ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---The facts of this appeal are that the appellant Mr. Abdul Hamid was serving as LDC (B-5) when he was promoted as UDC (B-7) by order dated 15th October, s1985 and was placed on probationary period for a period of one year, with effect from 7- 10-1985. Later on, by order dated 19th May, 1991, in supersession of the earlier order dated 15-10- 1985, the appellant was reverted to his original post of LDC with effect from 21-12-1988. Again on the same day, by order dated 19th May, 1991, he was promoted as UDC (B-7) with effect from 22-12- 1988. In the meantime, the respondent department issued a revised seniority list of UDCs, which was prepared in consultation with the Establishment Division, wherein the name of respondent No. 3, Muhammad Yousuf, was placed at S.No.1 and the appellant's name at S.No. 2. The respondent No. 3 was granted selection Grade-9 with effect from 4-8-1991, by order dated 10th August, 1991. Being aggrieved with the revised seniority list of UDCs issued on 16th May, 1991, and grant of selection grade to respondent No. 3, by order dated 10th August, 1991, the appellant made a departmental appeal to the Secretary, Ministry of Local Government and Rural Development on 10-9-1991. The appellant did not get any response to his appeal. He, however, continued making applications and reminders from time to time right from 12-1-1992 to 25-3-1993, but with no result. Meanwhile, the department issued a tentative cadre-wise seniority list of Assistants and the UDCs, vide letter dated 11th August, 1993, wherein the earlier position of seniority of the appellant vis-a-vis respondent No.3 was maintained. The appellant made yet another representation to the Deputy Director (Adorn.) on 18-8-1993 and it was stated that he had already filed petition with the higher authorities for redressal of his grievance. Thereafter, he continued sending reminders to the department and in reply to his reminder dated 16-2-1994 wherein he had requested for decision on his appeal dated 10-9-1991, he was informed vide Memorandum dated 28-2-1994 that the Ministry had already communicated to him the decision on his appeal on 28-2-1993 and the NCRD also had endorsed that decision to him on 18-l0-1993. He made another application dated 2-3-1994 to the Secretary requesting therein for final decision on his appeal. In reply the appellant was informed vide letter dated 23rd April, 1994 by the respondent department and the contents of this letter are as under: "To Mr. Abdul Hameed, Upper Division Clerk, NCRD, Islamabad.
Subject: APPEAL AGAINST ORDER OF PETITIONER'S PROMOTION AND THEREBY A JUNIOR'S PROMOTION.
Kindly refer to his application dated 2-3-1994 addressed to the Secretary, Ministry of Local Government and Rural Development, Mr. Abdul Hameed, UDC, NCRD is informed that his application dated 19-2-1993 for redressal of his grievances was not received is this Ministry.
However, as far as his appeal-dated 29-12-1992, it is stated that his case was considered in the light of recruitment rules and he was informed -of the position vide letter number even dated 28th February, 1993 (a copy enclosed).
(Sd.) Muhammad Mohsin, Section Officer (H&R):"
Treating this letter as final order, the appellant has filed this appeal before the Tribunal on 26-5- 1994 under section 4 of the Service Tribunals Act, 1973 with the prayer that he may be declared senior to respondent No. 3 and allow selection grade B-9 from due date. Alongwith the memo of appeal, the appellant has filed application for condonation of delay under section 5 of the Limitation Act. The grounds taken in the application are that the impugned order dated 19-5-1991 was received by him on 3-9-1991. He made departmental appeal on 10-9-1991 which was not responded to in spite of his having made numerous applications right from 12-1-1992 till 2-3-1994.
The only reply-dated 23-4-1994 was received by him on 26-4-1994 whereafter he preferred this appeal before the Tribunal on 26-5-1994 and that the appeal is in time.
2. From the abovementioned facts, it is clear that cause of action accrued to the appellant first time on 16th May, 1991 when in the seniority list his name as UDC was shown below the respondent No. 3, and second time when respondent No. 3 was granted selection grade B-9 by order dated 10th August, 1991. He made departmental appeal against both the grievances on 10-9-1991 and in view of the Supreme Court decision reported in 1982 SCM R 582 (Haji Kadir Bux v. Province of Sindh), the appellant was supposed to file appeal before the Tribunal within thirty days after the expiry of waiting period of 90 days, which he failed to do and chose to make representations after representations at his own risk and as such made his appeal time-barred. The appellant in reply to his application dated 2-3-1994 was informed by the department vide letter dated 23-4-1994 (this letter has been reproduced above) that his appeal dated 29-12-1992 was considered in the light of the recruitment rules and he was informed of the position vide letter dated 28th February, 1993. For the sake of convenience, we consider it necessary to reproduce, the letter dated 28th February, 1993 and it reads as under:-- "Government of Pakistan Ministry of Local Government and Rural Development No. F. 1-1/91-(R),Islamabad, the February 28, 1993.
To Mr. Abdul Hameed, Upper Division Clerk, NCRD, Islamabad.
Subject: APPEAL AGAINST ORDER OF PETITIONER'S PROMOTION AND THEREBY A JUNIOR'S PROMOTION.
With reference to his representation dated 29-12-1992 on the subject mentioned above, addressed to the Secretary, Ministry of Local Government and Rural Development, Mr. Abdul Hameed, UDC, NCRD, Islamabad is informed that the facts narrated by him in his representation have been examined and it is pointed out that:--
(i) Regional quota is observed once at the time of initial recruitment to the post and not on promotion which is based on seniority;
(ii) Your earlier representation on the point was considered by the Establishment Division who decided that your promotion was against the rules and consequently you were demoted; and
(iii) Promotion of Mr. Muhammad Yousaf is according to the rules and consequently he was given seniority on the advice of the Establishment Division.
2. Your earlier petition was also considered and point-to-point reply was given vide NCRD's U.O. No. 5(109)/84-Admn/216/91, dated 9-10-1991 (copy enclosed).
3. In view of this factual position it is regretted that your plea for promotion and seniority cannot be accepted as your representation is not justified. , (Sd.) Mian Tauqeer Aslam, Section Officer (HRD)."
From the above-quoted letter, it is clear that the petition filed by the appellant earlier also was considered and rejected vide U.O. Note dated 9-10-1991. It further goes to prove that the letter dated 28th February, 1993 whereby the appellant was conveyed the decision point-to-point, was sent to him on his posting office, and there is no reason to disbelieve that it was not received by him, particularly when the letter dated 23rd April, 1994 sent on the same address, was received by him and he has annexed its copy on page 42 of the appeal. The letter dated 23-4-1994 where under he was supplied of earlier letter dated 28-2-1993 cannot be treated as a final order, because it was just a communication of the fact that his appeal had already been rejected and reply thereof had already been sent to him and in support of this view, we rely on the decision of the Supreme Court reported in 1981 SCM R 490 (Malik Perwez Akhtar v. Secretary, Ministry of Religious Affairs and Minority Affairs). As such, the appeal is patently time-barred and there are no cogent grounds in the application for condonation of delay to justify condonation of delay for such a long period and it is hereby rejected. Consequently, the appeal being hopelessly barred by limitation is dismissed in limine.