1. BASHARAT AHMAD SHAIKH, J.----All the three appeals are inter-connected and arise out of a single order passed by the Federal Service Tribunal, Islamabad acting as the Service Tribunal for Azad Jammu and Kashmir Council. These appeals are, therefore, being disposed of together.
2. The dispute is between three Income Tax Officers/Deputy Collectors, namely, Raja Muhammad Ayub Khan, Mr. Muhammad Rafique Tahir and Mr. Muhammad Azad Khan, and relates to the dates on which each of them should have been promoted to Grade-18. All three of them filed appeals before the Service Tribunal each one praying that the date of promotion in his case should be 1-7- 1981. The Tribunal has rejected the appeals filed by Raja Muhammad Ayub Khan and Mr. Muhammad Azad Khan while the appeal of Mr. Muhammad Rafiq Tahir has been partly accepted by ordering that he should be deemed to have been promoted with effect from 29-3-1982. This date is prior to the date on which Raja Muhammad Ayub Khan was promoted by the competent Authority, i,e,, 1-1-1983. These appeals have been filed with leave of this Court. Mr.Muhammad Rafiq Tahir is not satisfied with the partial success in having his promotion ante-dated to 29-3-1982 and wants that he should be given promotion from 1-7-1981. In their appeals Mr. Muhammad Azad Khan and Raja Muhammad Ayub Khan have also made the same prayer. The latter also is aggrieved by the ante-dating of Mr. Muhammad Rafiq Tahir's promotion from 29-3-1982.
3. So far as facts are concerned they are more or less undisputed. The inter se seniority of three appellants as well as Raja Sultan Mahmood Khan, respondent, in pay scale 17 was in the following order:--
(i) Raja Sultan Mahmood Khan;
(ii) Raja Muhammad Ayub Khan;
(iii) Mr. Muhammad Azad Khan, and
(iv) Mr. Muhammad Rafiq Tahir.
4. The Azad Jammu and Kashmir Council, decided on 22nd December, 1980 that 60% of the total posts of Income Tax Officers/Deputy Collectors, Excise and Taxation shall be senior scale posts. Its effect is that the concerned officer continues to hold the same post but is placed in higher scale. It may be observed here that section 9 of the Azad Jammu and Kashmir Council Civil Servants Act postulates promotion against a higher post but not against an equivalent post. Thus, civil servants who are granted senior scale do not stand promoted in the strict sense of the word but it is now generally described as a promotion to a higher grade.
5. For the purpose of selecting three Income Tax Officers for promotion to higher grade the Departmental Promotion Committee met on 20-3-1982. It approved the names of Raja. Sultan Mahmood Khan, Muhammad Azad Khan and Mr. Muhammad Rafique Tahir for promotion. The Committee recommended that Raja Muhammad Ayub Khan may be ignored on the ground that his annual confidential reports since 1977, except for the year 1981, were average and he had also earned unfavourable remarks. The Secretary of the AJ&K Council was of the view that recommendations of the Departmental Promotion Committee in respect of Raja Sultan Mahmood Khan and Mr. Muhammad Azad Khan may be accepted but the third post of BPS-18 be kept vacant and the case of Raja Muhammad Ayub Khan may be reconsidered after December, .1982. However, the Minister directed that a special report may be obtained in respect of Raja Muhammad Ayub Khan rather than waiting for his next A.C.R. Orders were accordingly issued on 29-3-1982 promoting Raja Sultan Mahmood Khan and Mr. MuhaMmad Azad Khan. No retrospective effect was ordered.
