' ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---The relevant facts for the disposal of this appeal are that the appellant Mr. Ghulam Muhammad Memon qualified CSS Examination held in 1986 by the Federal Public Service Commission and was placed at S.No, 303 in the overall merit and at S.No, 24 in the merit list of Sindh Rural, he had opted for the following Groups: {{TABLE}}
(1) D.M.G. (6) Railways.
(2) Customs (7) Commerce & Trade.
(3) Income Tax. (8) Accounts.
(4) Police. (9) Information.
(5) Foreign Service. (10) Postal Service. {{TABLE}} ' The appellant was allocated Information Group and he accordingly joined that Group.
Respondent No, 5, Mr. Niaz Ahmed Sheikh had also appeared in the C.S.S. Competitive Examination held in 1986, alongwith appellant, and his overall merit position was at S.No, 344 and in Sindh Rural and was at S.No, 26, i.e, below the appellant. Keeping in view his merit position, Mr. Sheikh was not offered any post. He filed a Constitutional Petition No, 406 of 1991 in the High Court of Sindh at Karachi on the ground that due to re-adjustment, certain posts had become available and he may be considered for adjustment in accordance with the Establishment Division O.M. No, 1/87/IV, dated 4-11-1987. The High Court by judgment dated 10-5-1992 after considering the comments filed by the Federal Public Service Commission and the Establishment Division disposed of writ petition with the direction that the petitioner be considered for adjustment in accordance with Office Memorandum No, 1/87/T.V., dated 4-11-1987 issued by the Establishment Division against the posts left unoccupied by repeaters. Accordingly, the Establishment Division in pursuance to the directions of the Sindh High Court adjusted Mr. Sheikh and was allocated Accounts Group. This action of the Government gave cause of grievance to one Dr. Siraj Mustafa Jokhio, who was at S.No, 23 on merit list of Sindh Rural and was offered Postal Group. He made departmental representation which did not bear fruits and ultimately he filed Service Appeal No, 88(R) of 1994 before this Tribunal. The Tribunal by its judgment dated 19-4-1994 allowed the appeal with direction that he may be reconsidered for allocation to Accounts Group in preference to respondent Niaz Ahmed Sheikh and in compliance of the order of the Tribunal, Dr. Siraj Mustafa was allocated Accounts Group without touching the Group of respondent No,
5. On coming to know of these developments, the appellant made a representation on 5-12-1993 to the Secretary, Establishment Division that since he had better merit in Sindh Rural than respondent No, 5, Mr. Niaz Ahmed Sheikh, he may be allocated Accounts Group in place of Mr. Sheikh, but the same was rejected vide order dated 2-2-1994 that his request could not be acceded to. The appellant filed a review petition to the Prime Minister on 21-7-1994 and in reply he was informed vide Memorandum dated 9-10-1994 that Mr. Siraj Mustafa Jokhio was at higher merit than the appellant, therefore, the said Accounts vacancy could not be offered to the appellant. He then filed this appeal before the Tribunal on 3-11-1994 with the prayer that the respondents be directed to give and restore to the appellant Accounts Group in place of respondent No, 5, with all back benefits of the reallocation.
2. Mr. Sirajul Haq Memon, the learned Advocate appearing for the appellant argued the appeal at length. He made pertinent reference to the objections filed by the FPSC in the High Court of Sindh in Constitutional Petition No, 406 of 1991 filed by Mr. Niaz Ahmed Sheikh, where in paragraph 7, it has been stated that if another reallocation in relaxation of the existing practice was allowed against the three vacancies of Sindh (Rural), even, then the petitioner Niaz Ahmed Sheikh would have not been allocated to any Service Group; and that the vacancy of Accounts Group would have gone to Ghulam Muhammad Memon (Merit No, 303) (present appellant) in place of his seat in Information Group, leaving all the three vacancies in the Information Group. He also relied on the judgment of this Tribunal in the case of Dr. Siraj Mustafa Jokhio (Appeal No, 88(R) of 1994) whereby the appellant therein was allowed reallocation to Accounts Group from the Postal Group and the said judgment has fully been implemented. He vehemently submitted that a person who was not even qualified for adjustment against any of the groups, has been given Accounts Group in spite of the fact that he was lower in merit position than the appellant and the appellant has been deprived of his legitimate right for allocation to Accounts Group in spite of clear admission by the FPSC, and there is clear discrimination in his case. He relied on 1993 SCM R 1124 in support of his submission.
