ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---The facts of this appeal are that appellant, Major (R)
Khalid Latif Chaudhary was inducted in the District Management Group in Grade-18 on 19-3-1976.
He was promoted to Grade-19 on 1-4-1984 and in the seniority list of Grade-19 Officers issued on 1- 4-1990, his name appeared at Serial No,7 following the name of Mr. Javed Alam Khanzada, whereas the names of respondents 2,3 and 4 were at Serial Nos.8, 9 and 10. The case of the appellant and the respondents for promotion to B-20 was placed before the CSB-II at its meeting held on 20-2- 1990, respondents Nos.2, 3 and 4, namely Major (R) Nadir Ali, Major (R) Muhammad Ashraf Nasir and Mr. Kh. Zaheer Ahmed, were approved for promotion to B-20 and their promotions took place with effect from 8-10-1990, 7-10-1990 and 9-5-1992 respectively. The appellant was not promoted but subsequently another meeting was held on 14-10-1990 and by notification dated 10-1-1991 appellant and three others were promoted to B-20 with immediate effect and not retrospectively.
2. The appellant after being promoted wrote a letter on 28-1-1991 to the Section Officer (CP-II), Establishment Division stating therein that his Juniors Maj. (R) Nadir Ali, and Maj. (R) Muhammad Ashraf Nasir have already been promoted to B-20 on 7-10-1990, therefore, he may be given original seniority of over those officers and allowed the increments and fixation of pay in B-20 from the date the juniors were promoted to B-20 under F.R. 26(C). A Gradation List of B-20 Officers as on 15- 2-1993 was issued on 17-6-1993, i,e, after two years of promotion of appellant. The appellant by letter dated 20-6-1993 addressed to the Secretary, Establishment Division submitted that his seniority in the list of B-20 Officers has not been shown in correct position as he was already senior to the respondents in the gradation list circulated on 1-4-1990 wherein his name was above the private respondents. He again made another representation on 25-1-1997 to the Secretary, Establishment Division by referring to his earlier representation dated 20-6-1993 and requested to correct his seniority position given in the Gradation List of B-20 Officers as on 15-2-1993 as he was senior. He also addressed another letter on the same date, i,e, 25-1-1997 to the Principal Secretary to the Prime Minister, with the same request. He then on thevery day addressed a letter to Mr. M.A.
Asghar Chaudhry, Section Officer (CP-II) Establishment Division on 25-1-1997 referring to his earlier representation dated 28-1-1997 and 20-6-1993, regarding assigning of correct seniority position in the Gradation List of D.M.G. Officers as stood on 15-2-1993, wherein he also stated that he had heard nothing so far and that his representations dated 28-1-1991 and 20-6-1993 may be decided at the earliest. He also addressed a letter dated 11-2-1997 to the Secretary, Establishment Division making reference of his earlier representation dated 25-1-1997 and urged his claim for assigning seniority alongwith the officers who were considered for promotion to B-20 as per recommendations of the CSB-II meeting dated 20-2-1990 along with the benefit of fixation of pay in B-20. He was informed vide letter dated 13th March, 1997 with reference to his representation dated 25-1-1997 that his request for assignipg seniority in the gradation list of D.M.G. Officers (B-20) as stood, on 15-2-1993 was examined in the Establishment Division but it had not been found possible to grant the seniority as requested. Thereafter, the appellant preferred this service appeal on 31-3-1997.
3. The appeal was admitted and notices were issued to the respondents. Comments have been filed by the Establishment Division and private respondent No, 4, Mr. Kh. Zaheer Ahmed.
Respondents Nos.2 and 3, Maj. (R) Nadir Ali and Maj. (R) Muhammad Ashraf Nasir have neither filed comments, nor appeared, and there is no request for adjournment from their side, therefore, both of them are declared ex parte under Rule 19 of the Service Tribunals (Procedure) Rules, 1974.
