MISBAH ULLAH KHAN (MEMBER)---These are two appeals by Ch. Abdur Rashid, presently serving as Chief Engineer in the Pak PWD. Since their decision depends on common facts, they are proposed to be disposed of by this consolidated order.
2. The dispute is with regard to seniority between the appellant Ch. Abdur Rashid and Muhammad Riaz, who is respondent No.3 in both the appeals.
3. Ch. Abdur Rashid, appellant, joined as Assistant Engineer (Civil) in the Pak PWD on 27-4-1960. Mr. Muhammad Riaz joined as Assistant Engineer (E/M) in the Pak PWD on 16-11-1963 subsequent to the appellant.
4. The appellant was promoted to the post of Executive Engineer (Civil) with effect from 7-6-1970.
Mr. Muhammad Riaz was promoted as Executive Engineer (E/M) earlier with effect from 18-3-1968.
This shows that in the post of Executive Engineer, Mr. Muhammad Riaz was senior to the appellant though in different cadres.
5. Record shows that the name of the appellant as well as Muhammad Riaz, respondent No.3, were sent together for consideration for promotion to the post of Superintending Engineer Pak PWD (B- 19) by letter dated 7-1-1980, which was accompanied by a combined list of officers of the rank of Executive Engineers in accordance with the directions of Establishment Division in its letter dated 14-12-1978. As respondent No.3 had been promoted as Executive Engineer earlier to the appellant, his name was shown at S.No. 15 and that of the appellant at S.No.18, in the working list of officers of the rank of Executive Engineers.
6. In the Central Selection Board's meeting held on 17-3-1980, it was brought to its notice that "Mr. Muhammad Riaz was absent without leave and had already been charge-sheeted." Consequently the name of Muhammad Riaz, respondent No.3, was not considered for promotion that the appellant was cleared for promotion by the Board to the post of Superintending Engineer. The recommendations of the Board were accepted, and in consequence he was appointed Superintending Engineer (B-19) by order dated 25-4-1981.
7. When respondent No.3 came to know of the promotion of the appellant over his head he made a protest. In the meanwhile another meeting of the Central Selection Board was held on 24-1-1982.
However, the proceedings of the Board dated 24-1-1982 were not acted upon for the reasons that certain reports recorded on the performance of the respondent No.3 as well as in respect of some other officers were found to be erratic which were countersigned by the same officers.
Subsequently, after the quashment of the proceedings of 24-1-1982, another meeting of the Board was held on 19-8-1982. Respondent No.3 was cleared for promotion and resultantly an order was passed on 28-3-1984, which reads as follows: -- "In consultation with the Establishment Division it has been decided that since the case of Mr. Muhammad Riaz had been deferred in the Centre Selection Board's earlier meeting held on 17-3- 1980 and he was cleared in the Board's subsequent meeting dated 19-8-1982, he will rank senior to the Superintending Engineers who were junior to him as XENs on 17-3-1980. As such, the name of Mr. Muhammad Riaz will be shown in the seniority list of Superintending Engineers below Mr. Ghulam Hussain H. Memon and above Mr. Abdur Rashid."
8. A seniority list of the officers of Pak PWD including Superintending Engineers (B-19) was circulated on 14-5-1984, wherein Muhammad Riaz, respondent No.3 was shown senior to Abdur Rashid appellant. 1t appears that the appellant came to know of the assignment of seniority to the respondent No.3 over him by order dated 28-3-1984. In consequence he represented on 3-5-1984 saying that the Office Order of 28-3-1984 conveyed to him by the Director-General Pak PWD on 12- 4-1984, adversely affected him and that since he was promoted earlier to Muhammad Riaz respondent No.3, he was entitled to be placed senior to him. In this representation, he also stated that the seniority of all Civil and E/M Officers could not be combined. His representation, however, was not accepted. He also did not challenge the seniority list dated 14-5-1984, presumably because he had challenged the order of ante-dated promotion of Mr. Muhammad Riaz, respondent No.3.
9. For promotion to the post of Chief Engineer, the Central Selection Board in its meeting held on 11- 2-1991 cleared and recommended the appellant for promotion but recommended the supersession of the respondent No.3. Before the order could be passed by the competent authority on the recommendation of the Central Selection Board in this respect, respondent No.3 approached the High Court by way of Writ Petition No.344/1991 claiming therein that the recommendation of the Central Selection Board was not based on true facts and that the said Board had acted on the Confidential Reports mala fide recorded by Mr. A.W.K. Sherwani as Countersigning Officer downgrading his evaluation from `Good' or `Very Good' to `Average' resulting in reduction of his average score. He also gave the facts constituting mala fide.
10. During the pendency of the writ petition the competent authority, namely, the Prime Minister directed as follows:-- "The case of promotion of Abdur Rashid will be finally decided after the representation of Mr. Muhammad Riaz against his supersession is disposed of following the receipt of comments from the Establishment Division."