6. Another meeting of the Departmental Promotion Committee was held on 25-7-1983 to determine the question of promotion to the third posi which had been left vacant. This time names of Raja Muhammad Ayub Khan, Mr. Muhammad Rafiq Tahir and Mr. Muzaffar Ali Bhatti were brought under consideration. The Departmental Promotion Committee again by a majority vote, approved Mr. Muhammad Rafique Tahir for promotion and Raja Muhammad Ayub Khan was still not found fit for promotion. About Mr. Muzaffar Ali Bhatti it was found that he had not completed the prescribed length of service. The Secretary of the Azad Jammu and Kashmir Council did not accept or reject the recommendation of the Departmental Promotion Committee and ordered that the matter may be kept pending till the appointment of an Assistant Appellate Commissioner, a newly created post. The matter was kept pending for about 4 years and Departmental Promotion Committee again met on 5-8-1986. Meanwhile one of the Grade-18 Officers had been promoted as Assistant Appellate Commissioner. Thus, another post in Grade-18 became available. The names of Raja Muhammad Ayub Khan, Mr. Muhammad Rafique Tahir and Mr. Muzaffar Ali Bhatti were brought under consideration. Out of them Raja Muhammad Ayub Khan and Mr. Muhammad Rafique Tahir were found fit for promotion to Grade-18. It was recommended that Raja Muhammad Ayub Khan may be promoted from 1-1-1983 while the promotion of Mr. Muhammad Rafique Tahir may be given immediate effect. The basis for fixing 1-1-1983 as the date of promotion of Raja Muhammad Ayub Khan, as made out by the Committee, was that he had been deferred for six months in the meeting of the Departmental Promotion Committee held on 20-3-1982 and that a favourable report had been received in October, 1982. The recommendations were accepted and a notification was accordingly issued on 7-6-1988. Appeals were filed by Mr. Muhammad Rafique Tahir and Raja Muhammad Ayub Khan against the order. Mr. Muhammad Azad Khan apparently could not have been aggrieved by this order because his promotion had been ordered as far back as on 29-3- 1982. The appeal filed by him is against an order passed on 16-5-1990 on which date he was intimated that his request for being promoted with effect from 1-7-1981 was rejected. This request was made by Mr. Muhammad Azad Khan on 2-4-1990. In the Service Tribunal he filed an application that delay, if any, may be condoned.
7. Both the learned members who heard the appeals were of the opinion that the appeals filed by Mr. Muhammad Azad Khan and Raja Muhammad Ayub Khan be dismissed. There was also agreement on the point that the date of promotion of Mr. Muhammad Rafique Tahir may be favourably changed but there was difference of opinion about the date from which the promotion was to be given effect to. One learned member (Maj.-Gen. Cb. Abdul Rehman Khan) was of the view that the date should be 1-1-1983 while the other learned member (Mr. Rasheed-ud-Din Arshad) reached the conclusion that it should be 29-3-1982. The appeals were consequently laid before the learned Chairman of the Tribunal for resolving the difference of opinion. The learned Chairman Mr. Justice Syed Ally Madad Shah has agreed both Mr. Rasheedud-Din Arshad that the order may be made effective from 29-3-1982. This is the date on which Raja Sultan Mahmood Khan and Mr. Muhammad Azad Khan were promoted. It has already been noted that in the meeting of the Departmental Promotion Committee held on 20-3-1982 the Committee had approved the promotion of all three of them but the recommendation in respect of Mr. Muhammad Rafique Tahir was not acted upon by the Secretary, AJ&K Council.
8. Before examining the merits, we have to dispose of a technical point raised by Raja Muhammad Hanif Khan the learned counsel for the Secretary, AJ&K Council that the three appellants before us had not availed of the departmental remedies and their appeals before the Service Tribunal were liable to be dismissed on that short ground. He submitted that when the promotion of Mr. Muhammad Azad Khan was ordered on 29-3-1982 with immediate effect he did not file any review, representation or appeal to pray that his promotion should have been ordered from 1-7-1981 and, thus, could not have filed appeal against the order passed on 29-3-1982. He then pointed out that Raja Muhammad Ayub Khan and Mr. Muhammad Rafique Tahir filed review petitions against the order against which appeals were subsequently filed by them in the Service Tribunal but a review petition did not lie. He submitted that they should have filed departmental appeals against that order. This point was not raised in the Service Tribunal as is obvious from the fact that it does not find mention in the judgment of the Tribunal. It is settled and consistent practice of this Court that we do not allow a new A point to be raised for the first time in this Court unless it has been incorporated in the memorandum of appeal or the concise statement. Therefore, this objection cannot be brought under consideration and, thus, stands overruled.
