JUSTICE (RETD.) ABDUL RAZZAO A. THAHIM (CHAIRMAN): --Appellant Mr. BA. Tabassum is presently working as Director (B-19) in the Press Information Department under the Ministry of Information and Broadcasting. He has challenged the seniority list of officers of B-19 issued in the year 1993 with the prayer that his original seniority given to him vide seniority list issued on 14-10-1990 be restored as the impugned seniority list is illegal, unlawful and void. He filed departmental appeal on 8-7- 1993 to the Prime Minister of Pakistan, which was not responded to. Now he has come before this Tribunal and filed appeal under section 4 of the Service Tribunals Act, 1973 on 24-10-1993.
2. Briefly, the facts relevant for the disposal of this appeal are that appellant was appointed as Assistant Public Relations Officer with effect from 6-5-1965 which was equivalent at that time to BPS-16. He appeared before the Federal Public Service Commission and was selected and inducted into Information Group vide Notification dated 30-8-1973. In the year 1974, he was promoted to BPS- 18 and was further promoted to BPS-19 on 20-8-1989. A seniority list of officers of Information Group (BPS-19) was issued in 1990 and he was placed at S.No. 5. In the year 1993, another seniority list was issued in which his position was relegated to S.No. 10. He has challenged this position in this appeal.
3. We have heard Dr. G.S. Khan, the learned counsel for the appellant. It is argued that question of seniority of the appellant was finally settled in the year 1990 on merits as he was given all benefits of BPS-19 retrospectively with presumptive seniority. Therefore, the impugned revised seniority list issued after three years is illegal as that seniority list had already been acted upon as the appellant was considered twice for promotion to BPS-20 on the basis of seniority list of 1990. It is argued that since back benefits accrued to the appellant including the fixation of pay were recognised by the competent authority, therefore, he could not be deprived of his seniority after three years. He has referred to PLD 1982 SC 207 and 1992 PLC (CS) 1127.
4. Mr. Hifzur Rehman, Advocate appeared on behalf of Mr. Hafiz SA. Rahman, Standing Counsel for respondents Nos.1 and 2, i.e. The Establishment Division and the Ministry of Information and Broadcasting, alongwith M/s. Zakaullah Jan and Masood Pervaiz, Section Officers. The comments have also been filed by Mr. Masood Pervaiz, Section Officer, Ministry of Information and Broadcasting through Mr. Hafiz SA. Rehman, Standing Counsel for the Government. It is argued that the appellant's promotion to BPS-18 was illegal as he was appointed on the recommendation of the Minister and his case was never referred to the Central Selection Board. As such, his seniority could only be considered from the date of his regular appointment in BPS-18. It is contended that six officers of the Information Group filed appeals against the seniority list issued in the year 1990 and the case was reviewed and finally with the approval of the competent authority in consultation with the Establishment Division, the revised seniority list has been issued in the year 1993. The respondents have also taken legal objection that minutes of the Selection Committee cannot become the subject-matter of this appeal is it involves the question of promotion and the appeal is hit by proviso (b) to Section 4 (1) of the Service Tribunals Act, 1973.
5. We have gone through the record in connection with appointment of appellant and his being regularised by the Federal Public Service Commission in Grade-16 and appointment as Information Officer. These facts have been admitted in the comments filed by the Government. The seniority assigned to the appellant in Grade-19 in the year 1990 at S.No. 5 has also not been denied. It has been stated 'that the case of the appellant for promotion to B-20 was placed and considered by the Central Selection Board-II on 14-10-1990 but promotion was deferred on account of non- completion of NIPA Course by the appellant. It has further been stated in para 6 of the comments that immediately after the appellant was given seniority at S.No. 5 in the seniority list of BPS-19 officers vide Notification dated 14-10-1990, it was challenged by six officers of the Information Group. The next meeting of the Central Selection Board was held on 18-8-1991 and the name of appellant was again considered by the Board but he was superseded to which he made representation to the Prime Minister of Pakistan that his case was not properly presented before the Board.
