' MUHAMMAD RAZA KHAN (MEMBER).---The appellant applied for the post of Junior Technician Mechanical, during the process of selection for the said post through advertisement in the press, and consequently he was selected and an offer of appointment was issued where he was shown to be placed in B-13 whereas the post was in B-15. He joined service with effect from 27-2-1983 and he was placed in B-13. Later on vide order dated 11-5-1987 he was allowed B-15. He demanded that he should be allowed B-15 with effect from the date of joining service as the post carried the said scale but vide order dated 2 1 -3- 1994 the request was rejected. He filed a departmental appeal on 1-4-1994 followed by reminders and a writ petition where after the appellant was afforded an opportunity of hearing and finally the departmental appeal was rejected vide order dated 14-4- 1996 which was allegedly received by the appellant on 20-4-1996. These orders dated 21-3-1994 and 11-4-1996 have been challenged by way of the present appeal on the main ground that since the post against which the appellant was appointed carried B-15 and there was no post in B-13, therefore, he was asked to perform the duties of higher responsibilities and thus he was entitled to the salary and other benefits of the said scale.
2. The respondents contested the appeal mainly on the technical grounds of limitation and estoppel and on the factual defects that the appellant did not possess the required qualification and experience and, therefore, he was placed in a junior scale till such time he gained the required expertise and accordingly he was placed in the due scale. We have listened to the arguments on behalf of the parties and perused record.
3. The main objection on behalf of the respondents is with regard to limitation in filing of the present appeal. Allegedly the cause of action accrued to the appellant in 1983 when he was initially appointed to a junior scale but he did not challenge the same. Later on in 1987 he was allowed the scale of pay attached to the post but with immediate effect. This meant that the respondents have denied the grant of higher scale with effect from the date of appointment. The appellant should have adopted the course of seeking legal remedy at that time, or at the most, when the benefit of proper scale was extended with prospective effect. No positive action appears to have been taken except for filing of an application followed by reminders and waiting for almost more than seven years when the request of the appellant was practically rejected for the third time on 21-3-1994 on the ground of limitation. Thereafter, the appellant tried to create a cause of action and to renew the period of limitation that has already expired by way of filing another appeal on 1-4-1994 and filing a writ petition to get this departmental appeal disposed of. Instead of adopting this roundabout method the appellant should have filed service appeal in 1994. Thus with these facts and arguments the learned counsel for the respondents urged that the appeal was hit by the statutory provisions of limitation.
4. The learned counsel for the appellant tried to meet the argument by saying that the appellant had been continuously pursuing his case with the department and initially he got his due scale in 1987 and he was also promised verbally for the redressed of his grievance but finally his claim was rejected on 21-3-1994 and departmental appeal was filed within the period of 30 days i,e, on 1-4- 1994 and which has been finally rejected vide order dated 11-4-1996. Hence the present appeal on 8-5-1996 was well within the time.
5. We tend to agree with the argument of the learned counsel for the respondents for several reasons:-- ' Firstly the appellant should have agitated the grant of lower scale at the time of initial appointment when the offer was made and joining report was submitted by him. The original order causing grievance to the appellant was the offer of appointment. There is no proof that this order was challenged in writing within thirty days thereof under section 22 of the Civil Servants Act, 1973.
Thus, the right of appeal was lost and hence an appeal under section 4 of the Service Tribunals Act was also not competent.
' Secondly even if the belated application for the grant of proper scale filed by the appellant is taken to be a belated departmental appeal, the same did not ask for the grant of higher scale with retrospective effect i,e, from the date of joining. In the said application/appeal the appellant simply demanded the grant of scale attached to the post and this request was accepted and the scale was duly allowed with immediate effect. Thus the appellant had no cause thereafter to ask for antedation of grant of higher scale.
' Thirdly, the higher scale was allowed, as stated earlier, at the request of the appellant by the respondent department ' with immediate effect'. Even if the first application for grant of the relevant scale is considered to be a departmental appeal or application for review, the same was disposed of and the relevant scale was allowed but with prospective effect. This amounted to the rejection of departmental appeal/application for review for retrospective benefit and, at the most, the appellant could have filed service appeal within thirty days thereof.
' Fourthly, with the grant of the scale of the post the grievance of the appellant was partly redressed and the refusal to antedate the benefits of the higher scale allowed third opportunity to the appellant which was not also followed by adopting proper course. Repeated representations/departmental appeals are not provided in the law.
' Fifthly, without prejudice to the above reasoning, the final rejection order, passed on 21-3-1994 was to the effect, 'their request for allowing them the original pay scale at this belated stage is not accepted as it was relaxation in prescribed qualifications/experience which is not being allowed by the Authority'. This was not at all the original order. Practically the appeals filed in 1993 and 1994 have been rejected on the point of limitation. The department has not ' condoned the delay in filing departmental appeal'. Thus when the original departmental appeal was belated, the service appeal based on the rejection of such departmental appeal would be definitely time-barred.
