' CH. HASAN NAWAZ (MEMBER).---The appellant was appointed as Senior Research Assistant (BPS- 16) in the office of Chief Engineer, Central Monitoring Organization WAPDA on 3-12-1975 (Annex-A).
The post was later redesignated as Assistant Research Officer and the office in which he was posted was given the name of Scarps Monitoring WAPDA. He worked under the control of respondents Nos.3 and 4 for the period from 16-3-1976 to 21-3-1976 in the Office of Chief Engineer, Scarps Monitoring WAPDA. During this period, respondent No,4 had been working as a Senior Agricultural Economist.
2. It is alleged in paragraph 3 of the appeal that respondent No,4 gave adverse report on the appellant's work and performance for the period from 16-3-1976 to 2-12-1976 and that the report recorded by respondent No,3 for the period from 1-7-1977 to 21-3-1978 was also adverse. There is no denial of the fact that the adverse remarks recorded by respondent No,3 for the period from 1-7- 1977 to 21-3-1978 were communicated to the appellant through letter dated 10-2-1987 during the pendency of this appeal.
3. On 12-4-1979 the Chief Engineer (Administration) Water, WAPDA (respondent No,2) circulated a seniority list (Annex-H), where respondents Nos.7 to 12 were shown junior to the appellant whose name was placed against serial number 3 of the list. Respondents Nos.7 to 10 were promoted as Junior Research Officers by order dated 28-7-1982. Later, in the month of November, 1982 respondents Nos.11 to 12 were also promoted. Although the subsequent order of promotion passed in November, 1982 does not appear to have been placed on the record, the fact of promotion has not been denied by the respondents. The appellant was also subsequently promoted with effect from August, 1986.
4. In the background of these facts, on 17-7-1986 the appellant filed the present appeal under section 4 of the Service Tribunals Act, 1973 with the following four prayers:- "(1) The uncommunicated adverse remarks from the confidential record as noted above, may be ordered to be expunged and a note to this effect may be ordered to be recorded individually on all the aforenoted confidential reports of the appellant.
(2) The act of WAPDA Selection Board to defer promotion of the appellant on the basis of uncommunicated adverse confidential reports may be declared as being without lawful justification and the appellant may be ordered to be promoted as Junior Research Officer with effect from the date respondents Nos.7 to 10 were promoted alongwith conferment of all financial benefits.
(3) The respondents Nos.3 to 6 levelled false allegations against the appellant which hurt him and lowered him in the estimation of his superior officers, therefore, a case of misconduct may be ordered to be initiated against all of them.
(4) The office order dated 28-2-1978 may be declared as an invalid and infructuous office order."
4-A. In so far as the first prayer goes, we can ill-afford to ignore certain material facts. The first is that in the heading of the appeal it is mentioned that it is meant for the expunction of adverse remarks for the periods from 16-3-1976 to 2-12-1976, 1-7-1977 to 21-3-1978 and 1-7-1978 to 7-3-1979.
However, in paragraph 3-of the appeal regarding the adverse reports, we find only a mention of two periods from 16-3-1976 to 2-12-1976 and 1-7-1977 to 21-3-1978 and nothing seems to have been said in this paragraph about the report regarding the period from 1-7-1978 to 7-3-1979. The second important fact is that neither in his representation dated 8-5-1979 (Annex-B) nor the subsequent one dated 31-8-1980 (Annex-C) addressed to the General Manager, Planning Division, WAPDA the appellant made any mention of the adverse remarks in respect of the period from 1-7-1978 to 3-7- 1979. These representations asked for the expunction of remarks only in respect of the period from 16-3-1976 to 21-3-1978. For the first time after the heading, we do find a mention of the report regarding the period from 1-7-1978 to 7-3-1979 in paragraph 9 (c) of the appeal; but this mention was made during the comments on respondent No,1 D.O. Letter dated 18-6-1986 addressed on the subject to Mr. Liaquat Baluch, then Member of the National Assembly. It is also worth notice that it appears from the allegations made in paragraph 9(c) of the rejoinder filed on 17-8-1988 by the appellant that the report in respect of the period from 1-7-1978 to 7-3-1979 was not treated as adverse either by the respondents or the appellant.
