JUSTICE ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---The facts of this appeal are that the appellant Mr. Haji Muhammad joined the Income Tax Group on 21-7-1975 after qualifying the FPSC Competitive Examination held in 1973, as Assistant Income Tax Officer (B-16). He was promoted as Income Tax Officer (B-11) vide notification dated 22-4-1991. His case is that according to para 1(i) of Establishment Division Office Memorandum No. 15/38/52-SE-II, dated 29-1-1954, reproduced in ESTACODE (1983 edition) as S.No. 195 at page 181, promotions against the departmental quota should be made first and the posts reserved for direct recruitment should be filled later. He has stated that there is violation of these instruction and the appellant was entitled to be promoted from 1986 against the quota of promotees, which has not been done and some other persons were directly appointed against the quota of the promotees. Therefore, he has prayed that respondents 1, 2 and 3 be directed to implement the policy relating to reservation of quota for promotees and ante-date his promotion and seniority as Income Tax Officer (B-17) to an appropriate date in 1986.
Along Division (Justice Abdul Razzaq A. Thahim, Chairman) with the memo of appeal, the appellant has also filed application for condonation of delay.
2. We have heard Mr. M.S. Siddiqi, the learned counsel for the appellant at length. He submitted that the appellant was pursuing his remedy with the hope that he will get his due promotion from 1986, failing which he filed departmental appeal and in view of the reported case in PLD 1992 SC 825 this is a continuing cause and, therefore, the question of limitation does not arise. With regard to merits, it is argued that the appellant was due to be promoted against the quota of promotees in the year 1986 but the department ignored him and against the posts reserved for departmental candidates, direct recruitment was made and he did not file any representation at that time because he had an apprehension that due to filing of appeal, his promotion prospects might be marred.
3. Mr. Sheikh kiazul Haq, the learned standing counsel for the respondents Government has taken preliminary objection that the appeal is time-barred. He argued that since 1986, the appellant has never moved the departmental authorities for consideration of his promotion against the quota of promotees. Therefore, his departmental appeal after five years is hopelessly time-barred. He has also argued that even after the promotion of the appellant with effect from 22-4-1991 vide notification dated 22-4-1991, he has not filed any departmental appeal within the prescribed period of thirty days but made a representation on 11-1-1992 on this account also and as such the appeal is barred by limitation.
4. On merits, Mr. Sheikh Riazul Haq submitted that there has been no violation of the Government policy with regard to observance of quota. He invited our attention to para. 4 of the comments and submitted that the Department had-rather been liberal in offering quota to promotees in excess of the one fixed for them i.e. 25%. There is thus no justification to seek promotion on the basis of the quota which had already been exceeded.
5. First of all, we come to the point of limitation. The conten4ion of the appellant is that he had a right to be promoted in the year 1986 against the quota of promotees but he did not make any representation/appeal or placed his case before the department for consideration that the rights of the promotees have been jeopardised. Mr. M.S. Siddiqi, the learned counsel for the appellant, on our query, submitted that during the intervening period 32 persons were promoted from BPS-16 to BPS-17, but in spite of all that the appellant did not agitate his grievance departmentally by making any representation or appeal. On 22-4-1991, he got promotion, and for ante-dation of his promotion from 1986, he filed a belated, departmental appeal dated 11-1-1992, and it clearly indicates that this appeal was filed beyond the period of thirty days. For the purpose of condonation of delay, the appellant has filed an application and is reproduced below in extenso:-- "This application is being submitted as a measure of abundant caution in case it is held that for technical reasons there has been some delay in the submission of the appeal.
The cause of action in this case has arisen out of an act or omission on the part of the official respondents 1-3 of non-implementation of the selected Government policy reserving 25% posts for promotees at all times in the ITO cadre. The injury inflicted was continuous which gave fresh cause of action every time and the petitioner was ignored and direct inductee was recruited and after the petitioner's promotion, to continue to withhold ante-dating of his promotion and seniority while continuing to give seniority and promotions to his (real) juniors in the B-17 cadre.
It was also a cause where a whole cadre like a ITO's was involved and they like the petitioner were all-like the petitioner -- were being continuously denied their vested rights to promotion and seniority in B-17, sanctioned by law.
All the affected AITO's as well as the petitioner were continuing to be agitated over continuous loss of our vested rights and were pressing the official respondents orally, informally and other ways.
Finally, the petitioner filed a formal departmental appeal and receiving no reply in 90 days, have now approached the learned Tribunal within 120 days, prescribed by law.
It is, therefore, prayed that the delay if any may graciously be condoned and the case dealt with on merits."
In the application for condonation of delay, the appellant has not said a single word why he did not file departmental appeal within thirty days from the date he was promoted, to get ante-dated promotion, and there is no request even for that. He was promoted vide notification dated 22-4- 1991 and filed departmental appeal dated 11-1-1992 which was beyond the period of 30 days as provided by law. The case relied by. The learned counsel for the appellant relates to monetary benefits but not for the benefit of seniority and promotion, which both are not vested rights. As such, that case is not applicable to the facts of the present case. The appellant for the first time made a departmental appeal on 11-1-1992 and that was badly time-barred, which remained un responded. In such circumstances, the Supreme Court in the case of Chairman, PIAC v. Nasim Malik, reported in PLD 1990 SC 951, has held that if a departmental appeal is time-barred and there is no final rejection order, then appeal filed to the Tribunal shall itself be barred by time and will not be competent. Therefore, this appeal is barred by limitation and the application I A for condonation of delay is rejected.
6. Reverting to the merits of the case, the contention of the learned counsel for the appellant is that quota fixed for the promotees is not being maintained and the respondent department may be directed to implement the policy laid down for that purpose. In this respect, we would like to reproduce paragraphs 3 and 4 of the objections filed by the respondent department as under:-- .
"3. No instructions about promotions were ignored. AITOs are being promoted according to their share of 25% posts reserved for them. It is true that no promotion was made during the years 1985, 86 and 87 as there was no post available in the promotion quota. As a matter of fact they are working in excess of their quota, as would appear from the figures shown in Annexure R-I. The AITOs were promoted when vacancies were available.
4. The figures worked out for direct recruited/ promote officers have been taken from the Gradation List by the appellant which is not correct. The correct position of officers recruited directly/promoted during the period 1972 to 1991. Is shown as below: YEARDIRECT PROMOTEESTOTAL25 % QUOTA 197216 16 4 197322 24 46 12 1974 197520 9 29 7 197620 20 5 1977 10 10 3 197840(17+23)6 46 11 197925 6 31 8 198036 15 51 13 198120 18 38 10 198219 9 28 7 198324 24 6 198425 10 35 7 198522 22 6 198613 13 3 198711 11 3 198813 18 31 8 198926 26 7 199014 10 24 6 199112 22 34 9 388 157 535135 --Keeping in view the above position of direct/promotee ITOs, the appellant's claim that he would have been promoted in 1986, is not based on facts."
From the above position, the question of observance of quota for the direct recruits and the promotees has become clear and there is no violation and the appellant has not filed any rejoinder so as his view-point could have been considered, but the appellant submitted that whatever he has stated in the memo of appeal is correct, but the position is contrary to his stand and we have no reason to disbelieve the statement of department, when all facts and figures are given.
7. For the forgoing reasons, the appeal fails on merits as well as on the point of limitation and is accordingly dismissed.