3. Objections have been filed only by the Establishment Division. At the time of regular hearing, Mr. Niaz Ahmed Khan, the learned Standing Counsel for the Government has raised two preliminary objections that the appeal is time-barred and this Tribunal has no jurisdiction to entertain the grievance of the appellant as it is not covered under the terms and conditions of service. On merits, he could not reconcile the position taken by the learned counsel for the appellant and particularly the judgment of this Tribunal in the case of Dr. Siraj Mustafa Jokhio, as no appeal was filed against that judgment before the Supreme Court.
4. The representative of the Establishment Division when put in the circumstances as to whether any exercise was made after the judgment of the High Court of Sindh, he submitted that the FPSC did not find Mr. Niaz Ahmed Sheikh fit for Information Group but it was on the directions of the High Court that the Establishment Division had no option but to accommodate Mr. Niaz Ahmed Sheikh in the Accounts Group. The representative of the FPSC has taken the stand that in case of appellant there was no vacancy in Accounts Group and on merit he was allocated Information Group.
5. Respondent No, 5, Mr. Niaz Ahmed Sheikh neither filed objections nor appeared at the time of regular hearing. He is, therefore, proceeded ex parte.
6. We have considered the submissions of the parties. In the first instance, we would like to dispose of the legal objection of limitation raised by the respondents. The admitted facts are that all the three viz. Dr. Siraj Mustafa Jokhio, the appellant and respondent No, 5, Mr. Niaz Ahmed Sheikh, appeared in the C.S.S. Examination held in 1986 and qualified and their merit positions in Sindh Rural were as follows: {{TABLE}}
1. Dr. Siraj Mustafa Jokhio S.No, 23
2. Mr. Ghulam Muhammad S.No, 24 Memon (the appellant)
3. Mr. Niaz Ahmed Sheikh S.No, 26 {{TABLE}} ' Dr. Siraj Mustafa Jokhio was allocated Postal Group while the appellant Information Group, but respondent No, 5, Mr. Niaz Ahmed Sheikh was not found fit for allocation to any Group. He filed Constitutional Petition No, 406 of 1991 in the High Court of Sindh which was allowed and on the directions of the High Court, he was adjusted and allocated the Accounts Group in spite of his having lower merit. The appellant came to know about this development in November, 1993 and he made a representation on 5-12-1993 to the Secretary, Establishment Division but same was rejected vide Office Memorandum dated 2-2-1994 on the ground that his request was considered but could not be acceded to. In the meantime, Dr. Siraj Mustafa being aggrieved with the allocation of Mr. Niaz Ahmed Sheikh to Accounts Group, filed service appeal before the Tribunal which was allowed and it was directed that Dr. Siraj Mustafa may be reallocated Accounts Group, and the decision of the Tribunal was complied with. The appellant made a review petition on 21-7-1994 to the Prime Minister of Pakistan and in reply the appellant was informed by the Establishment Division vide Office Memorandum dated 9-10-1994 that his request was duly considered in the P.M.
Secretariat and rejected. It thus follows that both the representation and the review petition filed by the appellant were duly considered but rejected on merits and not as time-barred. It is a settled law that once a time-barred representation or appeal is rejected on merits, therefore, no question of limitation would apply in such cases and it shall be presumed that authority has waived limitation and before us the appeal is within time. On this, we rely on 1970 SCM R 170 and Civil Appeal No, 581 of 1992 filed by Muhammad Saleem v. Secretary, Establishment Division, decided on 21-1-1994. Therefore, we repel the argument and objection raised by the department and hold that this appeal is not time-barred.
7. With regard to jurisdiction, it would suffice to say that it has been held by the Supreme Court in so many cases that the Tribunal has got jurisdiction in matters of promotion or to hold a particular post, but to the extent of eligibility of person, for which consideration is a right of an individual relating to terms and conditions. In this case, it is not denied that the appellant at the relevant time was qualified and eligible for allocation to Accounts Group and according to the objections filed by FPSC in the High Court of Sindh in connection with writ petition filed by respondent No, 5, Mr. Niaz Ahmed Sheikh, the appellant could be adjusted against three vacancies in the Accounts Group and this having not been done, the appellant has been deprived of his legitimate right to hold a particular post and it has affected his terms and conditions of service in spite of his having higher merit in the C.S.S. Examination, we are of the view that this Tribunal has jurisdiction in such matters.
Moreover, in identical case of Dr. Siraj Mustafa Jokhio, such objection was not taken by the Government and the judgment of this Tribunal passed in his case has fully been implemented and according to the directions of the Tribunal, he has been reallocated Accounts Group. Even the Government of Pakistan did not challenge that judgment on point of jurisdiction, and same is the position in other appeals.