11. The Establishment Division, after examining the representation and obtaining a fresh advice of the Central Selection Board and the Works Division, submitted a summary to the Prime Minister highlighting the reports of Mr. A.W.K. Sherwani recorded as countersigning officer on the performance of the respondent No.3. Resultantly, the Prime Minister at the same time approved for promotion to BPS-20 on 11-3-1992, the appellant as also Muhammad Riaz, respondent No.3.
12. After the approval of the names of the appellant and respondent No3 for promotion to BPS-20, two notifications were issued on 14-5-1992 promoting the appellant as well as respondent No.3.
13. In Appeal No. 359(R)/1992, the appellant has challenged the order of promotion of respondent No.3, made by notification dated 14-5-1992. The main thrust of attack in this respect is that respondent No.3 had not achieved the required threshold of 70 marks and therefore, he could not be promoted. It was also urged that the recommendation of the Central Selection Board could not be bypassed by the Prime Minister. Still another contention is that the appointment of respondent No.3 was secured by exerting political pressure. The remarks recorded by A.W.K. Sherwani were also pressed into service wherein he as a countersigning officer had not given good reports to respondent No.3.
14. Without going into all these controversies we may point out that question of fitness of a person to be promoted to higher post is outside the jurisdiction of this Tribunal by virtue of proviso (b) to subsection (1) of section 4 of the Service Tribunals Act, 1973, which reads as under: -- "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 promoted to a higher post or grade."
15. The above provision is clear enough to oust our jurisdiction, specially when the Establishment Division, while submitting summary to the Prime Minister, had referred back the case to the Board for reconsideration.
16. For the reasons stating above it is abundantly clear that this Tribunal has no jurisdiction to entertain this appeal and thus it is liable to be dismissed on this ground. Alone,
17. In Appeal No.71(R)/1993, the appellant has challenged the placement of respondent No.3 over his name in the seniority list circulated on 30-11-1988. In this list, the appellant was shown at S.No.14, whereas respondent No.3 was shown at S.No.13. The appellant's case is that he was promoted as Superintending, Engineer prior to the promotion of respondent No.3 and consequently he would rank senior. In this respect, as already pointed out, the Works Division issued, a letter on 28-3-1984, wherein the question of seniority was settled in consultation with the Establishment Division and respondent No.3 was placed senior to the appellant in the cadre of Superintending Engineers. The appellant was informed of this position by letter dated 12-4-1984 by the Director-General, Pak PWD.
Accordingly seniority list was issued on 14-5-1984 placing the appellant at S.No.20 and respondent No.3 at S.No.19. Against the placement of the appellant junior to respondent No.3, the appellant had submitted a representation on 20-9-1984, which representation was never accepted by the competent authority and it became final as the appellant did not approach any forum within time to challenge that seniority list. It is now too late to reopen the case of seniority of the appellant, which has once been decided. Another point raised by the appellant with regard to seniority is that the seniority of Civil and E/M Cadre cannot be combined together. This contention does not find support from any document. On the other hand Appendix VI to the Central Engineering Service Class-I Recruitment Rules, in para. 3 clearly provides that whereas, the cadres of Executive Engineer and Electrical Engineer would be separate at that level, in the administrative cadre i.e. Of Superintending Engineer and Chief Engineer there shall be no separate cadre.
18. For the foregoing reasons this appeal too deserves to be dismissed as being time-barred, incompetent and without merit.
19. The result is that both the appeals are dismissed without any order as to costs.
20. Parties to be informed.
S.M. ISHAO (MEMBER)---21. I have gone through the judgment proposed to be delivered by my learned brother, Mr. Misbahullah Khan, but I regret, I cannot agree to the views expressed by him in Appeal No.71(R) of 1993.
22. It is admitted by the parties that the appellant joined the Pak PWD as Assistant Engineer (Civil) on 27-4-1960 prior to respondent No.3 (Muhammad Riaz) who joined as Assistant Engineer (E&M) on 16-11-1963. Thereafter, respondent No.3 was promoted as Executive Engineer (E&M) on 18-3-1968 while the appellant was promoted as Executive Engineer (Civil) on 7-6-1970. Subsequently when the names of the appellant and Muhammad Riaz, respondent No.3, were sent for promotion to the post of Superintending Engineer, Pak. PWD, the former was promoted while the latter was not considered for promotion.
23. The appellant's case is that the Pak. PWD have two cadres one for the Civil and the other for the E&M Engineers - up to the level of Superintending Engineer and thus the persons appointed on Civil or E&M sides are not interchangeable/intertransferable, as the nature of duties performed by them are entirely different.
24. The Rules of 1951 stood repealed by the Recruitment Rules issued by the Ministry of Housing and Works vide their SRO No.897(1)/84, dated 11-10-1984 read with the Establishment Division's letter dated 3-8-1986. It will be advantageous to reproduce below para. 8 of the Rules whereby 1951 Rules were repealed and the Establishment Division's letter dated 3-8-1986 addressed to the Works Division:-- PARA. 8 OF THE RULES "The Central Engineering Service Class-I Recruitment Rules issued under Works Division No.724/186, dated 13th August, 1951 are hereby repealed."