6. The question of promotion of the appellant to BPS-20 is not before us and there is limited scope to the extent of eligibility, but in this appeal he has only challenged his seniority, therefore, we, refrain from making any reference with-regard to his deferment or-supersession without prejudice to the merits of his promotion, it may be relevant to mention here that the Central Selection Board held on 14-10-1990 and 18-8-1991, as stated by the appellant, promoted some of the junior officers to BPS-20 and their names do not figure in the -impugned seniority list of 1993. Therefore, we can hardly take up this question when the appellant had not challenged their promotions in the years.
1990 and 1991 so that the competent authority could have redressed his grievance at that time. The question of fitness for promotion is not within our jurisdiction under proviso (b) to Section 4 (1) of the Service Tribunals Act, 1973. Therefore, we have to confine to the extent of seniority position in 1993 seniority list, and the appellant has himself requested that his seniority of 1990 be maintained/restored. The main objection of the respondent Government is that appointment or promotion of the appellant to Grade-18 was not in accordance with law as he was promoted on the recommendations of the Minister and, therefore, he cannot be assigned seniority from that date. We are sorry to observe that this point was available before the concerned Ministry or the Establishment Division at the time of promotion of appellant to BPS-19 in the year 1989 but they have not cared to consider this point and reopened this chapter after three years as stated above, on the representations of some officers, but those six officers came in picture when the name of the appellant was placed before Central Selection `Board for promotion to BPS-20 in October, 1990 and in 1991. In paragraph 4 of the comments, it has also been stated that consequent upon the disciplinary proceedings, the appellant was compulsorily retired from service with effect from 25- 10-1983 and on the basis of judgment of this Tribunal he was reinstated in service. Prior to his reinstatement, some junior officers in Grade-18 had been promoted to qPS-19 and, therefore, the appellant was also promoted to BPS-19 and was allowed presumptive seniority in BPS-19 with the benefit of fixation of pay and increments with effect from 19-9-1984 but without arrears and, perhaps, it was the basis on which the appellant was assigned seniority at S.No. 5 in the seniority list of 1990. The six officers on whose representations, as stated, seniority has been revised, challenged his promotion to BPS-19 and earlier orders issued in favour of the appellant whereby he was given presumptive seniority. The appellant, as stated in paragraph 5 of the comments, made representation on 18-1-1990 against provisional seniority list wherein he was given S.No. 16. The representation was examined in the Ministry and consequently he was assigned seniority at S.No.5.
From the comments, it appears that seniority list of 1990 was reviewed and one of the basis for revising that list is that the case of the appellant was not placed before the Review Board constituted for determination and regularisation of appointments made between the period 1-1- 1972 to 5-7-1977 and the respondent-Ministry has based this argument after lapse of ten years when the seniority list of 1990 took effect and the name of the appellant, not once but twice was considered for promotion to BPS-20 in 1990 and 1991, but on one or the other reason, he could not be promoted. Had he been recommended in 1990, the appellant could have definitely been promoted to BPS-20 on the basis of the seniority list of 1990. It is clear that this seniority was being acted upon upto 1991 and was in picture upto 1993 and hence this will also be a point for consideration if those six officers whose representations were considered were within time or their representations were kept in cold storage for 2-3 years. We have perused all the documents furnished by the Ministry of Information and Broadcasting but we are sorry to say that copies of those representations of the six officers have not been placed on record nor there is any order of the competent authority. The order of promotion of the appellant to BPS-18 has not been withdrawn as yet. He was promoted to BPS-18 on 8-8-1974 and that order had never been challenged during last 20 years. He was promoted to BPS-19 on the basis of that seniority.
Irrespective of facts as stated above by which case of appellant is also covered by merits and under provision of locus poenitentiae, once the action is acted upon cannot be withdrawn, for which we refer to PLD 1969 SC 407.
7. For the reasons stated above, the appeal is allowed and seniority of the appellant is restored as given in 1990 seniority list.
8. Before parting with this judgment, we have observed that in most of the appeals which according to law are preferred to the Prime' Minister of Pakistan are not decided within time and this Tribunal feels difficulty in deciding appeals without appellate orders. We, therefore, suggest the Establishment Division to issue instructions to all the Ministries that efforts be made to get departmental appeals decided as early as possible so that the Tribunal may be in a position to consider view-point of the Appellate Authority.