1. SARDAR SAID MUHAMMAD KHAN, C.J.--- This appeal has been directed against the judgment of the Federal Service Tribunal, Islamabad, dated 28-9-1992, whereby the appeal filed by the appellant, herein, was dismissed.
2. The brief facts of the case are that the matter of, seniority of the appellant and respondent No.3 was previously determined by the competent authorities but the grouse of the appellant is that the Service Tribunal decided a case entitled "Shafique-ur-Rehman v. Abdul Rehman Mankno and others in which an Inspector income-tax was held to be senior to that of Inspector Excise and Taxation. The decision of the Service Tribunal on the point was also affirmed by the Supreme Court of Azad Jammu and Kashmir in appeal entitled Abdul Rehman Mankno v. Shafique-ur-Rehman and others Civil Appeal No.21 of 1990, decided on 8-8-1992. According to the appellant after the decisions of the Service Tribunal and the Supreme Court in the aforesaid case, the matter of the seniority of the appellant and the respondent No.3 should have been determined afresh in BPS 16, 17 and 18 and thereafter the appellant and respondent No.3 to BPS 19 should have been reconsidered in light of the seniority so determined. The appellant also prayed that he should be held entitled to all benefits accruing to him as a result of refutation of his seniority from the dates of his retrospective promotions to the higher grades, i.e. BPS 17 and 18. The Service Tribunal dismissed the appeal holding the same as time-barred and on the ground that the decision in Mankno 's case did not legally justify to reopen the matter between the present contestants and for various other reasons recorded in the impugned judgment. Before filing appeal to the Service Tribunal, the appellant had preferred a representation/appeal to the Chairman, Azad Jammu and Kashmir Council against the order of promotion of respondent No.3, dated 14-4-1991 to BPS-19 on 20-6-1991 which was treated as appeal and was rejected by the concerned authority. The grounds enumerated in the said representation/appeal were more or less identical to those raised in the memorandums of appeals filed in the Service Tribunal and in this Court. However, at the time of arguments in the appeal the learned counsel for the appellant submitted that he would only challenge the promotion order of respondent No.3 to BPS-19 on the ground that appellant was not considered by the concerned Selection Board despite the fact that he was eligible to promotion to BPS-19. The learned counsel for the appellant abandoned all other grounds which he had raised in the representation/appeal, in the memorandum of appeal filed in the Service Tribunal and in the memorandum of appeal filed in this Court. As has already been pointed out previously his case was that the matter of his seniority should be reopened in view of a dictum given in Mankno' s case and after determining inter se seniority of the parties, the question of their promotion should be reconsidered. In other words his grievance regarding the promotion of respondent No.3 to BPS 19 was based on the ground of his alleged seniority and not on the ground that he was not considered by the Selection Board for promotion despite the fact that he possessed the requisite qualifications and was thus eligible to be considered.
3. We have heard the learned counsel for the parties. The preliminary objections were raised by the learned counsel for the respondent to the effect that the appeal filed by the appellant before the Service Tribunal; and that the representation/appeal before the appellate authority were time- barred and thus the appeal before this Court entailed dismissal on the ground of being incompetent. According to the learned counsel for the respondent the representation/appeal was dismissed by the authority concerned on 24-9-1991 whereas the appeal before the Tribunal was filed on 27-10-1991, i.e. Beyond the period of 30 days and thus was time-barred by 4 days.
4. In reply it was contended by the learned counsel for the appellant that the result of the appeal/representation was communicated to the appellant on 1-10-1991 and thus the period of limitation of 30 days would be reckoned from the date of communication of the decision of the appeal and not from the date The perusal of the memorandum of appeal shows that it has Service Tribunal that the result of the representation/appeal was communicated to the appellant on 1-10- 1991. This averment m the memorandum of appeal was not denied specifically in the written statement filed by respondents Nos. l and 3. There is denial regarding other facts but not so far as the fact of the communication of the date of the order is concerned. In view of section 4(1) of the Service Tribunal Act the period of 30 days is to be reckoned from the date of communication of the order and not from the date when the order was made; thus the appeal before the Service Tribunal was filed within the period of limitation. Consequently, the preliminary objection so far as the same relates that the appeal filed before the Service, Tribunal was time-barred is not tenable and is hereby repelled.