4. Mr Sajjad Rafi, learned counsel appearing for the appellant argued that the appellant is entitled to seniority under section 8(4) of the Civil Servants Act, 1973 as he was already senior to the respondents 2 to 4 in the gradation list issued in 1990 in BPS-19. It was vehemently argued that there was no reason not to promote the appellant along with the respondents and this was neither supersession nor deferment, therefore, he may be assigned seniority over them. He has referred to the cases reported in 1981 SCMR 531; PLD 1997 Lah. 1; 1978 SCMR 428; 1991 PLC (C.S.) 1195 and 1993 PLC (C.S.) 565 and 1011.
5. Mr. Kh. Zaheer Ahmed, respondent No,4 argued at length and his contention was that very induction of the appellant was in violation of policy and rules and contrary to the provisions of Article 240 of the Constitution. He submitted that he had made representation about suchillegal appointment to the Secretary, Establishment Division in 1982 but his representation had not yet been decided. He has referred to PLD 1992 SC 646 in support of his submission. He also raised legal objection that the appeal is barred by limitation and without antedation of promotion, no seniority could be assigned to the appellant.
6. Mr. Ali Abid, Section Officer appearing on behalf of the Establishment Division argued that seniority is to be assigned from the date of regular promotion which has been properly given to the appellant. It was also argued that the appellant in the year 1993 made a representation which was duly examined and the appellant was informed vide Memo. dated 14-12-1993 that his seniority had correctly been reflected in the seniority list of D.M.G. Officers in B-20, where after the appellant neither filed any appeal before the Tribunal, nor requested the Establishment Division for antedating of his promotion and seniority, therefore, the appeal at this stage is not competent and also time-barred. He submitted that the case of the appellant was examined to the extent of seniority only as he never made any representation from 1991 after his being promoted to B-20 till 1997 for antedating of his promotion, and further submitted that BPS-20 posts are selection posts and it is the discretion of the competent Authority to agree or disagree with the recommendations of the C.S.B. and this discretion exercised by him is according to the promotion policy.
7. There are some questions which are to be resolved. Admittedly, the appellant was promoted on 10-1-1991 to BPS-20, while respondents Nos.2, 3 and 4 in C.S.B. meeting held on 20-2-1990 and notification of respondents 2 and 3 was issued in October, 1990 but in respect of respondent No, 4 on 9-5-1992, who was on deputation and on return, his on which my juniors were promoted to BS- 20 under F.R. 26(c) and obliged."
'Thereafter the appellant made representation to the Secretary, Establishment Division on 20-6- 1993 against the gradation list of BPS-20 officer which was received by him on 17-6-1993. This representation was duly examined in the Establishment Division in consultation with Law and Justice Division at the level of Secretary-General and finally the Additional Secretary vide minute dated 13-12-1993 remarked that the appellant may be informed and accordingly by letter dated 14-12-1993, the representation dated 20-6-1993 was rejected. This letter reads as under: "Reference representation, dated 20th June, 1993, submitted by Mr. Khalid Latif Chaudhry, a BPS-20 officers of the D.M.G. to the Secretary, Establishment Division on the above subject.
2. Mr. Khalid Latif Chaudhry is informed that his case has been examined in the Establishment Division and it has been observed that the competent Authority did not approve his promotion during the CBS-II meeting dated 20-2-1990 while some of his junior colleagues were approved for promotion by the competent Authority. The seniority of Mr.Khalid Latif Chaudhry has, therefore, been correctly reflected in the Gradation List of D.M.G., BPS-20 officers as on 15-2-1993."
When put in this situation, the appellant submitted that he did not receive this letter. We do not agree with the appellant, as the appellant while posted as O.S.D. in the Establishment Division, was very much there and was following his case also, and it is unbelievable that this letter did not reach him. Moreover, copy of the aforesaid Memorandum was also endorsed on his given home-address, and it is a settled law that letter sent on the given address shall be presumed to have been served, and reliance is placed on PLD 1981 SC 225. Thus, we are of the view that the claim of the appellant for seniority had finally been decided and rejected by the competent Authority in December, 1993.
Therefore, we have no doubt that his representation regarding seniority was responded and it was open to the appellant to have come before this Tribunal within 30 days which he failed to do.
9. Now we come to the representations made in 1997 and the reply dated 13-3-1997 sent to the appellant. After a period of about four years of the rejection of his representation on 14-12-1993, he made two representations on 25-1-1997, to the Establishment Secretary and the Principal Secretary to the Prime Minister. Simultaneously on the same day, viz. 25-1-1997, he sent a letter to Mr. M.A.
Asghar Chaudhry, Section Officer (CP-II). Establishment Division and requested that his representations may be decided. This letter reads as under: "Kindly refer to my representations dated 28-1-1991 and 20-6-1993 regarding my request for assigning correct seniority position in the Gradation List of D.M.G. Officers as stood on 15-2-1993.
(2) Nothing has so far been heard from your end. It is therefore, requested that my representations may be decided at the earliest."
According to the appellant, his representation made on 25-1-1997 was examined and duly replied vide letter, dated 13th March, 1997 written by Mr. Muhammad Asghar Chaudhry, Section Officer.
Since this letter has been treated as final rejection order by the appellant, and for the purpose of determination of time limitation it is material document, it is reproduced hereinbelow: "Reference representation dated 25-1-1997 of Major (Retd.) Khalid Latif on the above subject.
(2) The request for assigning seniority in the gradation list of D.M.G. Officers (BPS-20) has been considered/examined in the Establishment Division but it has not been found possible to grant the seniority as requested.
Therefore, we have to determine as to how far this impugned letter could be relevant in this case for the purpose of limitation and what legal force it has got.
10.With great hesitation I am to say that some time truth comes out and purpose of writing letters to Section Officers, Mr. M.A. Asghar Chaudhry, clearly indicates that just to cover up the period of limitation, this was deliberately done.
11.The appellant, in his letter dated 25-1-1997 addressed to Mr. M.A. Asghar Chaudhry, Section Officer, made reference to his representations dated 28-1-1991 and 20-6-1993, which according to him remained undecided. In the letter addressed to Secretary, Establishment Division on the same date i,e, 25-1-1997 and Principal Secretary to the Prime Minister, he has only made reference of his representation dated 20-6-1993. With regard to representation to Secretary as submitted on 15-2- 1993, he has not made any reference of his representation dated 28-1-1991 which he mentioned in Mr. Asghar Chaudhry, Section Officer's letter. It is very unfortunate that when reply is sent on 13-3- 1997 under signature of Mr.M. Asghar Chaudhry, S.O., Establishment Division, he refers to his representation dated 25-1-1997 but no reference was made to his earlier representations of 28-1- 1991 and 20-6-1993. It is pertinent to note that his representation ted 20-6-1993 was previously responded by Establishment Division on 14-12-1993 when he got a reply and reference should have been made that your earlier representation was examined and replied. This fact has deliberately been suppressed by Section Officer for making his appeal within time and this letter has been procured very tactfully and we have taken serious note for which Secretary Establishment may also please take cognizance.
12. It is a settled law that there is , no provision for successive repr.sentations and only one representation/appeal is provided in the law. The subsequent representations/appeals made to the Secretary, Establishment Division and the Principal Secretary to the Prime Minister or the Section Officer (CP-II), Establishment Division were an exercise in futility, as the subject matter of these representations was one and the same which already stood decided and rejected vide Memorandum, dated 14th December, 1993. The Hon'ble Supreme Court of Pakistan has taken cognizance of such eventualities and in the case reported in 1989 SCMR 1267. Their Lordships have held that if the subsequent representations seek the same relief which was sought in the first representation, the period of limitation would not start from the date of rejection of the second representation. In the case reported in 1987 SCMR 92, it has also been held that the period spent in making subsequent representations could not be excluded from the period of limitation. Therefore, in view of the above enunciation of law, the rejection order dated 13-3-1997 issued by Mr. M. Asghar Chaudhry, Section Officer (CP-H), cannot enlarge the period of limitation.
