JUSTICE (RTD.) MUNAWARALI KHAN (CHAIRMAN). Appellant, Muhammad Hussain Memon who is Sub-Registrar Grade-I has filed three appeals bearing Nos. 85/91, 106/91 and 107/91, with the same factual back ground which may briefly be summarized as follow. The appellant joined Registration Department as Sub-Registrar Grade-II with effect from 1-4-1968 and was promoted as Sub- Registrar Grade-I on 22-3-1977. By notification dated 10- 11-1986, the appellant following the recommendations of the Departmental Promotion Committee was promoted to the post of Inspector (BS-16). After Sub- Registrar's post was upgraded to BS-16 and had consequently become inter- transferrable with post of Inspector, the appellant was re-transferred as Sub- Registrar (BS-16) w.e.f. 19-12-1990. On the other hand, the private respondent Ghulam Dastagir Qazi was inducted in the cadre of Sub-Registrar's Grade-II with effect from 19-12-1963 and was promoted to higher post of Sub-Registrar Grade-I on 15-12-1969, Somehow the private respondent resigned from service and his resignation was accepted vide order dated 22-1-1978. After lapse of about six years he made application dated 21-12-1983 for his reinduction in service on the plea that he had tendered his resignation under the compelling circumstances. His prayer was ultimately allowed and he as reinstated in service, treating the intervening period for which he remained out of service as extra ordinary leave, without pay vide Senior Member Board of Revenue's order.
2. The seniority list of Sub-Registrars Grade-I was issued on 24-11-1988, wherein the name of the private respondent was shown at S. No. 1 whereas the appellant's name appeared at S. No. 7. There upon the appellant made two departmental appeals on the same date i.e. 7-12-1988. In one of the said appeals he challenged the private respondent's reinstatement order dated 6-11-1986 and in the second appeal he called in question the correctness of the aforementioned seniority list issued on 24-11-1988. In pursuance of his appeal against the respondent's reinstatement, the appellant was given personal hearing but as it continued to remain undecided, he submitted reminder on 5- 6-1991 for expediting the decision of his said appeal. As a result, his said appeal was rejected by order dated 17-7-1991 which was received by the appellant on 20-7-1991. Accordingly the appellant filed Appeal No.85/1991 on 17-8-1991, praying for setting aside the Chief Secretary's order dated 17- 7-1991 and Senior Member Board of Revenue's order dated 6-11-1986.
3. However the appellant's departmental appeal dated 7-12-1988 directed against the seniority list of Sub-Registrars Grade-I issued on 24-11-1988, remained undecided. On the contrary by order No. SECY (RS&EP)/BOR/91- 367 dated 14th Oct. 1991, the competent authority by invoking the powers u/s 24 Sindh Civil Servants Act 1973, allowed the private respondent the benefit of rule 13 of the Sindh Civil Servants (Probation, confirmation and Seniority) Rules 1975 and confirmed the seniority position assigned to him in the said seniority list. Treating this order as order passed in his departmental appeal, the appellant filed Appeal No. 107/1991 on 13-11-1991 before this Tribunal with prayer that the aforementioned order dated 14th October, 1991 be set aside.
4. On the same date i.e. 13-11-1991 the appellant filed his third appeal No. 106/91 in which he called in question the BOR's notification No. SECY (RS&EP)/BOR 91-368 dated 14-10-1991 containing the order whereby the private respondent was given the benefit of seniority in BS-16, as he was deemed to have been promoted to the said BS-16 on the same date on which Ghulam Nabi Jakhro was absorbed in the Registration Department.
5. We heard the arguments or Mr. Manzoor Ali Khan for the appellant, Mr. Abdul Sattar Mughal for the private respondent and Mr. Ali Bux Laghan on behalf of the official respondents. We also carefully and with help of above learned counsel went through the entire relevant material available on record.
6. It appears to us that appellant has filed all the three appeals one after the other out of sheer confusion. He little realized that the relief that he claimed in all the appeals was same embedded in the same foundation.