LETTER DATED 3-8-1986: "Kindly refer to your D.O. Letter No.F.2(2)/84-E-II, dated 17th July, 1986, addressed to Mr. Aizaz Hussain Zuberi, Joint Secretary, Establishment Division, regarding interpretation of the Recruitment Rules for the Engineering" posts in the Pakistan PWD.
(2)The Recruitment Rules notified in October, 1984 have repealed the Central Engineering Class-I Recruitment Rules issued in August, 1951. Therefore, the Rules notified in October, 1984 are applicable to all officers including those who were appointed prior to 1984. As regards inter- transfer of officers from E&M and Civil side, the same is not possible because in accordance with the Recruitment Rules the posts on the two sides are tenable by officers having qualifications in their relevant field, and have their separate lines of promotion as well as prescribed qualifications."
25. It appears from the above that 1951 Rules were repealed and in their place Recruitment Rules of 1984 had come into force and their applicability was made retrospective to "all officers including those who were appointed prior to 1984." However, the net result of para. 3 of 1984 Rules is that a person serving in a specific cadre is eligible for promotion in that cadre only, up to the level of Superintending Engineer. For the sake of facility the extracts from the said para. Are also reproduced below:-- Name and BPS of the post Persons eligible Condition of eligibility Deputy Director- General (BPS-20)/ Chief Engineer Superintending Engineer (Civil) & (Electrical)/ Mechanical (BPS-19)
17 years' service in BPS-17 and above or 12 years' service in BPS-18 in case of direct recruits in BPS-18 or 5 years' service in BPS-19 in case of direct recruits in BPS-19.
Superintending Engineer (Civil) (BPS-19)
Executive Engineer(Civil) (BPS-18)
12 years' service in BPS-17 and above or 7 years service in BPS-18 in case of direct recruits in BPS-18.
Superintending Engineer (E & M) (BPS-19)
Executive Engineer(E/M) (BPS-18) -do-- Executive Engineer (Civil) (BPS-18)
Assistant Executive Engineer (Civil) (BPS-17)
5 years' service in (BPS-17) and person initially appointed to BPS--17 must have passed the prescribed Departmental Examination.
Executive Engineer(E/M) (BPS-18)
Assistant Executive Engineer (E/M) (BPS-17) -do--- Assistant Executive Engineer (Civil) (BPS-16)
Sub-Engineer (Civil) (BPS-11)
3 years' service in(BPS-16)
Assistant Executive Engineer (E/M) (BPS-17)
Sub-Engineer(E/M) (BPS-16) -do-
26. A bare perusal of the above clearly shows that the persons appointed as Assistant Executive Engineer (Civil) and Assistant Executive Engineer (E&M) are not interchangeable/intertransferable as the nature of duties, as already stated, are different from each other. Obviously, a man not qualified in E&M cannot perform the functions of that field even if he may have suitably qualified in Civil Engineering and vice versa. Moreover, it has been mentioned is the Establishment Division's letter dated 3-8-1986, reproduced above, that promotion to "the posts on the two sides up to the level of Superintending Engineer are to be made from officers having qualifications in their relevant field" which means that Assistant Executive Engineer (Civil) can only be promoted as Executive Engineer (Civil) and similarly/only Executive Engineer 1 Civil) can be promoted as Superintending Engineer (Civil). The promotions in E&M side will also take place in similar manner and only those qualified in E&M Engineering will be promoted as Executive Engineer and Superintending Engineer (E&M), and the posts up to the level of Superintending Engineer are not interchangeable. Therefore, the seniority of these two categories of officers should be maintained separately.
27. The appellant has claimed seniority as Superintending Engineer (BPS-19) over Muhammad Riaz, respondent No.3, on the ground that he was selected Superintending Engineer (Civil) by the Central Selection Board earlier to him in the meeting held on 17-3--1980 whereas he (Muhammad Riaz) was cleared by the Board in its subsequent meeting held on 19-8-1982 and as such the former would rank senior to the latter. It was maintained that when the appellant was selected by the Central Selection Board on 17-3-1980 there were eight posts of Superintending Engineers (Civil) and two posts of Superintending Engineers (E&M). The appellant was selected as Superintending Engineer (Civil) against one of these eight said posts on 17-3-1980 while Talat Bashir and Mushtaq Hussain, who were senior to respondent No3, Muhammad Riaz, had been promoted against the two posts of E&M cadre. It was also contended that, in all, there were three posts of Superintending Engineers (E&M) in the Department (one each at Karachi, Islamabad and Headquarters) and against one of these three posts S. Jafar Ali, was already serving while Talat Bashir and Mushtaq Hussain were selected to fill the two slots. Apparently, at the relevant time, it was further contended, there was no other post against which Muhammad Riaz could be absorbed even if he were selected by the Board. However, on the retirement of S. Jafar Ali on 15-5-1982, a vacancy in E&M cadre became available against which Muhammad Riaz could be accommodated in 1982. Even the selection by the Board of Mr. Mushtaq Hussain, senior to respondent No.3, was subject to confirmation by the Law Division to the effect that promotion to the posts of Superintending Engineer were to be made on the basis of a combined seniority List as would be clear from the minutes of the Board, the relevant part of which is reproduced below: "The Works Division informed the Board that only one post of Superintending Engineer in the E&M cadre was available. It was, therefore, decided that Mr. Mushtaq Hussain would be promoted only if the Law Division confirmed that promotions to the posts of Superintending Engineer were to be made on the basis of a combined seniority list."
