SHAFIUR RAHMAN, J.--Leave to appeal was granted under Article 212(3) of the Constitution to examine whether the Service Tribunal by its judgment dated 22-3-1989 has correctly held the Service appeal filed by the appellant to be barred by time and also devoid of merit.
2. The appellant joined the service on 4-7-1965 in the Family Planning Board. In 1976, he was in Grade-18 when he was suspended from service and one Mr. Akhtar Zaidi, junior to him, was promoted to the next higher grade (Grade--19) with effect from 5-i1-1976. The Family Planning Board was first governmentalized in 1977 and 'then its employees, those recommended by the Public Service Commission, were made civil servants w.e.f. 11th of May, 1981. On reinstatement in service and after being recommended by the Public Service Commission and absorbed as civil servant in the Population Welfare Programme, the appellant filed various representations claiming promotion from the date on which the official next junior to him, namely Akhtar Zaidi, was promoted and also claiming due seniority in Grade-18 and Grade-19 on the basis of having not been properly superseded.
3. On 29th of May, 1986 was issued a Notification to the following effect:-- "With the approval of the competent authority conveyed vide Establishment Division's U.O.
No.31/1/84-CP.3, dated 21-5-1986, Mr. Lutfi Siddiqui, a BPS-18 Officer in the Population Welfare Division is promoted as Director/Principal Population Welfare Training Institute, (BPS-19), in the same Division with immediate effect.
(2) Mr. Lutfi Siddiqui is posted as Director (BPS-19), Directorate of Stores & Marketing, Population Welfare Division, Karachi until further orders.
(3) He is placed on probation for a period of one year w.e.f. The date he assumes the charge of the post, extensible by order either before or after its termination, by a further period not exceeding one year provided that, if no order has been made by the day following the termination of either of the aforementioned probationary periods the appointment shall be deemed to be held until further orders."
It was followed by another Notification issued on 19th of January, 1987 to the following effect:-- "In continuation of this Division's notification of even number dated 29--5-1986, Mr. Lutfi Siddiqui, Director (S&S), Population Welfare Division, Karachi will, have the benefit of fixation of pay with effect from 1-8-1984 (i.e. The date from which his immediate junior was promoted)."
On 10th of June, 1987, one of his representations was disposed of in the following words:-- .
"With reference to his representation dated 25-2-1987, addressed to Secretary, Population Welfare Division, Islamabad on the above subject, Mr. Lutfi Siddiqui, Director (S&S), Population Welfare Division, Karachi is informed that he was duly considered for, promotion to BPS-19 post by the D.P.C.
On 26-11-1976 but he was not found suitable. His was, therefore, a case of supersession and not that of omission. Further no promotion took place. Between the period from 26-11-1976 to 1-8-1984 and he has already been allowed seniority from 1-8-1984. Thus, there is no basis for claiming seniority w.e.f. 5-12-1976 when his juniors were promoted because he was superseded on that occasion."
It was followed by a Notification dated 22nd of October, 1987, to the following effect:-- "The competent authority has been pleased to permit Mr. Lutfi Siddiqui, Director (S&S), Population Welfare Division, Karachi to count his pre--sumptive seniority as Director (PBS-19) with effect from 11; 5-1981 (the date of promulgation of Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance, 1981). He is allowed refixation of his pay as Director in BPS-19 with effect from 11-5-1981 with no arrears of pay prior to 1-10-1987."
4. The appellant challenged these orders, attacking in his memorandum -of appeal, as hereunder:-- "That the respondent took final decision in respect of the review application and representation from the appellant by issuing Notification dated 22nd October, 1987 which was received by the appellant on 24-10-1987. Copy is produced as Annexure-P.
Even this notification is neither proper nor gives the appellant the relief, he is entitled.
It may be mentioned that the Notification dated 19th January, 1987 became merged in Notification dated 22nd October, 1987.