9. We have heard elaborate arguments addressed by the learned counsel for the three contesting civil servants, the AJ&K Council as well as the learned counsel for Raja Sultan Mahmood Khan, who is only a pro forma respondent. Mr. Mansoor Ahmad Khan, who appeared for Raja Muhammad Ayub Khan, vehemently objected to the observations made in the judgment of the Service Tribunal that the approval to the promotion of Mr. Muhammad Rafique Tahir was withheld till 1988 by the competent Authority with mala fide intention to help Raja Muhammad Ayub Khan. He submitted that there was in fact no mala fide intention and in any case if an observation is made by a Court of law in respect of mala fide it must be based on solid facts and not on the basis of assumption as, according to the learned counsel, is the case in hand. He also contended that the allegation of mala fide must be specifically pleaded and legal proof must be adduced to prove it otherwise a finding regarding malice cannot be recorded. In support of this proposition he relied on Water and Power Development Authority v. Amjad Hidayat (1986 SCMR 582). This judgment supports the contention of the learned counsel, but we may observe that there is no such proposition involved in the present case. There is no observation in the judgment of the Service Tribunal that the competent Authority acted in a mala fide manner in not approving the promotion of Mr. Muhammad Rafique Tahir. In the judgment proposed by Maj.-Gen. Ch. Abdul Rehman Khan it has been noted with some detail that the learned counsel who appeared before the Tribunal on behalf of Mr. Muhammad Rafique Tahir contended that it clearly proved the mala fide of the Secretary of the AJ&K Council. However, there is no such observation on behalf of the learned Member who wrote the judgment. Maj.-Gen. Ch. Abdul Rehman did observe in para. 7 that: "This is an obvious case of nepotism in our view which brings frustration for those who are competent and efficient civil servants. The competent Authority is always expected to exercise its discretion judiciously because 'lawful discretion' is not a prerogative which is vested in autocrats and dictators only. This is our firm view that even-handed treatment ought to be meted out to all civil servants if efficient administration is the goal of the Government: In our opinion, it is a poor display of exercise of discretion to say the least. The competent Authority, in our opinion, in this case has acted beyond its jurisdiction."
10. The opening sentence of these observations is somewhat strongly-worded. Validity of these remarks depends on the facts of the case. If it appears that the record bears out the facts and the conclusion drawn therefrom then these observations may be justified. However, the fact of the matter is that since it is a case in which two learned members of the Tribunal differed the case was laid before the learned Chairman of the Tribunal and the opinion of the Chairman is the decision of the Tribunal. This is laid down in clause (b) of section 3-A(2) of the Azad Jammu and Kashmir Council Service Tribunals Act which is thus worded:--.
11. "(b) If the members are equally divided and the Chairman of the Tribunal is not himself a member of the Bench, the case shall be referred to the Chairman and the decision of the Tribunal shall be expressed in terms of the opinion of the Chairman Since the contention raised by the learned counsel does not relate to the judgment of the learned Chairman it fails.
12. Taking up his next argument, Mr. Mansoor Ahmad Khan contended that the Service Tribunal is not legally authorised to fix or change the date of a civil servant's proinotion. He submitted that a recommendation of the Departmental Promotion Committee is not of binding nature and no grievance can, therefore, be legally based on the fact that the competent Authority has ordered the promotion of a civil servant on a date different from, or inconsistent with, the recommendation of the Departmental Promotion Committee. The learned counsel relied on "S.M. Ghalib Haider v.
13. Chief Secretary to Government of Sindh (1985 PLC (C.S.) 754) in which Sindh Service Tribunal has expressed the view that mere recommendation of the Departmental Committee for Promotion does not create any right. The learned counsel also raised the point that under section 4 of the Service Tribunals Act no appeal lies against an order or decision of the Departmental Authority determining the fitness or otherwise of a person to be promoted to a higher grade. According to the learned counsel this provision gives strength to the argument that it is the decision of the competent Authority and not that of the departmental authority which creates rights. The learned counsel relied on Government of N.-W.F.P. v. Buner Khan (1985 SCMR 1158) in support of the contention that the Service Tribunal cannot fix the date of promotion. He also relied on A.W.
14. Khokhar v. Government of Punjab (1975 PLC (C.S.) 7). The learned counsel also contended in support of his appeal that there was nothing on the record to show that the appointment of Mr. Muhammad Rafique Tahir and Mr. Muhammad Azad Khan had been fixed by the Government in violation of any statutory provision nor any other factor was on the record furnishing the basis on which fixation of the date of their promotion may be invalidated or modified. It was strongly urged by the learned counsel that Raja Muhammad Ayub Khan should be given the benefit of promotion to the higher grade with effect from 1-7-1981.