5. So far as the objection that the representation/appeal filed to the Chairman of the Council was time-barred is concerned, it may be observed that the order of promotion of the respondent No3 was passed on 14-4-1991 against which the representation/appeal was preferred on 20-6-1991, to the Chairman Azad Jammu and Kashmir Council, i.e., after 66 days whereas the period of limitation for filing the appeal under Rule 5(4) of the Appeal Rules, 1977 is 30 days, reckoned from the date of communication of the order. Obviously, the appeal/representation filed by the appellant before the Chairman of the Council was hopelessly time-barred for which there is neither any explanation nor therewas any application for the condonation of delay. It as settled law that if an aggrieved civil servant seeks departmental remedy after the expiry of the period of limitation and delay is not condoned, it would be deemed that he has not exhausted the departmental remedy at all and an appeal to the Service Tribunal would be incompetent under section 4 of the Service Tribunals Ad. A reference may be made to cases reported as S.S. Qureshi and 15 others v. The Secretary, Ministry of Foreign Affairs and 5 others (1985 SCM R 1953) and Syed Bashir Hussain Shah v. Inspector-General of Police and others (1992 SCMR 290). Thus the appeal before the Service Tribunal filed by the appellant, herein, was incompetent and consequently the appeal filed to this Court entails dismissal on this sole ground. It was also contended by the learned counsel for the respondent that in the instant case the impugned order of promotion was passed by the Secretary of the Council and the appeal was competent to the-'next higher authority' under the relevant rules; which would be the Minister concerned and not the Chairman of the Council. The learned counsel maintained that the representation/appeal to the Chairman who was not the appellate authority would be deemed to have made not at all. It may be stated that in the instant case it is not necessary to decide as to which was the next higher authority within the meanings of definition of expression appellate authority defined under section 2(a) of the Civil Servants Appeal Rules 1977, i.e., Chairman of the Council or the Minister concerned, because the appeal as stated earlier was time- barred and would not help the case of the appellant in any way. The point is left for decision in some other case in which it is necessary to decide the same. As has already been pointed out the appellant has only pressed the point that the appellant was not considered by the Selection Board while recommending the promotion of respondent No.3 to BPS 19 and all other grounds raised in the Service Tribunal were abandoned. This point was never agitated before any of the forums below. The learned counsel contended that this being a law point can be raised at any stage. If a question of law pertains to a point covered by the facts pleaded by a party that may, of course, be raised with the permission of the Court but if a law point is alient to the stand of a party and is tantamount to set up altogether a new case, it cannot be allowed to be raised for the first time in this Court. Because it would be a question of law pertaining to the case not set up by the parties but would tantamount to set up a new case. It would be expedient to reproduce the relevant extract from the memorandum of appeal filed by the appellant in the Service Tribunal and the memorandum of appeal filed in this Court to elucidate the point as to what was the case of the appellant as originally set up. Extract from the memorandum of appeal to the Federal Service Tribunal:-- "It is therefore, prayed that in the light of the judgments of Federal Service Tribunal and the Supreme Court of Azad Jammu and Kashmir (Annx. I and J) and all other relevant facts, the promotion of respondent No.3 may be declared not to have been effected according to law and was consequently illegal, void, without jurisdiction having no legal effect whatsoever.
6. It is further prayed that the benefit of the two judgments be granted to the appellant and the appellant be declared as senior to respondent No.3' in all steps of promotion from the initial appointment of Inspector upward. All back benefits be also awarded.
7. It is also prayed that in view of so declared seniority of the appellant, the case of promotion to the post of Deputy Director Survey, Vigilance, Audit and Inspection be reconsidered according to the latest exposition of law and appropriate orders passed."