We think that all the three appeals are liable to be dismissed on technical grounds, without going into their merits. Taking up first the Appeal No.85/91 we may refer to the appellant's grievance and the relief sought by him in the appeal. For this purpose the memo of the appeal as it begins may be reproduced as follows; "Aggrieved by Respondent No. 1's Appellate Final order rejecting appellant's departmental appeal against Respondent No. 2's Original Final Order No. 39-ll- 84/Bud(l)-405/86 dated 6-11-1986, as communicated under Secretary (RS&EP)/BOR/91-257 dated 17-7-1991 received by the appellant on 20-7-1991, the appellant respectfully begs to prefer this appeal to the Honourable Tribunal. .... ". Apparently the appellant had originally grievance against the order of respondent No. 2 (Senior Member Board of Revenue), dated 6-11-1986 whereby the private respondent was reinstated in service, treating the period from 18-1- 1978 to 6-11-1986 during which he remained out of service following the acceptance of his resignations, as extra-ordinary leave without pay. The other order by which the appellant felt aggrieved was of respondent No.1 (Chief Secretary) who rejected his departmental appeal filed against the first mentioned order. Accordingly the appellant's prayer in the aforesaid appeal (No.85/91) was for setting aside both the above orders; original order dated 6-11-1986 and appellate order dated 17-7-1991.
7. It was contended by the private respondent's learned counsel that since the appellant was not affected by the private respondent's reinstatement in service, he had no cause of action against the order of his reinstatement. On the other hand the arguments of the appellant's learned counsel was that his client had genuine apprehension that reinstatement of the private respondent would affect his seniority in cadre of Sub-Registrars and his such apprehension came to be true when seniority list of Sub-Registrars Grade-I was issued on 24-11-1988, wherein the private respondent was shown senior to the appellant.
8. The perusal of the reinstatement order would show that the private respondent was reinstated as Sub-Registrar. On the date of the departmental appeal, the appellant was admittedly holding the higher post of Inspector (BS-16) to which he was promoted on recommendations of the Departmental Promotion Committee vide BOR's notification dated 10-11-1986. It was also clear from the notification that the post of Sub-Registrar from which he was promoted was BS-9 post.
Similarly the Sub-Registrar's post to which the private respondent was restored was also on BS-9 post. Therefore the appellant was hot in any way immediately affected by the private respondent's reinstatement in lower post of Sub-Registrar. Even according to appellant's own case he had only apprehension that his reinstatement would affect his seniority in the cadre of Sub-Registrars. In other words he had. Fear that sometime in future the private respondent's reinstatement would affect his seniority. Some thing which was to happen in future could not give the appellant any cause of action. Howsoever his apprehension might be strong, it could not provide him the basis for initiating a legal action. It was only after it became reality that the appellant affected by such eventuality would be within his right to have recourse to legal remedy. Because in the meantime there was always a possibility of intervention of un-foreseen circumstances which might prevent the occurrence of the such event. As a matter of fact even the appellant himself did not challenge the order of the reinstatement as soon as it was passed. According to appeal Rules he was expected to file departmental appeal within 30 days of the passing of the said order. Instead he waited for nearly two years, for which he has given absolutely no explanation and it was after the seniority list of Sub-Registrars Grade-I was published that he challenged the order. But simultaneously he also filed departmental appeal against the seniority list which according to him, did not relect his correct seniority position vis-a-vis the private respondent.
9. We are, accordingly of the view that the order of the private respondent's reinstatement did not provide any cause of action to the appellant. That was precisely the reason that the appellant's departmental appeal was dismissed by order dated 17-7-1991. Para 2 of the said order which is relevant reads as under: It is the inform you that your said appeal was considered by the Chief Secretary, Government of Sindh and rejected on the ground that you being Inspector of Registration Offices in BS-16 have no locus standi to challenge the reinstatement of a person as Sub- Registrar (BS-14)."
We encourse. The reasoning adopted in the above order for rejecting the appellant's departmental appeal, challenging the private respondent's reinstatement. The departmental appeal was liable to be dismissed also for the reason of being time-barred. As pointed out above the departmental appeal which was required to be filed within 30 days of the reinstatement order, was actually filed after nearly two years. The appeal barred by limitation was any thing but legal. Such appeal being illegal could not be held to have been filed in fulfilment ' of mandatory legal requirement. For the fore-going reasons Appeal No.85/91 was not sustainable and is therefore dismissed with no order as to costs.