The question of maintenance of a combined Seniority List shall however, be discussed separately in detail in the paragraphs that follow. Moreover, on a representation made by the respondent No.3 to the Secretary, Establishment Division, the Secretary, Works Division in his D.O. Letter No.M- -4(6)/80-II, dated March, 7, 1982 made the following observations :- "At that time only two vacancies were available on the E&M sides and against those two vacancies Mr. T.BA. Khan and Mushtaq Hussain were recommended by the C.S.B. For promotion. Both the above---named officers were senior to Mr. Riaz."
Now that it is established that the seniority of XEN (B-18) has no relevance in so far as the fixation of seniority in BPS-19 or BPS-20 is concerned, the advice of the Establishment Division, given in para. 7 of the judgment initiated by my learned brother, reproduced below, cannot be considered valid in view of the 1984 rules, applicable retrospectively: -- "7 When respondent No.3 came to know of the promotion of the appellant over his head he made a protest. In the meanwhile another meeting of the Central Selection Board was held on 24-1-1982.
However, the proceedings of the Board dated 24-1-1982 were not acted upon for the reasons that certain reports recorded on the performance of the respondent No.3 as well as in respect of some other officers were found to be erratic which were countersigned by the same officers.
Subsequently, after the quashment of the proceedings of 24-1-1982, another meeting of the Board was held on 19-8-1982. Respondent No.3 was cleared for promotion and resultantly an order was passed on 28-3-1984, which reads as follows: -- `In consultation with the Establishment Division it has been decided that since the case of Mr. Muhammad Riaz had been deferred in the Central Selection Board's earlier meeting held on 17-3- 1980 and he was cleared in the Board's subsequent meeting dated 19-8-1982, he will rank senior to the Superintending Engineers who were junior to him as XENs on 17-3-1980. As such, the name of Mr. Muhammad Riaz will be shown in the seniority list of Superintending Engineers below Mr. Ghulam Hussain H. Memon and above Mr. Abdur Rashid'."
28. A perusal of the record shows that the question of maintaining a combined Seniority List had come up before this Tribunal in the appellant's Appeal No. 108(R)/1980 and during the course of hearing it was denied on behalf of the Ministry of Housing and Works and the Establishment Division that any combined Seniority List of Executive Engineers had been prepared for the purpose of promotion to the next higher grade, namely, that of Superintending Engineer. The Tribunal observed that "in view of this categorical statement made on behalf of the said respondents, we do not consider it necessary to address ourselves to the task of quashing the alleged combined seniority list."
29. In view of the above facts and circumstances I am of the opinion that the appellant, Ch. Abdul Rashid, who had been cleared/selected as Superintending Engineer (Civil) in the Board's earlier meeting held on 17-3-1980 and taken over charge with effect from 25-4-1981 against a clear vacancy, stands senior to respondent No.3, Muhammad Riaz, who even if had been cleared in the same meeting of the Board alongwith the appellant would not have been promoted earlier than 15-5-1982 as a vacancy of Superintending Engineer (E&M) for him had fallen vacant only on 15-5- 1982 on the retirement of one senior Superintending Engineer (E&M) S. Jafar Ali. Resultantly, on the basis of this seniority the appellant becomes senior as Chief Engineer (BPS-20) to respondent No.3, Muhammad Riaz.
30. As regards limitation, I find that the appellant submitted representation on 20-9-1984 but subsequently on i1-10-1984 the relevant rules were amended clarifying that cadres of Civil Engineering and E&M Engineering are separate up to the level of Superintending Engineer (BPS-19).
He felt satisfied with the said Rules. However, when a seniority list was circulated by the Works Division on 30-11-1988 showing respondent No.3 senior to the appellant, he again represented on 26-12-1988 to the Secretary, Works Division, which was responded to on merits on 23-2-1993.
Thereafter, the appellant submitted the present appeal to this Tribunal on 10-3-1993, which is within time as the Honourable Supreme Court in the case reported as 1970 SCM R 170 has held that if an appeal is not dismissed as time-barred it should be presumed that the delay has been condoned.
31. As a result, the appeal deserves acceptance and the question of seniority be settled in the light of discussion made hereinabove.
32. As far as Appeal No.359(R)/92 is concerned, I agree with the conclusion arrived at by my learned brother and, therefore, I need not go into discussion.
ABDUL RAZZAQ A. THAHIM, (CHAIRMAN).---These two Appeals Nos. 359(R)/92 and 71(R)/93 have been filed by Ch. Abdul Rashid separately and were heard by a Bench consisting of Mr. S.M. Ishaq and Mr. Misbah Ullah Khan, Members. In Appeal No. 359(R)/92 there is unanimous verdict of both the learned Members. They have dismissed this appeal whereby promotion of respondent No. 3, Mr. Muhammad Riaz was challenged.