8. Extract from the memorandum of appeal in this Court:-- "It is, therefore, most respectfully prayed that leave to appeal against the impugned judgment' and order of the learned Service Tribunal known as Tribunal for AJK Council dated 28-9-1992, may kindly be granted and after granting the same, it may be treated as a regular appeal and by accepting the appeal, the impugned judgment and order under appeal may kindly be set aside with costs and the petitioner may be declared as senior to respondent No.3 in all steps of promotion from the initial appointment of Inspector and upwards. All back benefits may also be awarded. Any other appropriate relief which this I Honourable Court deems fit may also be granted."
9. It is amply clear from the above extracts read in the context of the memorandum of appeals as to what was the case of the appellant before the Service Tribunal and in this Court before addressing the arguments in the present appeal. It has never been the case of the appellant before addressing the arguments in this Court that the impugned order of promotion of respondent No.3 was violative of law because at the relevant time the appellant was eligible to be considered for promotion to BPS 19 but he was not considered, rather his case has been that first he should be declared senior to respondent No. 3 and thereafter the matter regarding the promotion of the parties should be considered. The appellant could not be allowed to set up altogether a new case at this stage. The learned counsel for the appellant Raja Muhammad Hanif Khan, has argued that at least the names of 3 or 4 persons, if not all, eligible for promotion should have been sent to the Selection Board for consideration. He has contended that this Court has expressed the view in some cases that a panel of at least 3 or 4 Officers eligible for promotion should be sent to the Selection Board or the Committee, as the case may be.
10. In reply the learned counsel for the respondent, Malik Muhammad Aslam Khan, Advocate, has contended that authorities of this Court were given under Civil Servants Act, 1976 and rules framed thereunder where the question as to the number of officers who were to be included in the panel was not regulated by the rules or instructions. He has contended that in the instant case the matter is governed by Civil Servants Act, 1973, the rules framed thereunder and the instructions issued by the competent authorities in that regard. The learned counsel has referred to `Guidelines for Departmental Promotion Committees/Central Selection Boards'. Under instruction 1 of Part II of the said instructions, the posts carrying basic Pay scale 18 or below are non-- selection posts, whereas under instruction 1 of the Part III of the instructions it has been specifically mentioned that posts carrying basic pay scale 19 or higher are selection posts. Under instructions 4 of Part III of the instructions, the posts carrying basic pay scales 19 are generally supervisory posts; under instruction 2(a) of Part III of the said instructions for promotion to a supervisory post a minimum number of two officers for every vacancy should be sent to the Selection Board. In the instant case when the promotion of respondent No.3 was considered two Officers were sent out of which respondent No.3 was selected. Thus, the learned counsel for the respondent contended that in view of the fact that minimum number of eligible candidates was sent to Selection Board as required by the relevant instructions, it cannot be said that any violation of the rules or instructions was committed or that the appellant should have also been included in the panel which was to be considered for promotion to BPS 19. The learned counsel has also referred to instructions Nos.5 and 6 of Part III in support of his contention that only 3 Officers for each vacancy are to be sent if the promotion is to the basic pay scales 20 or 21. We have considered the arguments at bar and are of the opinion that in view of the guidelines contained in the aforesaid instructions, it cannot be said that it was essential that a panel of more than two officers should have been sent to the Selection Board for filling in the vacancy against which the promotion of respondent No.3 was ordered. It may be observed that the guidelines have the force of rules as was held in case reported as Khan Faizullah Khan v. Government of Pakistan through the Establishment Secretary, Cabinet Secretariat and another (PLD 1974 SC 291). However, no violation of the same has been shown to have been committed. Consequently the authorities on the point given under the provisions of Civil Servants Ad, 1976 and the rules framed thereunder are not relevant to the instant case which is governed by Civil Servants Act, 1973, rules framed thereunder and the instructions issued as guidelines for carrying out the intention of the law giver.
11. In the light of what has been stated above the appeal is dismissed as being incompetent and having no force even on merits. No order is made as to the costs so far as the appeal in this Court is concerned.