Hence the appeal of the appellant, even if it had been filed in 1994, would have been hit by the prescribed period of limitation as barred by time whereas the service appeal was not filed at that time and the appeal filed on 8-5-1996 was hopelessly barred by time.
' Lastly, the filing of departmental appeal on 1-4-1994 and adopting the course of pressurizing the department to hear the aggrieved civil servant and to dispose of the 'belated' departmental appeals and thus getting a third order of rejection on 11-4-1996 to escape the effect of the clearance of limitation be filing the service appeal on 8-5-1996 is not only a legal device to avoid the rigor of law but all this amounts to the mockery of the provisions of law.
6. The statute had prescribed a clear schedule for filing service appeal with utmost expediency.
Departmental appeal has to be filed within thirty days from the accrual of cause of action and after waiting for ninety days or getting the first denial, service appeal has to be filed within thirty days thereof. Thus the over-stretching of this specified schedule will be a negation of the statutory provision and, therefore, an illegal exercise. The belated departmental appeal cannot be entertained by the department nor can it be accepted. There is no provision in law providing the power to the department to condone the delay in filing the departmental appeal. This delay cannot be even condoned by the administrative forum because the provision of condonation of delay has been introduced in the Service Tribunals Act, 1973 and not in the Civil Servants Act, 1973.
Moreover, the law clearly lays down the provision of only one departmental appeal, application for review or representation. Successive appeals, reminders, verbal requests, representations, miscellaneous petitions and filing of Constitutional petitions will amount to negation, rather violation, of the clear provisions of statute. Furthermore,. Once a reply is issued by the employer department, on the application of the civil servant, after the accrual of cause of action it would amount to the appellate order and period of thirty days would run therefrom. There is no possibility of having successive orders to justify the delay in filing of the appeal or to provide a ground for condo nation of delay of not only days but of several years. The cause of action originally accrued in 1983 and the departmental appeal has been filed in 1996 and if, by unfair stretching of various modes and means adopted, the present appeal is held to be within time then the provisions of limitation contained in section 4 of the Service Tribunals Act and section 22 of the Civil Servants Act would practically become redundant and no appeal will be disposed of as time-barred hereafter.
Thus, for the foregoing reasons, we hold that the appeal is barred by time.
7. The argument of the learned counsel for the respondents with regard to estoppel against the appellant has also a lot of force. The appellant was offered an appointment in a lower scale. He accepted the offer without any hesitation or reservation. This amounted to an estoppel. When after a couple of years the appellant demanded higher scale with no claim of retrospective effect. This application was accepted and the relevant higher scale was allowed with prospective effect. Since the appellant had not asked for its retrospective operation at that time, therefore, he is estopped to claim it thereafter. The refusal to grant ante-dated benefits of higher scale was all along been refused by the respondent department on the ground that the appellant had accepted the terms and conditions of appointment in a lower grade and, therefore, he was not competent to challenge the said refusal.
8. While touching the merits of the case it will suffice to say that appellant had a good case had he adopted proper legal course for the redressal of his grievance in time. Under section 17 of the Civil Servants Act, 1973 a person is entitled to salary and benefits of the post against which he is appointed. The post was in higher scale and the appellant was ordered to shoulder the higher responsibilities while being placed in a lower scale. The post was not down-graded and, therefore, the appellant had definitely a very good chance of success had he filed the service appeal in 1983 or at the most in 1987. With the passage of time a lot of water flows down the bridges. A lot of complications crop-up. Several persons might lose their seniority if the appellant is allowed higher scale with retrospective effect after 13 years of the accrual of cause of action. It may also be pointed out that the original advertisement does not indicate the scale of pay for which applications were invited. The scale was disclosed for the first time after selection of the appellant and issuance letter of appointment. The said scale was not a scale of the post. The learned counsel for the respondents argued that the appellant lacked in required educational/technical qualifications and the minimum length of experience in a recognized institution. Thus, the appellant was adjusted in a lower scale so that he may be duly trained to get required experience to be eligible to meet the minimum prescribed qualification and experience. If a person was not equipped with the necessary qualification and experience he could not be deemed to be eligible for appointment to a particular post and, therefore, till such time he fulfils the deficiency, he could not be validly "appointed to the post" to be eligible for all the benefits attached to such posts, as per requirement of section 17 of the Civil Servants Act.
9. Thus, for the foregoing reasons we dismiss this appeal with no order as to costs.
10. Parties be informed.