2. In Appeal No.71 (R)/93 it has been prayed that the seniority assigned to respondent No. 3 in the seniority list issued on 30-11-1988 may be set aside and if a combined seniority list is to be maintained for the Superintending Engineers, the appellant should be shown senior to respondent No. 3, having been cleared for promotion in March, 1980 as against Mr. Muhammad Riaz who was cleared in August, 1982. The author of the proposed judgment Mr. Misbah Ullah Khan vide paragraphs 17 and 18 has dismissed this appeal as time-barred. He also dismissed the same on merit as well, while the other learned Member Mr. S.M. Ishaq, in his detailed judgment, has allowed seniority to the appellant and also held that the appeal is within time in view of the Supreme Court decision reported in 1970 SCM R 170 as the departmental appeal whereafter appeal of the appellant was decided recently whereafter appeal was filed within 30 days before us. He also allowed appeal on merits and has given seniority to appellant. Thus, there is difference of opinion between the learned Members as far as Appeal No. 71 (R) /93 is concerned on point of law as well as merits, and it has now come up before me under section 3-A of the Service Tribunals Act, 1973.
3. I have heard the learned counsel for the parties at great length.
4. On the question of limitation, Mr. Fazal Elahi Siddiqi, the learned counsel for the appellant argued that limitation starts from the date of final order passed by the appellate authority and in view of 1970 SCM R 170, since tie departmental appeal was not rejected on the point of limitation, appeal to the Tribunal was within time. He also referred to 1986 SCM R 1213. From the arguments of both the parties, two questions have cropped up for determination-- (1)whether the Tribunal has got jurisdiction to examine the point of limitation if the appeal is not decided by the appellate authority on the point of limitation, and (2)whether the aggrieved civil servant is supposed to wait for bringing a grievance before the Tribunal till a final decision thereon is received by him.
5.On the first point, I refer to 1984 SCM R 1014 wherein it has been held that Tribunal is under obligation to decide all questions of law and fact. I also refer to PLD 1985 SC 153, wherein it has n held:-- "...It follows that where the question of limitation is not a mixed question of law and fact or where limitation is apparent on the face of the record, a waiver by the parties would not relieve the Court itself of its duty under section 3 of the Limitation Act and a waiver by the Court of the question of limitation is -not contemplated. This Court bad in Ahsan Ali v. District Judge PLD 1969 SC 167 clearly laid down that it was the duty of the Court to notice the point of limitation, whether the plea of limitation was raised or not, and that a waiver of the question of limitation is not permissible, even where the period of 'limitation is prescribed by special or a local law."
Reference is also made to the case of Mian Shafiuddin, Deputy Director and 4 others v. Surat Khan Marri, Director, Regional Information Office, Islamabad and 41 others, reported in 1991 SCM R 2216, wherein it has been held: "Prima facie, the argument of the learned counsel appears to be attractive and to some extent also has the support of judgment of this Court in M. Yamin Qureshi v. Islamic Republic of Pakistan PLD 1980 SC 22. It was observed therein that it is within the jurisdiction of the Tribunal and indeed `its obligation' to decide all questions of `law and fact'. It was further held that as a legal proposition Tribunal has 'wide a powers under section 5 of the Act, as it may on appeal confirm, set aside, vary or modify the order appealed against'. A hope/expectation was also expressed in the said judgment that the Service Tribunal presided over generally by a serving or a retired Judge of the High Court "would be able to do full justice to the appellant."
It follows from the above discussions that the Tribunal has got jurisdiction to examine the point of limitation even if it is not taken by the other party.
6. As regards second proposition, the learned counsel for the appellant based his arguments on the decisions of the Supreme Court reported in 1970 SCM R 170 --- 1986 SCM R 1213 --- 1987 SCM R 367 ---1990 SCM R 1356 and PLD 1990 SC 951.
7. The main thrust of the learned counsel for the appellant was that since the appellate authority has rejected the departmental appeal of the appellant on merits and not on the question of limitation, therefore, in view of the Supreme Court decision reported in 1970 SCM R 170, the appeal before the Tribunal is within time and competent. Mr. S.M. Ishaq the learned Member has also followed the above dictum of the Supreme Court. In the case reported in 1970 SCM R 170, it was a matter of consolidation proceedings of Village Bheelo Mahar, District Sialkot and it was not a matter of service appeal. Even otherwise, on the promulgation of the Civil Servants Act, 1973, a special law has been introduced to regulate the terms and conditions of civil servants under which service rules have been framed and necessary provisions for seeking remedy of their grievances including limitation has also been provided and Service Tribunals Act, 1973 has come into force and under Article 212 of the Constitution Service Tribunals have been established for redress of the grievances of the civil servants. Appeals to Tribunals are provided under section 4 of the Service Tribunals Act, 1973 and the provisions thereof read as under:-- "4.Appeals to Tribunals: --(1) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him (or within six months of the establishment of the appropriate Tribunal whichever is later, prefer an appeal to the Tribunal): Provided that -- (a)where an appeal, review or representation to a departmental authority is provided under the Civil Servants Act, 1973, or any rule 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;
(b) xxxx xx (c)xxxx xx Right of appeal or representation to a civil servant has been provided under section 22 of the Civil Servants Act, 1973-and it reads as under: Right of appeal or representation.---(1) Where a right to prefer an appeal or apply for' review in respect of any order relating to the terms and conditions of his service is provided to a civil servant under any rules applicable to him, such appeal or application shall, except as may be otherwise prescribed be made within thirty days of the date of such order.
