' SALEEM AKHTAR, J.---The appellant with the leave of the Court, has challenged the judgment of the Federal Service Tribunal, by which his appeal was dismissed.
2. The appellant on the recommendation of the Federal Public Service Commission was appointed in the Pakistan Postal Service on 15-2-1965. He was promoted to BPS-18 in the year 1969 while on 3- 8-1973, he was promoted in BPS-19. While serving in BPS-19, he was inducted into the Secretariat Group as Deputy Secretary (BPS-19) with effect from 23-2-1977. In September 1981, he was considered for promotion as Joint Secretary (BPS-20) by the Central Selection Board-II and was approved for promotion. It, however, transpired that the entire recommendation of the said Selection Board was returned for reconsideration. After three months, his case was reconsidered by the Central Selection Board-II and his case for promotion was deferred for a couple of years.
Thereafter it seems that meetings of the Central Selection Board were held on various occasions namely; 15-12-1982, 6-3-1984, 17-3-1985, 21-9-1986, 14-9-1987 and 13-6-1988, but it did not clear him for promotion and he was superseded by several persons. Finally on 12-4-1989, his case was cleared for promotion by the Selection Board and he was promoted on 1-4-1990. After his promotion, a seniority list of Secretariat Group (BPS-20) as corrected up to 1-4-1990, was issued upon which he submitted a departmental appeal to the Prime Minister on 7-2-1991, claiming seniority from the date when he was first cleared for promotion on 28th September 1981. As no reply seems to have been received, he filed appeal on 30th May 1991 for obtaining seniority, in BPS-20 as aforestated and for considering his promotion from that date with all consequential benefits. The respondents contested ,the appeal pleading that the same was barred by time. It was further pleaded that the recommendation made in September, 1981 for promotion was not approved and the case was referred back to the Central Selection Board-II. On consideration by the Board, the appellant was repeatedly superseded till 1988 without any objection from him and, therefore, his promotion could not be ante-dated. The Tribunal held that the appeal was barred by time and dismissed it on merits as well.
3. Leave was granted to consider the following questions:-- "Whether the petitioner was discriminated and whether be not after having been approved for promotion to BPS-20 by the Central Selection Board in its meeting dated 28-9-1981 and the Competent Authority (the President) having not disagreed with that recommendation, he was entitled to be promoted with effect from the date on which other Officers approved for promotion in the said meeting dated 28-9-1981 were promoted."
4. The learned counsel for the appellant contended that in the first meeting on 29-8-1981, the case of the appellant was approved for promotion which was returned back by the Establishment Secretary, who had no authority to do so as such action could be taken only by the competent authority. In this regard, the learned counsel has referred to copy of summary to the President which was, for the first time, shown during hearing of the appeal before the Tribunal. The learned counsel contended that in view of paragraph 2 in S. No, 189 of Esta Code 1989 at page 279, the Establishment Secretary was not competent to return back the recommendation of the Selection Board for reconsideration. It could be done only by the Prime Minister or the Minister concerned and at the material time in 1981, by the President. The relevant paragraphs of the Esta Code read as follows:- "Sl. No, 189: Convention regarding acceptance of recommendations of the Selection Board.--
(1) The Administrative Enquiry Committee reviewed the working of the Selection Board and in their Report made the following recommendations:-
(a) that both the protection to Ministers and in the interests of efficient working, the rules about the Selection Board be closely adhered to;
(b) that there should be a convention whereby the advice of the Selection Board should be accepted quickly and automatically except in wholly exceptional cases.
(2) Government considered these recommendations and their orders are as follows:-
(a) Accepted;
(b) Government have decided that there should be a Convention whereby the advice of the Selection Board should be accepted quickly save in exceptional cases; and that if the Prime Minister or the Minister concerned disagrees with the view of the Selection Board, the case should be returned to the Board for further consideration, and a decision taken by the Prime Minister only after the further views of the Board have been placed before him.
(3) In dealing with Selection Board cases, these orders of Government must be strictly followed."
5. From the aforestated paragraphs, it is clear that the convention from the year 1954 had been to accept the advice of the Selection Board quickly except in exceptional cases. The advice could be returned to the Board for further consideration only in case the Prime Minister or Minister concerned disagreed with the views of the Selection Board. The Secretary, Establishment in spite of disagreeing with the advice of the Selection has no power to return the same for reconsideration.
The question, therefore, arises whether in such circumstances the appellant can claim seniority from 28-9-1981 when Selection Board recommended him for promotion but the same was not accepted in breach of convention. The facts as stated above, clearly show that after the recommendation of September 1981 was returned, appellant's case was reconsidered many times during the years 1983 to 1988 and on all occasions it was rejected and persons junior to him were promoted superseding him. The appellant remained quiet till 1990 and agitated after he was promoted on the basis of recommendation made by the Board on 12-4-1989. The delay in making claim is fatal to the appellant's case. The learned counsel for the appellant contended that the appellant was not aware of what had been happening as no list of the persons considered for promotion was circulated nor any information was supplied. This seems to be a naive argument.
Every civil servant is aware of the promotion and supersession. It may be possible that the appellant was not aware that the Secretary, Establishment had returned the recommendation and advice of the Selection Board for reconsideration but that should not have been the end of the matter as other officers had been promoted and it ought to have enquired as to how appellant's name was not considered or rejected and superseded. He kept quiet allowing junior officers to supersede him for more than five years without any objection or challenge. One is unable to comprehend that in soch a situation the appellant was completely unaware of all the happenings.
The delay in making objections or representations against supersession for a long period always fatal to the case as such delayed challenge if accepted may disturb the structure of the service which has remained for many years without any objection of any claimant or aggrieved person.
We, therefore, are unable to accept the contention of the learned counsel that in the facts and circumstances of the case, the appellant may be given seniority with effect from 28-9-1982.
6. We may point out that the action of the Secretary, Establishment was completely against the convention and the practice followed fora long time. If challenge would have been made immediately or within reasonable time after such action had been taken, possibly the appellant could have been on a strong ground but now it suffers from delay and laches disentitling him to make such a claim.
7. The learned counsel contended that there has been discrimination as certain civil servants whose cases were deferred for reconsideration, promotion was granted with effect from the date when the case was deferred. Such decisions are based on certain facts involved therein. The learned counsel has not been able to place any material with regard to those persons, to whom promotion had been granted with retrospective effect. In the absence of any particulars and complete data of such cases under which the decision was taken, it is difficult to hold that there has been any discrimination only because the promotion was granted from the date it was deferred.
8. The learned counsel has placed on record photo copies of summary for the President submitted on 17-2-1983 regarding promotion of officers of Grade 19 of the Secretariat Group-II to Grade-20. It contains the list of the officers who were recommended for promotion, the list of officers deferred, the list of officers not cleared and also the list of the officers who were recommended for supersession due to indifferent service record. The name of the appellant is in this list. Against appellant's name, there is a remark on the margin which is partly blured and seems to have been made by the President that "This is not fair. Is he otherwise fit". In spite of this remark the President approved this recommendation provisionally subject to detailed discussion on some of the observations which included the aforesaid remark. Thereafter there is a note "Discussed.
Approved". The learned Deputy Attorney-General has produced a copy of this summary which seems to be somewhat different from the copy filed by the appellant. He does not have in possession the original document. This summary relates to the recommendation of the Selection Board held on 15th December and 26th December, 1982. However, one thing seems to be clear that in spite of such remark, the President had approved the recommendation. Nothing turns on this document. We find no merit in this appeal which is dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.