10. Coming to appeal No.107/91, it is found that the appellant felt aggrieved by the order No.SECY (RS&E)/BOR/91-367 dated 14-10-1991 passed in pursuance of Section 24 of the Sindh Civil Servants Act 1973. This is clear from the opening paragraph of the memo of appeal. Even in prayer clause the said order has been sought to be set aside. In this appeal the fore most objection raised on behalf of the respondents was that it was premature in-as much as that it was filed before this Tribunal without first exhausting the departmental remedy as required by proviso (a) of Section 4 of the Sindh Service Tribunals Act 1973. The said proviso reads as under: "(a) where an appeal review or representation to a departmental authority is provided under the Sindh Civil Servants Act, 1973, or any rules, against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred;"
It is clear from the above proviso that before targeting the impugned order before this Tribunal in the above appeal, it was mandatory for the appellant to have challenged it before the competent departmental authority. It is an admitted position that no departmental remedy was availed against the order dated 14-10- 1991 referred hereinabove. However the appellant's learned counsel referred to the departmental appeal filed on 7-12-1988, wherein the appellant had questioned the correctness of seniority list of Sub-Registrars-Grade-I issued on 24-11-1988.
His contention was that since the said departmental appeal remained undecided and in the meantime the above impugned order was passed in confirmation of the seniority position of the private respondent as reflected in the said seniority list, that order (i.e. Impugned order) should, by implication, be treated as order passed in the departmental appeal. We regret our inability to agree with this argument. The order dated 14-10-1991 was an independent order which was passed u/s 24 of the Sindh Civil Servants Act 1973. It is only in exceptional circumstances and in cases of hardship that exercise of residual jurisdiction conferred by the said section is permissible. As such it can not be held to have been exercised in the departmental appeal, disposing the appellant's objections against the entries of the seniority list which are invariably made in normal circumstances.
11. It would appear that the seniority list issued on 24-11-1988 no doubt gave the appellant the much-needed cause of action and even the departmental appeal filed by him on 7-12-1988 against the said seniority list was perfectly within time. But unfortunately he thereafter failed to keep the right track as he neither waited for final decision of his departmental appeal nor availed the earlier option of waiting for ninety days and then proceedings to file appeal before the Service Tribunal within next 30 days. Even otherwise it is not the seniority list hereinabove but the order dated 14-10-1991 which has been impugned in the appeal No. 107/91. As pointed out above, since the said order was not challenged before the appropriated higher departmental authority, the appeal against the said order before this Tribunal was premature. Consequently Appeal No.107/91 is dismissed with no order as to costs.
12. Lastly comes the appeal No.106/91 which is directed against BOR's notification No.SECY (RS&EP)/BOR/91-368 dated 14-10-91 containing the order passed u/s 24 Sindh Civil Servants Act 1973 whereby the private respondent was allowed the benefit of rule 13 of the Sindh Civil Servants (Probation Confirmation and Seniority) Rules and is consequence was deemed to have been promoted in BS-16 w.e.f. 6-12-1980 on which Mr. Ghulam Nabi Jakhio was absorbed in the Registration Department. The appellant's prayer is that the said order be set aside. In course of their arguments, the learned counsel for the respondents once again raised the same legal objection which they had raised in Appeal No.107/91. According to them like the last mentioned appeal, this appeal (Appeal No.106/91) too was premature as it was filed before exhausting the departmental remedy. While admitting that the impugned order was not separately challenged, before the higher departmental authority, the appellant's learned counsel more or less repeated the same arguments on the issue of maturity of the appeal which he had made in Appeal No.107/91. We were not impressed by his arguments in that appeal which was therefore dismissed.
Likewise the said arguments are unacceptable to us even in Appeal No.106/91. Accordingly this appeal is also dismissed with no order as to costs.
13. Given under our hands and the seal of this Tribunal this 30th day of December, 1992, at Karachi.