(2)Where no provision for appeal or review exists under the rules in respect of any order or class of orders, a civil servant aggrieved by any such order may, within thirty days of the communication to him of such order, make a representation against it to the authority next above the authority which made the order: Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade."
Similar provision is contained in sub-rule (4) of Rule 5 of the Civil Servants (Appeal) Rules, 1977 for filing appeals, within thirty days, to the departmental authority. From the above provisions of law, it is incumbent upon an aggrieved civil servant to act within the four corners of the law regulating his terms and conditions of service, to seek redress of his grievance before the departmental authority as also the Service Tribunal. As discussed above, the case reported in 1970 SCM R 170, relied upon by the appellant, has got distinguishable features and is not applicable to the instant case.
8. The second case relied upon by the learned counsel for the appellant is 1986 SCM R 1213 (Secretary to the Government of the Punjab, Excise and Taxation Department v. S. Safdar Hussain).
This case relates to an appointment made in relaxation of all the rules applicable to that post and was not in accordance with Martial Law Instruction 21 and it was an ad hoc appointment. As such, this case is not relevant to the facts of this case. The third case is 1987 SCM R 367 (Muhammad Younis v. Chairman, WAPDA)The Federal Service Tribunal dismissed the appeal of the petitioner on the ground of limitation. On appeal to the Supreme Court their Lordships granted leave to appeal to examine the question whether the Tribunal could on its own take up the bar of limitation when departmental appellate authority had not chosen to base its orders on such ground. However, the learned counsel did not produce any final judgment of the Supreme; Court on this point. I have already dealt with this point in the preceding paragraphs. In the case of Israr Ahmad Khan v.
Government of N.W.F.P. (1990 SCNIR 1386), it has been held that delay if any in filing appeal after rejection of second representation especially when prayer to that effect was duly made before Tribunal at the time of hearing of appeal, discretion having not been exercised by Tribunal in accordance with law in refusing to condone delay, petition for leave to appeal was converted into appeal and allowed and the case was remanded to the Tribunal for decision of appeal afresh on merits. In the case of Chairman, PIAC v. Nasim Malik (PLD1990 SC 951), it was held that if appeal before the competent authority is time-barred, the appeal before the Tribunal was also incompetent on that account. This view is otherwise to the facts of the present case. In the present case, appeal before the appellate authority was within time but it was time-barred before the Tribunal.
9. To determine the question of limitation, I feel it necessary to give brief history of this case. The impugned provisional seniority list was circulated vide letter dated 30th November, 1988 in respect of Pak PWD (Engineering Group) BPS-17 officers and above, by the Works Division. The objections were required to be preferred by 31st December, 1988. This consolidated provisional seniority list relates to Director-General (BPS-21). Deputy Director-General (BPS-20), Chief Engineers (BPS-20)
Planning/North/South/West) and Superintending Engineers (BPS-19). In this list, the name of respondent No. 3 (Mr. Muhammad Riaz) appears at S.No. 13 whereas the name of the appellant is at S.No. 14. The contention of the appellant is that he made representation on 26-12-1988 to the Secretary, Works Division against this seniority list but final decision was not taken in spite of various reminders sent from time to time, and his representation was finally decided on 11-2-1993 as such the appeal is within time after final order. On this score, I also make reference to Appeal No. 359(R)/92 before the Tribunal wherein the appellant claimed promotion and seniority over and above respondent No. 3 (Mr. Muhammad Riaz) against the vacancy available on 11-2-1991 in BPS-
20. It is clear that the appellant was pursuing remedy in the Tribunal against the promotion of respondent No. 3 on the basis of seniority but did not file appeal up to 1992 though seniority of respondent No. 3 stood in his way by that time. His contention is that his appeal was not decided since 1988 therefore, he had to wait for final order, and this contention is to be examined in the light of the case-law pronounced by the Hon'ble Supreme Court.
10. I would like to refer to 1989 SCM R 1271 (Federation of Pakistan v. Muhammad Azim Khan) wherein it has been held as under: "The respondent addressed his representation to the Establishment Secretary and not to the next higher officer, as is required under the law. However, as he had, according to the finding of the Tribunal endorsed it to the President, the next higher authority over the Establishment Secretary, it can be said that there was substantial compliance with the requirement of the law. His filing the representation on 8-9-1979 when the order challenged was of 15-7-1979 can also be explained on the factual ground given by the respondent. As regards the time spent after 8-9-1979 there appears to be no explanation at all. The appeal filed before the Tribunal on 26-1-1980 was barred, being beyond 120 days of 8-9-1979 and in the alternative beyond thirty days of 28-10-1979. The Tribunal had been taking an incorrect view of the law is not a reason or sufficient reason for condonation of delay or even for explaining the delay. Besides, the diversity in the views of the Service Tribunals would clearly appear from the decision given by this Court in the case of Kadir Bux but in the two alternatives present in the appeal there was no divergence of views, in no case the limitation going beyond 120 days after filing of the appeal or representation. The Tribunal has, therefore, taken incorrect view of the law in holding that an appeal filed on 26-1-1980 was within time against the final order, dated 28-10-1979 or after filing the representation on 8-9-1979."
