S.M. ISHAQ (MEMBER).---The appellant initially joined Islamabad police as A.S.I. On 28-3-1983 and was subsequently promoted to officiate as Sub-Inspector with effect from 10-4-1988. He was, however, enlisted in the "E" list on 21-7-1986. Respondent No.2, Zardad Khan, on the other hand, was promoted as A.S.I. On 4-5-1983 and was entered into "E" list on 6-2-1988. The appellant's grievance is that while he is senior to respondent No.2, the latter was confirmed as S.I. Out of turn in clear violation of rules. He filed a departmental appeal which was rejected and hence the present appeal under section 4 of the Service Tribunals Act, 1973.
2. The appellant's main argument is that the Inspector-General of Police, Islamabad, was not justified in directing out of turn confirmation of Zardad Khan, respondent No.2, merely on the ground that he had successfully passed Upper School Course. It was maintained that if the basis for out of turn confirmation was the Upper School Course then there were a number of senior incumbents awaiting confirmation either with the same or higher qualifications and this fact has also been admitted by the departmental authority while disposing of the appellant's departmental appeal. In these circumstances, it was submitted, confirmation ought to have been made in order of seniority. It was contended that the appellant is not only senior to Zardad Khan, respondent No.2, but has also acquired Upper School Course Certificate and thus there was no justification for depriving him from confirmation and allowing it to Zardad Khan in preference to the appellant.
3. We have heard the parties and have gone through the record carefully. No doubt it is the exclusive discretion of the competent authority to confirm a civil servant but that discretion has to be exercised fairly. However, statutory provisions regarding confirmation in para. (f) of serial No.116 at page 182 of 1989 Estacode inter alia lay down as under:-- "(f)Confirmation should be made strictly in order of seniority, i.e. Junior persons should not be confirmed in preference to their seniors if they are' also eligible for confirmation:'
4. It is manifestly clear from the above provision that a junior person cannot be confirmed in preference to senior if he is eligible for confirmation. In the instant case, the learned counsel for the respondent-department and respondent No.2 himself have not been able to prove that the appellant was junior to Zardad Khan, respondent No.2, nor has it been established by them that he was ineligible for confirmation. Moreover, it is not the case of the respondents that the appellant was ignored due to disciplinary proceedings pending against him although in such circumstances, too, a vacancy has to be earmarked for the senior. We have seen the seniority list and it appears therefrom that the appellant is senior to respondent No.2. We are also clear in our mind that it is the seniority alone which gives a right or entitlement to a senior civil servant over the junior for confirmation and not the higher education or any specialized training in any field. In this view of the matter, we set aside the impugned order of confirmation regarding respondent No.2 and direct the respondent-department to consider the appellant for confirmation without disturbing his seniority, in preference to respondent No.2, provided the former fulfils all the requisite conditions.
5. An objection on behalf of the respondents was raised that the appeal is time-barred as the impugned order of confirmation was passed on 30-6-1991 and the appellant filed the departmental appeal on 2-2-1992. We have noticed that the departmental appeal was disposed of by the Inspector-General of 'Police on 7-7-1993 and the copy of the order was received by the appellant on 17-7-1993. Thereafter, he filed the present appeal before this Tribunal on 7-8-1993. It appears from the record that although the appellant had filed the departmental appeal beyond the period of limitation yet the appellate authority did not dispose of his appeal on the question of limitation but on merit. Therefore, relying on the judgment of the Honourable Supreme Court in the case reported as Muhammad Yousaf v. Member, Board of Revenue and 6 others 1970 SCMR 170 wherein their Lordships had observed that if an appeal is not dismissed as time-barred, it would be presumed that the delay has been condoned, we think that the respondents' objection is not valid and is accordingly overruled. Reliance is also placed on the case reported as Secretary, Excise and Taxation Department v. S. Safdar Hussain 1986 SCM R 1213.
6. In the result the appeal succeeds as indicated above with no order as to costs: