' CH. A. RAHMAN KHAN (MEMBER).---Mr. Gul Daraz, Assistant Chief, the appellant, planning and Development Division, has come in appeal against the final seniority list of Research Officers (B-17) under the Economists Group issued on 21-3-1989 whereby he was placed at Serial No, 60 and thus shown junior to Mr. Mushtaq Ahmed, Research Officer, Respondent No, 5 who was placed at Serial No,
28. He submitted an appeal, dated 14-4-1988 which was rejected by Planning and Development Division vide Order, dated 8-6-1988. The appellant, however, made another appeal, dated 24-6- 1988 to Secretary, Planning and Development Division, respondent No, 1 which has remained unresponded to date.
2. Briefly, the facts of the case are that the appellant was appointed as Economic Investigator in the Economic Affairs Division through Federal Public Service Commission on 19-2-1978. Respondent No,5 who was an Assistant in the Economic Affairs Division was promoted as Economic Investigator with effect from 23-5-1979. In the seniority list of Economic Investigators issued on 24-4-1980, the appellant was shown senior and placed at serial No, '13 and respondent No, 5 at Serial No, 16.However, in 1980-81 as a result of the re-organization of Economic Affairs Division, respondent No, 5 was declared surplus but was subsequently absorbed in Manpower Division.
3. The learned counsel for the appellant submitted that Economists and Planners Group was formed in 1976 vide 0.M., dated 25-5-1976 according to which all posts of Research Officers including those of Manpower Division were included in the aforesaid Group and the administrative control of this group was entrusted to the Planning and Development Division. Henceforth all proposals to fill posts in BPS-17 and above were required to be processed on centralized basis by the Planning and Development Division. It was submitted that in spite of the clear instructions on the subject, Secretary, Manpower Division, respondent No, 4 promoted respondent No,5 as Research Officer on 18-11-1982. In the Economic Affairs Division the vacant posts of Research Officers were being filled by transfer from among the senior members of the group by respondent No,
1. As a result of this the appellant remained as Economic Investigator even when his junior respondent No, 5 had been promoted in the Manpower Division.
4. It was further contended by the learned counsel for the appellant that - whereas there was no change in the Promotion Policy, all posts of Economic Investigators which though included in the Economists and Planners Group but administered locally by Ministries/Division, etc. Were upgraded from Grade-16 to Grade-17. The incumbents of such posts thus on promotion/upgradation came under the direct administrative control of respondent No,
1. The appellant was, therefore, also upgraded to Grade-17 with effect from 12-11-1983. It was submitted that it was in the light of this background that respondent No, 5, who was promoted as Research Officer from 18-11-1982 on irregular basis was shown senior to the appellant in the impugned final seniority list issued on 21-3- 1988. The appellant represented on 14-4-1988 against this injustice to the Section Officer (Admn. II), Planning and Development Division, Islamabad which was turned down on 8-6-1988. He therefore, submitted an appeal, dated 21-6-1988 to respondent No,1 which has remained unresponded till to date.
5. The learned counsel for the appellant contended that as per the seniority list of Economic Investigators issued on 24-4-1980, the appellant was decidedly shown senior to respondent No, 5.
The promotion of respondent No,5 as Research Officer (B-17) could not, therefore, be made without the consultation of respondent No,1 who was to exercise administrative control of the Group with effect from 9-2-1977. The promotion of Respondent No,5 as Research Officer (B-17) against the post which was included in the Economists and Planners Group, over the heads of a number of his seniors in the Group and also without the clearance of the Planning and Development Division is irregular and illegal ab initio. Since the Law does not recognize an irregular and illegal action, the promotion order of respondent No, 5, dated 18-11-1982 ceases to exist in the eyes of Law. It was, therefore, strongly contended that the impugned notification, dated 18-11-1982 may be withdrawn and the appellant's seniority viz-a-viz Respondent No, 5 as Research Officer may be re-fixed on the basis of the seniority list of Economic Investigators circulated on 24-4-1980.
6. The learned counsel alongwith the representative of the respondents raised the preliminary plea that the present appeal was time-barred as it was hit by section 4(1) of the Service Tribunal Act, 1973. The appellant addressed his first representation to the Section Officer (Admn. II), Planning and Development Division which was rejected vide letter, dated 8-6-1988. The appellant then addressed second appeal to the Secretary, Planning and Development Division, dated 21-6-1988 which remained unresponded because his first representation had been rejected earlier. Since only one departmental appeal is allowed, the time for counting 30 days would start from the date his first representation was rejected i.e, 8-6-1988. He could not avail 90 days from the date he made second appeal i.e, 21-6-1988. It was contended that the present appeal was, therefore, liable to be rejected as time-barred.