5. The last, but by no means the least, important fact in respect of these reports appearing from paragraph 3 of the written statement filed by the Authority is that the remarks for the period from 1- 7-1977 to 21-3-1978 were communicated to the appellant through covering letter No,CE/SF/2-E/890, dated 10-2-1987. The reports for the other two periods from 16-3-1976 to 2-12-1976 and 1-7-1977 to 21-3-1978 have not so far been communicated, which, as it appears from the pleadings of the parties, is indicative of the fact that they have not been treated as adverse. We noticed from the submissions made by the respondents' learned counsel during the course of arguments that a representation has been made by the appellant against these remarks and that it has not yet been disposed of by the competent authority. On the basis of aforementioned facts, we feel inclined to hold that the prayer regarding expunction of adverse remarks is rather premature and the appellant will be well advised to have recourse to the Tribunal with an appeal for expunction of remarks after his representation is rejected.
6. This aspect of the matter apart, we feel that the appeal appears to be bad for misjoinder of causes of action. The appeal for expunction of adverse remarks should have been independent of the appeal for setting aside the impugned orders of promotion of respondents Nos.7 to 12 who were junior to the appellant. Both the prayers are based on distinct causes of action and they should have been made the subject of separate appeals where the appellant would have been able to set up independent and distinct cases for the reliefs sought by him. The result of misjoinder of causes of action is that the facts have been so intermingled and confused that there is no emphasis on any of the prayers. We have a feeling that the reliefs sought by him are not the logical consequence of the pleadings. For that matter this confusion has made it extremely difficult for us to pick out material facts to determine the question of limitation and competency of appeal. An appeal under section 4 of the Act is to be preceded by observance of certain statutory formalities and it is the duty of an appellant to state clearly the facts showing that those formalities have been duly observed and that the appeal is competent. However, this does not appear to have been done in the present case and we feel inclined to hold that the appeal in the present form is not maintainable.
7. The second prayer is that the act of WAPDA Selection Board to defer promotion of the appellant on the basis of uncommunicated adverse confidential reports may be declared as being without lawful justification and the appellant may be ordered to be promoted as Junior Research Officer with effect from the date respondents Nos.7 to 10 were promoted alongwith conferment of all fmancial benefits". The grant of this relief involves cancellation of order dated 28-7-1982 whereby respondents Nos.7 to 10 were promoted as Junior Research Officers.
8. The appellant addressed a representation to the Chief Engineer Coordination (Water) WAPDA on 18-8-1982 (Annex-J) where it was contended that respondents No,7 to 10 had been promoted in spite of the fact that they were junior to him in accordance with the seniority list of 12-4-1979. It was requested that the appellant may be apprised of the reasons which weighed with the competent authority for withholding his promotion as Junior Research Officer (Economics) in spite of his seniority. In response, he was informed by the Chief Engineer through letter dated 8-1-1983 (Annexure-L) that his case for promotion was considered by the selection board of Chief Engineer and that he was not considered suitable for promotion. After having been supplied this information, on 30-5-1983, he addressed an appeal, again to the Chief Engineer, where it was pleaded that he had crossed the efficiency bar with effect from December, 1981 and the possible obstacle in the way of his promotion had been removed. He also said in this representation that he had been exonerated of the charge of having written a complaint to the Chief Martial Law Administrator. The request was that he may be promoted with retrospective effect alongwith all consequential financial benefits. He was informed by letter dated 7-7-1983 (Annexure-M) that his case for promotion as Junior .Research Officer will be put up for reconsideration before the selection board after the receipt of his A C R for the year ending on 30-6-1983 and the availability of vacancy. On receipt of this information he filed a departmental appeal to the Chairman WAPDA (respondent No,1) on 30-7-1983. This appeal has not so far been decided.