8. Now we come to merits. Upshot of the above discussions is that the appellant admittedly had better merit over and above respondent No, 5, Mr. Niaz Ahmed Sheikh and was eligible for allocation to Accounts Group and this fact was admitted by FPSC itself before the High Court vide paragraph 7 of the objections filed by it in the Constitutional Petition No, 406 of 1991, stating that there were three vacancies in the Accounts Group and the appellant could be adjusted against one of the three posts but was allocated to Information Group. On the other hand, Mr. Niaz Ahmed Sheikh was not allowed any Group and it was specifically mentioned that he was not found fit for Information Group even. It has also been admitted by the representative of the departments that there was no vacancy in the Accounts Group but on the direction of the High Court of Sindh, Mr. Niaz Ahmed Sheikh was allocated Accounts Group. The High Court of Sindh never ordered to allocate any specific or particular Group to Mr. Sheikh, but to the extent of his adjustment, and the Establishment Division at their own, in spite of the fact that there was no vacancy in the Accounts Group, allocated Accounts Group to Mr. Niaz Ahmed Sheikh. It is strange to note that a person who had better merit has been relegated in position by allocating Information Group vis-a-vis a person who had lower merit, but has been allowed better Group, i.e, Accounts Group, and it is a clear case of discrimination, particularly when Dr. Siraj Mustafa Jokhio's claim on identical point was admitted.
It is also interesting to note that the appellant having been inducted, into Information Group earlier than respondent No, 5, Mr. Niaz Ahmed Sheikh, is in BPS-17 since 1987, while Mr. Sheikh being in the Accounts Group, having been adjusted in August, 1992, has reached to BPS-18, and it is a very unhappy and unfortunate situation and has created serious complications. The review application made by the appellant was disposed of/dismissed on the sole ground that Dr. Siraj Mustafa had better merit than the appellant but full factors were not brought on record that the appellant had higher merit than respondent No, 5, Mr. Niaz Ahmed Sheikh for being inducted into Accounts Group, and that Dr. Siraj Mustafa Jokhio was also given the Accounts Group. We, therefore, hold that within the fore-corners of rules and legally also the appellant has got better case than Mr. Niaz Ahmed Sheikh, respondent No, 5 for allocation to Accounts Group. It may also be observed that Mr. Sheikh has neither filed objections nor contested the appeal at the time of hearing and, therefore, he is proceeded ex parte. He is only necessary party, therefore, the objection of non-joinder of others is not tenable.
9. As earlier stated, similar question had been the subject-matter of adjudication before this Tribunal in Appeal No, 88(R) of 1994 filed by Dr. Siraj Mustafa Jokhio and the facts of the instant case are identical to that appeal. That appeal was allowed by the Tribunal and the relevant paragraph 10 of the judgment is reproduced hereinbelow: "10. As we see from the High Court's judgment, three vacancies caused by repeaters and non- joiners were carried over to the next competitive examination on the basis of O.M. Dated 4-11-1987.
It was held by the High Court that the Government's decision conveyed through this O.M. Could not be made to operate with retrospective effect, so as to embrace the successful candidates of 1986 examination. This in fact was the ground on which relief was given to respondent No, 5 with a direction that he may be considered for adjustment. But there is nothing in the judgment to show that the High Court passed any direction for his allocation to a particular group. This being so, there is substance in the appellant's contention that the respondent should have been allocated to Postal Group in accordance with his preferences, if at all, it be conceded that he was found unsuitable by the Public Service Commission for allocation to Information Group. Since the appellant secured 23rd position in the merit list of Sindh Rural, he was entitled to be considered for the Accounts Group in preference to respondent No, 5, who had been placed against serial No, 26th of the list and had originally been ignored for want of a vacancy. The Establishment Division had no justification whatsoever in disregarding the appellant for a post in the Accounts Group which is considered better than that of Postal Group and had to be given to him in accordance with the options given in the application for the competitive examination. In all fairness, the appellant should have been transferred from Postal Group to the Accounts Group and the resulting vacancy in that Group could then be utilised for accommodation of the respondent in compliance with the High Court's judgment."
' In compliance with the judgment of the Tribunal, the Establishment Division had reallocated Dr. Siraj Mustafa Jokhio the Accounts Group in spite of the fact that there was no vacancy, the case of the appellant is also identical to that case. Therefore, relying on earlier view taken in Appeal No, 88(R) of 1994, and for the reasons stated above, we accept the appeal and direct the respondents that to meet the end of justice, the appellant be reallocated the Accounts Group instead of Information Group. Ordered accordingly.