' MUHAMMAD RAZA KHAN (MEMBER).---The appellant is working as Assistant Engineer and he had passed the departmental examination in June, 1994 where after, he has become eligible for promotion as Assistant Executive Engineer. The appellant is B. Tech. Engineer and quota of 5% is reserved for the category of B. Tech. Qualified engineers. It is alleged that a total number of 217 vacancies of A.E.E. In B-17 were available on the sanctioned strength of the department as on 25-8- 1994 and the posts falling within the quota 5% were 11 in number. Out of these posts 7 were already occupied whereas 4 posts were available. It is stated that in November, 1994 a D.P.C. Was held as a result of which 2 officers were promoted and 2 vacancies were not filled. Thereafter, in December, 1994 a meeting of D.P.C. Was again held and private respondent No,4 was promoted against the said quota vide impugned order dated 28-12-1994. The appellant filed a departmental appeal on 26-8-1996 which has been rejected on 25-11-1996 on the ground that the total number of posts of Assistant Executive Engineers have been reduced from 217 to 205 by up gradation of 12 posts and, therefore, the number of posts against 5% quota for B. Tech. Engineers was reduced from 11 to 10 and, therefore, all the posts were filled up and there was no vacancy available against which the appellant may be adjusted, despite the fact that he was eligible for such promotion. It has been stated therein that his case for promotion will be considered as and when any vacancy becomes available.' This appellate order dated 25-11-1996 has been challenged by way of present appeal filed on 22-12-1996.
2. The respondents Nos. 1, 3 and the private respondent No, 4 contested the appeal. The private respondent has also filed the written objections. We have listened to the arguments on behalf of the parties. There is no denial of the fact that the appellant qualified the required departmental examination in June, 1994. Prior to that he was not qualified and could not be considered for promotion. After June, 1994, the D.P.C. Was held in November, 1994 and two persons were promoted as Assistant Executive Engineers vide Notification dated 17-11-1994. The appellant has no grievance against them because they were admittedly senior to him. The respondent No,4 was considered and promoted by the D.P.C. Held in December, 1994 and consequently, he has been promoted. The appellant did not choose to file any representation within the prescribed period of 30 days and the service appeal within a period of 120 days thereafter. The first departmental representation was filed by the appellant on 26-8-1996 i,e, after more than 20 months of the impugned order. Thus, apparently the said departmental appeal was belated as per provision of section 4(1) of the Service Tribunals Act, 1973 read with section 22 of the Civil Servants Act, 1973. The learned counsel for the appellant referred to a verdict of the Supreme Court of 1995 holding therein that if the departmental appeal is decided on merits and not as time-barred the ground of limitation would be deemed to have been condoned by the department. So far as the respondents Nos. 1 and 3 are concerned, the said precedent of the Hon'ble Supreme Court is available to the appellant. While disposing of the departmental appeal in December, 1996 on merits, the delay of 20 months in filing the appeal can be presumed to have been condoned by the department or at least the department was estopped to raise the objection of limitation before this Tribunal because it is not rejected it on the said ground. However, this argument of the learned counsel will not help the appellant so far as his case against the respondent No, 4 is concerned. He was certainly not a party to the disposal of departmental appeal and he could not raise the objection of limitation earlier than the present proceedings. He was promoted with effect from 28-12-1994 vide an order dated 10-1-1995 and after the expiry of the prescribed period of limitation, a valuable right had accrued to him and the same could not be frustrated by a belated departmental appeal filed 20 months thereafter. Hence the respondent No, 4 is justified to argue that, so far as he was concerned, the present appeal was barred by time. The learned counsel for the appellant argued that the stand of the respondent-department was in favour of the respondent No, 4 and, therefore, the waiver of right to object about the period of limitation by the official respondents also amounted to waiver by the private respondent as well. There is neither any precedent supporting this view-point nor do we find any logic therein. The promotion of the appellant could have been impugned departmentally within 30 days and by service appeal within 4 months thereafter and on failure of the appellant to seek his remedy in time, the valuable right accrued to the said respondent had attained finality. We hold that the present appeal is barred by time so far as private respondent No, 4 is concerned.
3. The appellant has alleged that he was senior to the said private respondent No, 4 and should have been considered in preference to him and thus, by his departmental appeal he has prayed that he may be given retrospective effect from the date his junior i,e, private respondent No, 4 was promoted. The said respondent has given an entirely different version. Although the said private respondent appeared at Serial No, 13 in the seniority list and the appellant was at Serial No,11 thereof but vide an earlier Appeal No, 116(K) of 1994, the said respondent had agitated the issue of his seniority on the ground that he qualified the departmental examination in 1990, whereas the present appellant had qualified the said examination in June, 1994. The relief was provided to the said private respondent by the department and consequently, the said appeal was withdrawn.
4. Even today during the final hearing of the case, the learned counsel for the appellant had directed the entire arguments on the only point that the D.P.C. Should have considered the promotion of 4 persons including himself during its meeting of November, 1994 when 4 vacancies were still available for their reserved quota. However, the representative of the respondent- department clearly stated that the 12 posts of Assistant' Executive Engineers had been upgraded in April, 1994 and thus even in November, 1994, the 4 vacancies were not available. There were 3 vacancies out of which 2 were filled in November, 1994 and the third one was filled in December, 1994. In this view of the matter, the appellant is left with no case, because no vacancy was available at the moment, however, it may be admitted that factum of non-consideration by the D.P.C. In November, 1994 has not been challenged by the appellant by way of the departmental appeal. In the departmental appeal as well as the present service appeal, the order dated 28-12- 1994 has been impugned whereby the private respondent No,2 was promoted. The order dated 17- 11-1994 has not been impugned anywhere and, thus, the entire arguments lead us to nowhere.
5. Presently there is no seat available in the quota reserved and, thus, he could not be considered for promotion. However, as per commitment of the respondent-department, whenever any vacancy becomes available in the said quota, the appellant will be considered being the senior most. With these observations the appeal is dismissed with no order as to costs. Parties be informed.
ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---I agree with my brother Mr. Muhammad Raza Khan, Member, who has initiated the judgment in this case. I would like to add further that the cause of action arose to the appellant on. 28-12-1994 when respondent No, 4 was promoted and the appellant has come before this Tribunal for redress of his grievance after a period of about two years. No doubt, according to the judgment of the Supreme Court reported in 1982 SCM R 582 (Haji Kadir Bux v. Province of Sindh), two options are left for the aggrieved civil servants for the purpose of limitation, but, as rightly observed by my brother, one of the option was availed of by the appellant in filing departmental appeal with the C departmental authorities, but that option could not be stretched as far as the rights of private respondent No, 4 are concerned, as he on having been promoted on 28-12-1994 enjoyed this position for a long period of 20 months. Therefore, principle of locus poenitentiae is in favour of private respondent No, 4 and he had a vested right, and the appellant after a period of about 20 months has come to the Tribunal to get the order set aside, which will be unjust and improper. However, the department has already conceded that the case of the appellant will be considered for promotion as and when vacancy is available.