Hence this appeal is filed against the Notification dated 22nd October, 1987:'
On the question of limitation, the Service Tribunal held as hereunder:-- "He was informed vide Memorandum dated 10-6-1987 that. He was not entitled to the benefits of the service previous to his becoming a civil servant under the Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance, 1981: He preferred this appeal on 19-11-1987 i.e. After more than five months. He has pressed in aid, to cover the period of limitation, a subsequent notification dated 22-10-1987 whereunder he was allowed presumptive seniority in BPS-19 with effect from 11-5-1981 (i.e. The date of promulgation of the aforesaid Ordinance) and fixation of his pay in that grade from the same date but without arrears for the period preceding 1- 10-1987. He had not made any representation or appeal against the order dated 1-6-1987, referred to above. The subsequent notification was issued in connection with some other correspondence.
The appellant feels aggrieved also by the notification dated 22-10-1987, but he did not make any representation nor did he prefer any appeal against it. Therefore, the period of limitation for preferring this appeal lastly accrued to him on 10-6-1987 when he was finally informed that he was not entitled to retrospective seniority/promotion with effect from 5-12-1976, which date constitutes the base of his appeal. This appeal filed on 19-11-1987 is, therefore, manifestly time-barred. The subsequent notification dated 22-10-1987 does not afford a ground for commutation of the period of limitation."
On merits the Tribunal held as hereunder:-- the appellant claims promotion with effect from 26-11-1976 when one of his juniors Mr. Akhtar Zaidi was promoted. This was the period when he was an employee of the Population Planning Council and had not become a civil servant. It has been stated by the respondents in their written objections that the appellant was considered for promotion on that occasion but was not found fit.
This fact is confirmed by the minutes of the meeting of the D.P.C. Held on 26-11-1976. It has further been stated that no promotion had taken place thereafter till 1984. No representation lies in respect of determination of fitness or otherwise for promotion as laid down in section 22 of the Civil Servants Act, 1973; and Rule 4(1) of the Civil Servants (Appeal) Rules, 1977 and also section 4(1) (b) of the Service Tribunals Act, 1973 barring filing of appeals. Accordingly, the appellant has no case on merits even."
6. The appellant appeared in person to argue the case: The respondents were represented by Mr. Niaz Ahmad Khan, Advocate, who also produced the record of the case.
7. On examination of the record of the case we find that the representations made by the appellant were dealt with piecemeal, the last Order/Notifications being of 22nd of October, 1987, and the first of 10th of June, 1987. The appeal before the Tribunal was filed on 19-11-1987 and it being against the order dated 22nd October, 1987, was within time. As this order itself was passed on a representation filed by the appellant against the 'order earlier communicated to him, there was no question of filing another representation against the same to any other authority. Hence, the appeal was within time.
8. The representations made by the appellant were considered by a Committee specially set up for the purpose. The Committee's observations with regard to the entitlement of the appellant, which ultimately found-acceptance, are as hereunder:-- "After examining the facts of the case, the Committee noted that when the D.P.C. Of the Population Planning Division considered Mr. Lutfi Siddiqui for promotion to Grade 19 on 26-11-1976, he was still under suspension and the D.P.C. Could at best defer his case. The D.P.C., however, did not find Mr. Siddiqui "suitable for promotion" although he had been earning consistently Good reports and there was nothing adverse on his record. The Committee observed that the D.P.C. Was evidently influenced in this case by the departmental proceedings then in progress against Mr. Siddiqui who remained under suspension for nine long years on the basis of allegations from which he was duly exonerated in 1985 by the competent authority i.e. The President of Pakistan. In view of these facts, the Committee felt that the decision of the D.P.C. In respect of Mr. Siddiqui in 1976 was obviously unfair, contradictory and against the relevant rules/instructions. The Committee observed that although it is not possible at this stage to recommend antedation of promotion/restoration of Mr. Siddiqui's seniority w.e.f. 5-12-1976 (when his Junior, namely Mr. Akhtar Ali Zaidi was promoted to Grade 19) as they were employees of autonomous bodies, Mr. Siddiqui is at least entitled to reckon his promotion and seniority vis-a-vis his former Juniors w.e.f. May, 1981 when they became civil servants. On that basis, he is also entitled to the fixation of his pay in Grade 19 from the date of his actual promotion.