9. These facts leave no room for any doubt that the appellant's case was duly considered alongwith others by the selection board and that he was not found suitable for promotion. The written statement filed by the respondents shows that his annual confidential reports were taken into consideration by the board while determining the question of his suitability for promotion.
However, the averments made in the written statement and certain other documents, are suggestive of the fact that the board's reluctance for approval of his promotion was not merely based on adverse remarks in his annual confidential reports. Even if the reports are not adverse, the competent authority is still within its power to determine the suitability of a person on the basis of other relevant circumstances. In his pleadings the appellant has laid much stress on the fact that his promotion was withheld on the basis of reports which had not been communicated. As already pointed out before, we find that circumstances other than the adverse remarks appear also to have been taken into consideration for determination of his fitness to be promoted as Junior Research Officer. This situation brings us to section 4(1)(b) of the Act which provides 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 to or hold a particular post or to be mooted to a higher grade. Since the appellant's promotion was withheld after due consideration of his case by the board, the present appeal is not competent.
10. An objection regarding limitation has also been raised in defence. As we have seen, the impugned order was passed on 28-7-1982. Representations dated 18-8-1982 and 30-5-1983 were not addressed to the competent authority. The departmental appeal against the impugned order was finally sent to the Chairman (respondent No,1) on 30-7-1983. We might say that the appellant had been diligently pursuing his matter before the Chief Engineer Co-ordination and that he was not guilty of such lapses as could have deprived him of the concession of condonation of delay in filing the departmental appeal. Therefore we take the departmental appeal of 30-7-1983 as being within time. Even then the present appeal filed on 17-7-1986 appears to be time-barred.
11. On the question of limitation, another circumstance is worth notice. The Chairman WAPDA wrote a D.O. Letter to Mr. Liaqat Baluch then Member of National Assembly on 18-6-1986, in response to his letters dated 26-5-1986 and 12-6-1986. In this letter, certain grounds were mentioned for disallowing promotion to the appellant. The Chairman justified the board's action by saying that his performance during the probationary period was unsatisfactory and that it had to be extended for that reason. It was also stated in this letter that the confidential report for the period from 1-7-1977 to 21-3-1978 contained very serious adverse remarks against him and the reporting officer's assessm ent was that he was not fit for promotion. It was further stated that the report for the period from 1-7-1978 to 7-3-1979 was also adverse.
12. Although it has not been specifically so pleaded, the appellant's case seems to be that the appeal is within time because of having been filed within thirty days of D.O. Letter dated 18-6-1986.
But we do not find any force in this argument, for this letter was never addressed to the appellant and was meant only for Liaqat Baluch. It cannot, therefore, be taken to have amounted to the rejection of his departmental appeal, which could have had the effect of starting the period of limitation. The appeal of 30-7-1983, even if taken as a departmental appeal or representation within the meaning of section 4 (1)(a) of the Act, is still pending and the present appeal filed long after 120 days of its institution is obviously barred by time.
13. The third prayer is that "a case of misconduct may be ordered to be initiated against respondents Nos.3 to 6" because they "levelled false allegations against the appellant which hurt him and lowered him in the estimation of his superior officers". We are of the view that this prayer hardly requires any discussion and it will be sufficient to say that issuance of an order of this kind is beyond the jurisdiction of this Tribunal; which is so even if it be assumed that respondents Nos. 3 to 6 did level any false allegation against him.
14. The last prayer is that order dated 28-2-1978 may be declared as invalid and infructuous. In the first place, the prayer appears to be abrupt and without any background. We do find a mention of this letter in paragraph 9 (a) of the appeal, but it is clearly casual and it is difficult to spell out from the appeal that the appellant intended to assail the validity of this letter. While discussing respondent No,1's D.O. Letter dated 18-6-1986, the appellant made a mention of this order and tried to establish that it was without any justification. However, we are in no doubt that the appeal does not appear to have been directed against this order. Apart from this aspect of the matter, even otherwise the appeal is incompetent under section 4 (1) (a) of the Act on account of appellant's failure to prefer any departmental appeal against this order.
15. For the reasons mentioned above the appeal is dismissed. There will be no order as to costs.