JUSTICE (RTD) MUNAWAR ALI KHAN, (CHAIRMAN)- This case arose about 13 years ago in 1977 when the appellant Mohammad Sachal who was working as Turner under Agriculture Engineer, Khairpur, was appointed on his own request to the post of Foreman. The appellant's case is that he applied for promotion from the post of Turner to that of Foreman but he was appointed to the latter post as a new entrant. Consequently, instead of protecting his existing pay of Rs.612/= that he was drawing as Turner in NPS-9, he was allowed Rs.430/ = , the minimum of the NPS-11. As he sustained loss of Rs.182/= per month, he made representation to the Director, Agriculture Engineering who in his turn recommended his case to the Secretary Agriculture Department. By his order dated 21.2.1979 the said Secretary rejected the appellant's representation. Thereafter the continued making applications to the authorities. In 1987, after similar request of one Azizullah Foreman and other officials was acceded to, the appellant's case was again referred by the Director Engineering to the Secretary, Agriculture Department. This the his case was taken up by the Administrative Secretary with the Finance Department but some how it was turned down by the Secretary of that Department vide his letter dated 28.12.1987.
2. The appellant then approached this Tribunal in Service appeal which was however, withdrawn by him due to legal lacuna of non-compliance of the mandatory requirement of first exhausting departmental remedy. In fulfillment of the said legal requirement, he filed departmental appeal to the Chief Secretary on 1.2.1988 against the rejection or dated 28.12.1987 passed by the Secretary Finance Department pending decision in his departmental appeal, the appellant approached the Agriculture Minister who called for the papers of his case. Accordingly the summary prepared for the Minister was communicated through Secretary Agriculture Department, who instead of placing the case before the Minister passed order at his own level, advising the appellant to approach the Service Tribunal for the desired relief vide his letter/order dated 30.5.1990 endorsed to the appellant by Agriculture Engineer by his endorsement dated 18.7.1990. Thereafter the appellant filed the present appeal on 15.8.1990.
We heard the arguments of he appellant himself and of Mr. Zawwar Hussain Shah on behalf of the official respondent. We also carefully went through the relevant record.
3. As disclosed in the opening paragraph of the memo of appeal, the present appeal is directed against the order dated 30.5.1990 passed by the respondent No:3 (i.e. Secretary, Agriculture Department) vide endorsement dated 18.7.1990 of the Agriculture Engineer Khairpur. Inter alia the argument of the learned AAG was that the appeal was hopelessly the-barred. In order to examine this argument we have to sec which was the first ever order, whereby the appellant was aggrieved.
On perusal of the memo of appeal which contained the necessary details of the appellant's case, it was found that the appellant's representation for protecting his pay of Rs.612/ = , he was drawing as Turner was rejected for the first the by order dated 21.2.79 PW by the Secretary Agriculture Department. Obviously this was the first original order which had aggrieved the appellant. Instead of taking the said order in departmental appeal before the Chief Secretary he kept on making applications to the higher authorities for nearly eight years, thereby depriving himself of the valuable right of filing departmental appeal within the. As he did not fulfill the mandatory requirement of exhausting the departmental remedy by way of filing departmental appeal from the aforesaid order, this appeal was liable to be dismissed on that ground.
4. However, in 1987 after the request of one Azizullah Foreman and other officials similar to that of the appellant was accepted, the appellant's case was again referred by the Director, Engineering to the Secretary Agriculture Department obviously for reconsideration on the above ground. By its letter date4 3rd December, 1987, the Agriculture Department, informed the Director General Agriculture Engineering, Hyderabad that the Finance Department had turned down the appellant's request for protection of his pay of Turner. Thus the appellant got another opportunity of challenging the Finance Department's refusal in departmental appeal. But instead he filed premature appeal before this Tribunal. Which was soon withdrawn as the appellant realized that it suffered from above legal lacuna. No doubt after withdrawal of his appeal from the Tribunal, the appellant did file departmental appeal to the Chief Secretary on 1.2.1988. But some how he neither wailed for the decision of the said appeal nor availed the alternative course of filing appeal before this Tribunal after expiry of 90 days from filing of the departmental appeal. In fact he abandoned his interest in that appeal. It is the appellant's own admission that during the pendency of the said appeal he diverted his attention to another forum, namely the Minister concerned. Although the Summary was prepared for the Minister but when it was communicated through Secretary, Agriculture Department he instead of placing it before the Minister, advised the appellant to seek the desired relief by filing appeal before the Service Tribunal. Accordingly he filed the present appeal. It is thus clear that the appellant did not pursue the departmental appeal he had filed before the competent authority namely the Chief Secretary nor came to this Tribunal after expiry of statutory period of 90 days from the said departmental appeal. Had he followed such legal course his appeal before this Tribunal should have been filed some the in 1989. As pointed out above he actually came to this Tribunal after the delay of about to years as he filed the present appeal on 15.8.1990. The objection of the learned AAG about limitation is therefore sustained.
5. Even on merits the appellant has absolutely no case. No where through out the memo of his appeal he has stated that the authorities, refusal to protect his pay of Turner was in violation of any law or rule. On the contrary the careful perusal of the memo of appeal would show that all that he pleaded was that his case was the case of hardship and that he deserved the desired relief in relaxation of the relevant rules. When the appellant was called up to satisfy us if the competent authority had the power to make relaxation of the relevant rules in his case, he was unable to lay hands on any such rule. Even if such rule was in existence, the authority in whom the power of relaxation of the rules vested was alone competent to exercise that power. Surely the appellant could not expect the Service Tribunal to allow the relaxation of the rules by exercising power not vested in it. According to the appellant it was rule 41 (a) (i) of SCSR which was required to be relaxed for the purpose of protecting his last pay of Turner. We have perused the said rule which in bur opinion, was not applicable in the appellant's case.
6. It is true that the appellant had applied for promotion from the post of Turner to that of Foreman.
But no one prevented him from refusing to accept the Foreman's appointment particularly when his existing pay was not protected. He had to thank himself if he accepted the said appointment at lower pay. In any case his direct appointment to higher post of Foreman was definitely beneficial to- him in the long run. The appellant's reliance on the case of Azizullah, Foreman also did not help him. The plea raised in the written statement in this regard was that Azizullah's case was totally different from the appellant's case in that unlike the appellant, he was working as Foreman even prior to his induction in NPS-II. We had no material before us to controvert the above plea. Even otherwise if Azizullah was given the benefit as a matter of undue favour, the applicant could not insist that he to should be given something which was not legal. What we mean to emphasize is that the appellant had to make out his case legally grounding it on any specific law or rule. We are sorry to say that he has failed to do so.
7. In view of the above discussion the appeal must fail which is accordingly dismissed with no order as to costs.
Given under our hands and the Seal of this Tribunal on this 21st day of January,.1991 at Karachi.