In view of the foregoing, the Committee unanimously recommended that Mr. Lutfi Siddiqui may be allowed presumptive seniority as Director in the Population Welfare ....And may be allowed to count the period from 11-5-1981 to the date of his actual promotion (29-5-1986) towards increments for fixation of pay as Director in Grade 19."
9. The result of the acceptance of this recommendation was that presumptive pay in Grade 19 has been allowed to be fixed as from 11-5-1981 and the benefits of the increments have been allowed to him. The seniority has been allowed to him in Grade-19 from 1-8-1984 (when the man next junior to him was promoted, for the second time). Arrears of pay were denied to him in Grade-19. He was allowed promotion/pay in Grade-19 from the date that he was actually promoted and that happened to be 29th of May, 1986. So, for the purposes of Grade-19, the appellant has been allowed three different dates; one, for starting the salary in Grade-19 from 11-5-1981, without paying the arrears; the other of counting of seniority from 1-8-1984 and the third of actual pay in Grade-19 with enhanced increments from 29-5-1986. All this has been done in recognition of the fact that the supersession of the appellant, if at all it had taken place, was in violation of the law as then applicable, when Mr. Akhtar Zaidi was promoted on 5-11-1976. If this was the basis, then full amends should have been made and the `next below rule' which has been applied from 1-8-1984, should have been extended to him as from 5-11-1976. However, we find a very concrete reason for not going that far back. It is mentioned that on 5-11-1976 the Family Planning Board was an autonomous body and its employees were not Government servants, though the Government Rules of Promotion etc. Were applied to it by reference and hence the corrective measure could not take place assuming that the appellant was a Government servant governed by the Rules applicable to the Government servants. This view of the Government is sound and finds support in the decision of this Court in Zainul Abidin v. Multan Central Co-operative Bank Limited, Multan (PLD 1966 SC 445), wherein the Service Rules of the Government were applied to an autonomous body but they were held not to be applicable stricto senso, but only by way of reference.
10. Two subsequent decisions of this Court namely, Federation of Pakistan and another v. Riaz Ahmad Baig and another (1984 SCMR 759) and Federation of Pakistan and another v. Ali Asghar Khan (1988 SCMR 1175) sustain the conclusion that as from 30-4-1977, and not before, the Services in the Family Planning Board were governmentalized temporarily and finally under Ordinance No. XIV of 1981. On approval of the Public Service Commission, they were made civil servants as from 11th of May, 1981.
11. Section 8 of Ordinance No. XIV of 1981 [Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance, 19811 provided that "Seniority of persons appointed under section 3 shall be determined in a Grade from the date of appointment to that Grade in -the Council or, as the case may be, the Board". It also appears from the history of the case that Mr. Akhtar Zaidi was promoted earlier on account of his Baluchistan domicile, he being the solitary candidate of that Province. It is also an admitted fact that the promotions on the basis of domicile were not in vogue at that stage.
12. It is clear from the decision taken by the Government as reproduced above that the wrong had been done to the appellant in the matter of promotion to Grade-19, in the matter of fixation of his seniority, in the matter of dealing with him departmentally over a long period from 1976 to 1984. The rectification should have been followed in all respects as from 11-5-1981, the date from which the appellant became a civil servant.
13. In the circumstances, this appeal is partly accepted. The Tribunal's judgment is set aside. The appeal before the Tribunal is held to be within time and the appellant is held entitled to be treated as Grade-19 Officer as from 11-5--1981 for the purposes of pay, seniority, for claiming arrears of pay in Grade-19 and for computation of pension, as the Officer/appellant has already superannuated on 15-7-1988.