SAIDUZZAMAN SIDDIQUI, J.---The petitioners are seeking leave to appeal against the judgment of N.-W .F.P.
Service Tribunal dated 10-1-1996 whereby the learned Tribunal accepted service appeal filed by respondent No,1 against the departmental authority and held respondent No,1 eligible for pro forma promotion with effect from 15-9- 1985 and also declared him senior to respondents Nos.5 to 18.
2. The admitted position in the case is that respondent No,1 was senior to the petitioners in the lower grade namely , Grade-17. The respondent No,1 was considered for promotion alongwith the petitioners and others but his case was deferred by the Departmental Promotion Committee (D.P.C.) while his juniors were promoted to the next grade on 15-9=1985. The respondent No,1 was also subsequently promoted to Grade-18 with effect from 26-3- 1987 vide Notification dated 26-10-1987. The respondent No,1 made a representat ion to the departmental authority to give effect to his promotion in Grade-18 either from 10-8-1982 or 15-9-1985, the dates on which persons junior to him were promoted to Grade-18. The departmental authority finally communic ated respondent No, 1 on 6-2- 1994 that his representation for ante-dating his promotion has not been accepted where after respondent No,1 preferred appeal before the Service Tribunal which has been accepted.
3. In seeking leave to appeal, the learned counsel for the petitioners raised two-fold contentions. It is firstly , contended that respondent No,1 was considered by the D.P.C. And he was superseded when his juniors were promoted to next grade namely Grade-18. The second contention of the learned counsel for the petitioners is that respondent No,1 failed to prefer service appeal before the Service Tribunal within limitation prescribed for filing of appeal as he could at the most wait only for 120 days after filing departmental representation for submitting his service appeal before the Service Tribunal. The contentions raised by the learned counsel for the petitioners have not impressed us.
4. The learned Tribunal categorically held in the impugned judgment after perusing the minutes of Provincial Selection Board held on 3-8-1985 which were summoned in the case, that the case of respondent No,1 for promotion to Grade-18 was deferred. The learned counsel for the caveator has also drawn our attention to the infamies comments filed by the department before the learned Tribunal wherein the allegation of respondent No,1 that his case for promotion to Grade-18 was only deferred by the Provincial Selection Board was not denied. There is nothing on record before us to show that respondent No,1 was superseded when his juniors were promoted to Grade-18. As the case of respondent No,1 was deferred by D.P.C. And he was subsequently promoted, according to well-settled principles of seniority , respondent No,1 would rank senior to all those persons who were promoted earlier to him but ranked junior to him in the, lower grade from where they were promoted. We, therefore, do not find any error in the order of Tribunal in declaring respondent No,1 senior to the petitioners and other private respondents as admittedly respondent No,1 was senior to them in the next lower grade namely , Grade-17. The second contention of the learned counse l for the petitioners is that the appeal before the learned Tribunal was incompetent as it was filed long after making the representation to departmental authority by the respondent No, 1.
It is contended that under the law, respon dent No,1 should have approached the Service Tribunal within 30 days of the expiry of the period of 90 days from the date of filing of the departmental representation/appeal, if the same was not decided. The record produced before us indicates that the departmental representation/appeal filed by respondent No,1 remained undisposed of for a long time. However , in reply to a letter sent by the Chief Conservator of Forests, N.-W .F.P. To the Secretary , Forestry , Fisheries and Wildlife Department, Government of N.- W.F P. On 6-2-1994, the latter informed the Chief Conservator of Forests that the appeal/representation of respondent No,1 has been turned down. The copy of this letter was endorsed to respondent No,1 on 29-3-1994. It is not disputed that from the date of this letter the appeal filed by respondent No,1 before the Tribunal, was within time. In the case of Zafar Iqbal v. WAPDA (1995 SCMR 16), this Court while considering the period of limitation within which an aggrieved civil servant could file appeal before the Service Tribunal observed as follows:-- "3. It seems that section 4, Service Tribunals Act, prescribes two periods of limitation for preferring appeals to the Tribunal. An aggrieved civil servant can come to the Tribunal after his appeal for representation before the department has been disposed of, or, he can wait for the decision on his departme ntal appeal for 90 days and then file an appeal before the Tribunal without waiting any further; in this case the appellant chose to wait for the final decision on his departmental appeal and he filed the appeal before the Tribunal within 30 days of the communication of the order of the rejection of his appeal. It is to be noticed that even though his appeal was rejected on 30-9-1986 the order of rejection was not communicated to him till 21-11-1986 and he preferred the appeal before the Tribunal on 4-12-1986. In the circumstances his appeal could not be dismissed on the ground of limitation. Accordingly , we accept this appeal, set aside the judgment of the learned Tribunal and direct that the appellant's appeal should be disposed of in accordance with law .
Similarly , as the departmental authority has not dismissed the representation/appeal of respondent No,1 on the ground of limitation, the Tribunal could not dismiss the appeal of respondent No,1 as not competent, see Anwar Muhammad v. General Manager , Pakistan Railways (1995 SCMR 950). Therefore, no exception could be taken to the order of Tribunal deciding the appeal of respondent No,1 on merits." -
5. No case is made out for interference with the order of Service Tribunal. The petition is, accordingly , dismissed and leave is refused.