7. It was further contended by the learned counsel for the State that Mr. Mushtaq Ahmed, Research Officer, respondent No, 5 was absorbed in Manpower Division after having been declared surplus in the Economic Affairs Division as Economic Investigator. Although the Economists and Planners Group was formed in 1976 but according to the D.O. Letter, dated 9th February, 1977 the case of promotion/appointment were not to be processed any more. The extracts of this D.O. Letter are reproduced below:- XXXX Xxxx XXXX XXXX "In pursuance of the Establishment Division O.M. No, 10/2/75-ARC, dated the 25th March, 1967, a separate occupational group known as the 'Economists and Planners Group' has been constituted.
The Draft Recruitment Rules for the Group have been approved and are expected to the notified shortly.
2. As the Group has become operative, you are requested to refer all requisitions for recruitments to vacant economic posts in Grade-17 and above to the Planning Division.
3. You are further requested not to place any requisitions with the FPC nor send any proposals or summaries to the Establishment Division for approval of promotion/appointment cases. with regards:"
8. It was further contended that the above position regarding the promotion/appointment cases was further clarified vide D.O. Letter, dated 20-10-1979 which is reproduced below:- XXXX XXXX XXXX XXXX "Please refer to your D.O. Letter No, 4-2(I)/77-Estt. Dated the 12th August, 1970.
2. It is clarified that all posts of the Manpower Division will remain outside the Planning Group, and the existing incumbents will get normal promotion in their own line as had been the position before inclusion of the posts in the E&P group. However, whenever a vacancy occur which is required to be filled by initial appointment, the post shall revert to the E&P Group and Planning Division will take action to fill it according to the qualification and experience prescribed by them for such posts in Economic and Planning Group. The post would henceforth be borne as the cadre of Economic and Planning Group."
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9. In this regard the position was further amplified vide D.O. Letter, dated 23-1-1980 which is also reproduced below:- XXXX XXXX MCCX XXXX "Please refer to your D.O. No, 4-2(1)/77-Estt. Vol-II, dated the 13th November, 1979, regarding exclusion of all posts of the Manpower Division from Economists and Planners Group.
2. It may again be clarified that the decision to keep the posts of Manpower Division outside the Plannin Grou is confined to the duration such posts are held by the existing incumbents of these posts. As soon 'as a vacancy occurs which is required to be filled by initial appointment, the post shall revert to the Economists and Planners Group and will be filled according to rules relating to that Group.
3. If any further elucidation is required, it may be discussed in a meeting between Joint Secretary, Planning, Manpower Division and the undersigned."
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10. In view of the above clarifications, it was submitted that it was amply clear that the pogis of Economic Investigators on the strength of the Manpower Division were kept outside Economists and Planners Group and no restrictions were placed on the promotion vacancies. However, no recruitment was to be made against a vacancy of a Research Officer (B-17) which was to be filled in by initial appointment. Only regular vacancy had to revert to the Economists and Planners Group. It was, in this context, that the case of the appellant for promotion was processed through the Establishment Division. This was not a case of initial recruitment and it fell within the promotion Policy which was operative vide letter, dated 18-3-1977 till the recruitment rules were fmally notified vide Notification, dated 3-10-1984. The fact that it was a promotion vacancy under 0. M, dated 25- 3-1976 being 25% quota for promotees on the basis of selection against which the appellant was promoted, his promotion by Manpower Division could not be challenged. If it were an initial recruitment vacancy, it was only then, that this vacancy was to revert to the Planning and Development Division and not otherwise. The appointment of respondent No,5 against the promotion vacancy was, therefore, notified by the Establishment Division vide notification, dated 18-11-1982. If there was any change in the Promotion Policy of Economic Investigators held on the strength of Manpower Division, the Establishment Division would have certainly rejected the promotion case of respondent No,5. Therefore, there could be no confusion in this matter. In view of this, respondent No, 5 stood promoted as Research Officer (B-17) with effect from 18-11-982. The appellant was upgraded to BPS-17 only with effect from 12-11-1983 as a result of upgradation of his post. The impugned seniority list circulated on 21-3-1988, therefore, correctly placed respondent No, 5 at Serial No, 28 having been promoted with effect from 18-11-1982 and the appellant at Serial No,60 having been promoted with effect from 12-11-1983. In view of this, it was strongly contended that the present appeal of the appellant regarding changing the impugned seniority list may be dismissed with costs.
11. We have heard both the parties and examined the record presented to us carefully. We are of the firm view that under the then existing Policy, the posts of Economic Investigators held on the strength of Manpower Division were kept outside the Economists and Planner Group. We are also convinced that respondent No, 5 was promoted against the promotion vacancy and his promotion was duly approved by the Establishment Division as the controlling authority. As regards the question of the limitation, we are of the view that since first representation of the appellant was duly entertained by Planning and Development Division and replied, the appellant could not, therefore, submit another departmental appeal. The appeal is, therefore, in our opinion, hit by section 4(1) of the Service Tribunals Act, 1973 and is clearly time-barred. As a result, the appeal before us fails. No, order as to costs.
12. Parties be informed.