of whether the present appeal is within time. Respondent No,3 was promoted as Prosecuting Inspector on 5-4-1980 and then confirmed with effect from 24-8-1980 through letter dated 25-5-1981. But we have absolutely nothing on record to show that the appellant ever challenged the legality of this promotion on any ground either in a representation or appeal submitted to the competent authority. He did it for the first time in his representation dated 14-2-1984 (Annexure A/4) addressed to the General Manager. He was evidently, hopelessly without limitation in challenging the legality of promotion which was brought about as far back as on 5-4- 1980. As already noticed, respondent No, 3's confirmation as Prosecuting Inspector with effect from 24-8-1980 was also notified through letter dated 25-5-1981 and we may take due notice of the fact that it is not the appellant's case that he was unaware of this promotion and subsequent confirmation. Under these circumstances it will have to be held that the appellant's representation dated 14-2-1984 was rightly withheld by the Inspector-General as time-barred under rule 7(1)(c) of the Civil Servants (Appeal) Rules, 1977. We also find that the present appeal instituted on 21-2-1985 is beyond limitation. The Inspector-General was under no legal obligation to forward a time-barred representation to the General Manager and such a course would have involved a clear offence against rule 5(4) of the Appeal Rules which lays down that every appeal shall be submitted within a period of 30 days of the communication of the order under appeal. The appellant was aggrieved respondent No,3's promotion and confirmation and he should have had recourse to the competent authority with a departmental appeal after he had come to know of these facts.
8. In so far as the merits go, the relief sought by the appellant is that the seniority list of 10-3-1981 and the Inspector-General's order rejecting his departmental representation may be declared and set aside as illegal. As already noticed, the impugned seniority list of 10-3-1981 is that of Prosecuting Sub-Inspectors, where Muhammad Sabtain respondent No,3 has been shown senior to the appellant. We find nothing wrong with the list because the respondent was recruited as Prosecuting Sub-Inspector on 28-5-1962 and then sent to the Pakistan Railway Police in accordance with the appellant's own case on 5-4-1976. He is evidently senior to the appellant who was appointed as Sub-Inspector on 4-6-1979, even after the respondent's induction in the Pakistan Railways Police on 5-4-1976. We feel no hesitation in saying that he has no locus standi to challenge the validity of impugned seniority list which is correct in accordance with the dates of appointment of respondent No,3 and the appellant.
9. As for the order withholding the appellant's representation to the General Manager conveyed to him through endorsement dated 23-1-1985, we have already held that there was nothing wrong with it. The representation was hopelessly time-barred and the Inspector-General was within his legal authority to refuse to forward it to the General Manager for consideration. A contrary view would amount to authorising the representationists to choose their own time for filing representations against the impugned orders, which is not warranted by the statutory rules. Even in the application for condonation of delay, no substantial reason has been mentioned in explanation of the delay caused in the submission of departmental representation and the ultimate appeal under section 4 of the Service Tribunals Act, 1973. This being so, we see hardly any justification for condoning the delay.
10. We may also take notice of the appellant's contention that the respondent No,3's promotion as Prosecuting Sub-Inspector was in violation of rule 19.28(4) of the Punjab Police Rules, 1934 which lays down that a Prosecuting Sub-Inspector may not be promoted to the rank of Prosecuting Inspector unless and until he is certified to have passed the Prosecuting Sub-Inspectors examination with credit. It was argued on behalf of the appellant that since the respondent had failed to pass this examination with credit he was not eligible for promotion as Prosecuting Inspector. The allegation that he could not pass the said examination with credit even on second attempt, in the session ending 31-8-1966, has not been denied by the respondents in their written statement. Defence in the main is that the promotion of Prosecuting Sub-Inspector to' the rank of Inspector was regulated by rule 11(2) of the Pakistan Railways Police Rules, 1980 which provides that the appointment to the posts in Grade-18 and below shall be made on the recommendation of the appropriate Departmental Promotion Committee. It was contended that this rule does not lay down any condition of qualifying the examination with credit for promotion to the post of Prosecuting Inspector. Respondent No,3, it was pleaded was promoted by the competent authority on regular basis in view of his seniority as well as good record at a time when the appellant had just been recruited as Prosecuting Sub-Inspector and had not yet even undergone basic course of training.
11. Section 17 of the Pakistan Railways Police Act, 1977 authorizes the Federal Government to make rules by notification in the official Gazette, inter alia, for the purpose of carrying into effect the provisions of the Act, section 18 empowers the Inspector General, with the prior approval of the Chief Executive, to make regulations consistent with the Act and the Rules. Section 19 of the Act lays down that till such time as the Rules and Regulations are framed, the persons referred to in clause
(a) of subsection (1) of section 5 and the officers and members, appointed after the commencement of this Act, shall, so far as may be and with the necessary modifications, be governed by the Punjab Police Rules, 1934.
12. The Pakistan Railways Police Rules, 1980 made by the Federal Government under section 17 of the Act were enforced on their publication in the Gazette of Pakistan extraordinary on 18-8-1980.
There is no denial of the fact that respondent No,3 was promoted as Inspector on 5-4-1980, evidently before the promulgation of Pakistan Railways Police Rules, 1980 at a time when rule 19.28(4) of the Punjab Rules, 1934 was applicable to promotion of Prosecuting Sub-Inspectors as Prosecuting Inspectors. This rule provides that a Prosecuting Sub-Inspector cannot be promoted to the rank of Prosecuting Inspector unless and until he is certified to have passed the Prosecuting Sub-Inspectors examination with credit. The requirement of this rule was mandatory and we feel inclined to hold that there is substance in the allegation that respondent No,3 was not eligible for promotion as Inspector under the then prevalent rules. Even the appellant had not passed this examination at the time of respondent's promotion, but that is not the point in dispute, for what is required to be seen is whether the respondent was qualified for promotion under the rules at the relevant time. He was obviously not so qualified as is borne out by the facts of this case and he will, therefore, be deemed to have been promoted as Prosecuting Inspector only on ad hoc basis.
13. However, in spite of this circumstance, the prayers made by the appellant cannot possibly be granted because of the reasons already mentioned. One of the prayers has already been dealt with. The third is that direction may be issued to the respondents to place the appellant senior to respondent No,3, declaring his induction as Prosecution Inspector/PDSP, as being without lawful authority. We have pointed out before that the impugned seniority list is only with regard to seniority of Prosecuting Sub-Inspectors. This being so, it is not possible to give a direction to the respondents Nos.1 and 2 to place him senior to respondent No,3 in that list, even if it be considered that the latter's promotion as Inspector was not in conformity with the rules. It may be mentioned that the seniority list of Prosecuting Inspectors has neither been shown to have been issued nor placed on the record of his case.
14. For these reasons, we dismiss the appeal as being time-barred. There will, however, be no order as to costs. Parties to be informed.