This settles the entire issue that there is no such provision in the Service Tribunals Act, 1973 or the Civil Servants Act, 1973 that an aggrieved civil servant is bound to wait for an indefinite period for obtaining finalorder and in my humble view after waiting 120 days, the original order against which appeal was to be filed is considered as final order for the purpose of appeal before the Tribunal.
The appellant availed the option of filing representation within thirty days in the year 1988 against the seniority list of 1988. He waited till he and respondent No. 3 were both promoted to BPS-20: There is delay of five years on the part of the departmental authority in deciding his appeal for seniority in BPS-19. The respondent Ministry of Works produced a copy of order whereby .The appellant was informed that his appeal was rejected with regard to claim of seniority. In spite of that the appellant did not file appeal before the Tribunal. In the interest of justice, we asked the Secretary, Works Division to furnish the entire record of the representations/appeals filed by the appellant from 1988 onward, so as to examine under what circumstances his appeal was not being decided as it was pointed out that the appellant with mala fide intention arranged to get reply of rejection order. It is regretted to point out that there was no response from the Ministry of Works and the record was not produced before us.
11. I also refer to the case of Fazal Elahi Siddiqi v. Pakistan through Secretary, Establishment Division (PLD 1990 SC 692), wherein Their Lordships considered the point of limitation in detail and made the following observations: "9.A perusal of the above-quoted subsection (1) of section 4 indicates that a civil servant if aggrieved by any final order in respect of any terms and conditions of his service can file an appeal before the Tribunal within 30 days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, whereas the proviso
(a) to above subsection (1) puts embargo on the above right of appeal by providing that before filing any such appeal, the aggrieved civil servant shall file an appeal, review or representation if so provided and shall wait for a period of 90 days from the date of which such appeal, application or representation was preferred. But it does not provide that an aggrieved civil servant should wait till the decision of the authority concerned on his departmental appeal, review or representation. The reason 'for not providing so seems to be to eliminate delay in the finalization of a service matter and also to eliminate the element o1 uncertainty as some departmental authority may take one or two years to decide an appeal, review or representation. We are inclined to hold that the view taken by the Tribunal that a civil servant is to approach the Tribunal against a final order by-which he is aggrieved within 120 days, i.e. 90 days waiting period for receiving decision on appeal, review or representation plus 30 days limitation period of the appeal before the Tribunal. Any other view would be against the spirit of above-quoted section 4 of the Act. The above view is in consonance with the view taken by this Court in the case of Federation of Pakistan v. Muhammad Azim Khan and others, 1989 SCM R 1271 referred to hereinabove relied upon by the appellant. In the present case, the appellant was aggrieved by the final order of his compulsory retirement dated 31-10-1976 whereas the appeal was filed by him on 20-7-1978 i.e. After the expiry of more than 20 months. It is, therefore, evident that the appeal was barred by limitation by more than 1-1/2 years. The view found favour with the Tribunal seems to be in consonance with law."
Mr. Fazal Elahi Siddiqi also filed Civil Review Petition No. 38 of 1990 in Civil Appeal No.17 of 1983 but the same was also dismissed by order dated 10th October, 1993 and as such the law laid down by the Supreme Court on the above proposition has attained finality. As such this question stands resolved, as such an aggrieved person is not supposed to wait for appellate order having no provision in law and cannot be allowed to keep under suspense the other side for year to year. It is also pertinent to mention here that similar view was taken by this Tribunal in Appeal No. 290(R)/1993, decided on 21-2-1993 (Farmanullah v. Superintending Engineer (E), WAPDA, Peshawar), and the Tribunal following the decision of the Supreme Court in the case of Fazal Elahi Siddiqi v.
Pakistan reported in PLD 1990 SC 692, dismissed the appeal on the point of limitation. The appellant filed Civil Petition for Leave to Appeal No. 37 of 1994 in the Supreme Court and by judgment dated 12-3-1994 leave to appeal was refused, and the judgment of the Tribunal was upheld.
12. For the abovementioned reasons and law laid down, I hold that the appeal is time-barred. There is even no application for condonation of delay, as such appeal is liable to be dismissed and I agree with Mr. Misbah Ullah Khan, Members.