13.Mr. Kh. Zaheer Ahmed, respondent No, 4 raised legal objections vith regard to maintainability of appeal and the question of limitation. Both the objections have been dealt with by us in the preceding paragraph. His next objection was that induction of the appellant and other Army Officers was against the policy and he made representations in 1982 which were not responded and are still pending with the Government. We do not like to make any comments on this aspect of the case as Mr. Kh. Zaheer Ahmed never filed proper appeal before the Tribunal against such irregular induction.
14. Under section 8(4) of the Civil Servants Act, 1973 seniority is reckoned from the date of regular promotion/appointment and in the case of the appellant he has rightly been given seniority in B- 20 with effect from 10-1-1991 when he was regularly promoted. It is also a matter of record that the appellant never requested for ante-dated promotion in B-20 and unless and until his promotion is not ante-dated by the competent Authority he cannot regain his seniority. On this, we refer to a case Federation of Pakistan v. Muhammad Naqi Khan and others (1985 SCMR 2099) where it has been held that without getting promotion ante-dated the seniority cannot be given and it has been decided that the Tribunal is not competent to deal with this such matter. In the case reported in PLD 1994 SC 219 (Secretary to Government of Punjab, Education Department v. Saeed Ahmed Khan), it has been held that the Tribunal has no authority to ante-date the promotion of a civil servant in view of the bar contained in section 4(1)(b) of the Service Tribunals Act, 1973.
Therefore, keeping aside the point of limitation and successive representatives, the appellant has no case on merits for seniority.
15. There is also legal infirmity in this appeal. The appellant in the impugned gradation list of BPS- 20 officers figures at Serial No,22. He has made respondents 2, 3 and 4, namely Major (R) Nadir Ali, Major (R) Muhammad Ashraf Nasir and Mr. Kh. Zaheer Ahmed, as party in this appeal, but persons at Serial Nos. 19, 20 and 21 namely M/s. Ahmed Nawaz Shinwari; Sang-e-Marjan and Abdul Latif Khan, who are senior to the appellant, have not been arrayed as respondents. His prayer is that he may be given seniority above those respondents. In case, the appellant succeeds, naturally the persons at S.Nos. 19 to 21 would be affected and they are necessary party and not adverse order could be passed against them without hearing them.
16.Upshot of the above discussion is that appellant has no case of seniority on the ground that with regard to question of seniority his first appeal of 20-6-1993 was responded on 14-12-1993 and he did not come before the Tribunal within 30 days. He solicited another reply which he has impugned and we have dealt this matter in para. 12. He cannot get seniority without getting his promotion ante-dated. The appeal also suffers from legal infirmity as he has not arrayed other persons against whom he is claiming seniority.
17.For the reasons recorded above, the appeal fails on legal points as well as on merit, and is accordingly dismissed with costs.
18.Before parting with this judgment it may be observed that the appellant in pursuance of his representation dated 25-1-1997 sent reminder/representation on 11-2-1997, addressed to the Secretary, Establishment Division stating therein that his grievance may be redressed and seniority in the rank of Commission, BPS-20 may be corrected by ante-dating promotion to the date when the officers of his original batch were promoted on the basis of recommendations of the C.S.B's. meeting dated 20-2-1990. He has made similar prayer in this appeal. His earlier representations made from time to time right from 1991 to 1993 and 1997 related to question of determination of seniority and the question was thoroughly examined by the Establishment Division but was declined being not maintainable vide letter dated 14-12-1993 as already stated above. But the question of grant of ante-dated promotion was not examined according to the statement of Mr. Ali Abid, Section Officer, as no proper representation was made since 1990 for ante-ration. Therefore, we are not inclined to make any observations as this reminder was perhaps not considered and impugned order challenged before us was to the extent of seniority only.