13, Reverting to the merits of the case, I would like to reproduce the prayer clause of Appeal No. 359 (R)/92 filed on 23-9-1992 before the Tribunal which has been dismissed by both the Member: "...It is respectfully prayed that this Hon'ble Tribunal may please summon the entire record of the case and set aside the order of promotion of respondent No.3 and direct promotion of the appellant against the vacancy which was available on 11-2-1991. Alternatively if the promotion of respondent No.3 is held to be justified, then he should be assigned a date of promotion later to the date of promotion of the appellant in keeping with the earlier selection of the appellant thus giving him necessary seniority over respondent No. 3."
It is thus clear that the appellant has not only challenged the promotion of respondent No.3 but also sought such relief on the basis of seniority over respondent No. 3. The purposes of quoting this judgment which was unanimous, is that the appellant was fully conscious that he was not yet given seniority over respondent No. 3. This appeal was dismissed. The question before the Tribunal as well as before the appellate authority involved in this appeal pertained to a matter which was settled in the year 1984 and the respondent No.3 was all along considered to be senior to the appellant. This position continued till 28th March, 1984 when the matter was settled by the Works Division vide Office Order No. F.11(273)/65-EII whereby it was decided that since the case of respondent No.3 Mr. Muhammad Riaz has been deferred in the Central Selection Board's earlier meeting held on 17-3-1980 and he was cleared in the Board's subsequent meeting dated 9-8-1982, he will rank senior to the Superintending Engineers who were junior to him as Executive Engineers on 17-3-1980; and that the name of Mr. Muhammad Riaz will be shown in the seniority list of Superintending Engineers below Mr. Ghulam Hussain H. Memon and above Mr. Abdul Rashid (the appellant). The appellant filed representation against' this office order on 3-5-1984 that the matter may be reviewed by the Establishment Division and his seniority be fixed above Mr. Muhammad Riaz. The matter remained undecided and respondent No.3 Mr. Muhammad Riaz continued to be senior to the appellant. The same position was taken in the provisional seniority list issued in the year 1988. The contention of the learned counsel for the appellant is that rules were amended on 11-10-1984 to which he was satisfied to-the extent that seniority of the Civil and E&M Engineers will be maintained separately and he had no grouse and, therefore, he did not pursue his appeal/representation made in 1984. The appellant claims seniority over respondent No.3 on the same facts and circumstances and his argument is that the case for promotion of respondent No.3 was not deferred but he was superseded thereby he is to be considered senior to Mr. Muhammad Riaz, and that seniority of both cadres of Civil and E&M is to be maintained separately in the light of the new Rules framed in 1984. The question of seniority was finally settled and the dates of promotion and deferment and supersession etc. Stood decided in March, 1984 and that position reached to the finality and was not challenged by the appellant. He also did not file appeal before the Tribunal. It is also pertinent to mention here that the appellant earlier also filed Appeal No. 108 (R)/1980 against one of his colleague Mr. Talat Bashir Khan, Executive Engineer (E&M) and his stand was that Civil and Electrical and Mechanical Cadres were separate cadres for which separate seniority lists were to be maintained and the appellant had right for promotion to a post on civil side. The Tribunal vide its judgment dated 26-4-1984 dismissed the appeal and to that extent, the claim for promotion and seniority in different cadres viz. Civil, Electrical and Mechanical, was finallysettled. The same position has also been taken by respondent No.3 and the Works Division that there was a consolidated seniority list of the Engineers of Civil and E&M and there was no separate seniority list on the basis of that criteria the promotions of the appellant and respondent No. 3 were made vide notification dated 14th May, 1992 whereunder they both were promoted to PBS-20. The merits of earlier promotion and seniority during 1984 already stood settled till the notifications dated 14-5-1992 of the appellant and respondent No.3 were issued separately. In Appeal No. 71 (R)/93, seniority is being claimed by the appellant as is evident from the record in BPS-19 as Superintending Engineer because the question of his seniority as such was settled as late as 1984 i.e. Ten years ago. The same facts are again being repeated that his seniority is to be reckoned in view of the amended Rules of 1984 whereunder separate seniority lists are to be maintained and the contention of the learned counsel for the appellant is that due to new situation the appellant did not challenge seniority of respondent No.3 as he was satisfied, cannot be accepted. The rules cannot have retrospective operation and on the other hand the seniority of respondent No.3 continued to be the same, i.e. Over the appellant in the consolidated list of Superintending Engineers, which was not disturbed and the presumption of the appellant is against the record. It was incumbent upon him that in 1984 he should have made representation/appeal that his case has to be covered against the post of Superintending Engineer on civil side and the seniority of E&M Engineers be maintained separately, which he did not till 1988 when again a consolidated provisional seniority list in the same manner was issued. Therefore, on merits, I am of the view that the appellant has no case to succeed.
14. For the reasons recorded above, Appeal No. 71 (R)/93 fails on the point of limitation as well as on merits, and I agree with the findings recorded by Mr. Misbah Ullah Khan, Member, and dismiss the appeal with no order as to costs.
ORDER OF THE TRIBUNAL By virtue of proviso (c) to subsection (2) of section 3-A of the Service Tribunals Act, 1973, the order of the Tribunal shall be in terms of the opinion of the Chairman, and the result is that Appeal No. 71 (R)/93 is dismissed.