15. Malik Muhammad Aslam Khan, the learned counsel for Mr. Muhammad Azad Khan, in support of claim that his client should have been promoted with effect from 1-7-1981 submitted that it is incorporated in the minutes of the meeting of the Departmental Promotion Committee held on 20- 3-1982 that in Pakistan 60% of the post of Income Tax Officers were upgraded as selection posts in 1960 but this decision was adopted for the Income Tax Department of AJ&K in 1980 and the posts were upgraded with effect from 1981. He submitted that this was no justification for keeping vacant the post thus created. According to him the chances of promotion in Income Tax Department of Azad Jammu and Kashmir are less as compared to the Income Tax Department of the Federal Government, therefore, benefit of higher grade should be given to the Income Tax Officers from the date when the posts were upgraded, if otherwise found fit. The learned counsel contended that Departmental Promotion Committee had recommended that promotions may be given effect from 1-7-1981 and there was no valid reason for not accepting that recommendation so far as it related to Mr. Muhammad Azad Khan.
16. The learned counsel for Mr. Muhammad Rafique Tahir, Ch. Muhammad Afzal Khan, vehemently contended that having accepted that the rights of his client had been adversely affected the Service Tribunal should not have ante-dated his promotion to 29-3-1982. He contended that the Departmental Promotion Committee in its meeting held on 20-3-1982 Mr. that the Tribunal itself could not direct the Government to promote them from a particular date. This legal aspect of the matter is not contested.
5. Accordingly, we convert these petitions into appeals and allow them to the extent that the direction of the Tribunal ' to promote' the respondents herein (promotees) is modified and is substituted by the direction that the promotees shall be considered for promotion to Grade-18 post with effect from the dates when vacancies in their quota became available and that thereafter a joint seniority list of the Officers directly recruited and those promoted shall be issued according to the rules. The appeals are disposed of in the above terms leaving the parties to bear their own costs."
17. A perusal of the paragraphs reproduced above as well as the report as a whole unmistakably shows that the point under our consideration did not fall for determination in the precedent case.
18. The respondents in the appeal had not been considered for the vacancies which had occurred.
19. The Service Tribunal found that they had a right to be considered for promotion at the stated time and ordered their promotion from the relevant time. The Supreme Court upheld the view that the concerned civil servants were entitled to be considered for promotion when the vacancies occurred but held that the Tribunal could not give direction to the Government to promote them with effect a particular date. The circumstances were that the Tribunal could not give direction to the Government to promote them with effect from a particular date. The circumstances were that the Tribunal had ordered the promotion of those who had not even been considered for promotion by the Selection Authority. There is no doubt that it is the competent Authority which has to decide about the suitability for promotion and not the Service Tribunal. In the judgment of the Supreme Court the emphasis is on the difference between the direction to "promote" and the direction that concerned person "be considered for promotion" and not on the date of promotion.
20. In our view the question whether the Service Tribunal can change the date of promotion can be resolved in light of the relevant law. While construing the powers of a Service Tribunal it must be kept in mind that the Service Tribunals Act creates a right in a civil servant to challenge an order in respect of terms and conditions of his service if he feels aggrieved by it. Section 49 of the Azad Jammu and Kashmir Interim Constitution Act lays down that terms and conditions of service of persons in the service of Azad Jammu and Kashmir may be regulated by law. In pursuance thereof Civil Servants Act has been enacted and it lays down the terms and conditions by which the civil servants are governed. The powers of the Government or other authorities which can pass orders in respect of terms and conditions of service have been clearly defined by Civil Servants Act and the rules made thereunder. Thus, all the matters relating to the civil servants are governed by law.
21. In this view of the matter the departmental authorities have no arbitrary or uncontrolled powers.
22. Whatever action or step a departmental authority has to take .in respect of terms and conditions of service of a civil servant it has to be taken in accordance with law. Another factor of far-reaching consequence is that these authorities have been made answerable to the Service Tribunal set up under law enacted in pursuance of section 47 of the AJ&K Interim Constitution Act, 1974. Before the enactment of the Service Tribunals Act and settin* up of the Service Tribunals civil servants felt greatly handicapped in seeking redress of even their genuine grievances. In that period a civil servant could file a civil suit or a writ petition. The scope of these legal remedies was limited as it was confined to correction of jurisdictional defects or illegalities. But now under the new concept, as postulated by section 47 mentioned above, Administrative Tribunals have been set up and have been given wide powers to redress the grievances of civil servants. The powers of this Tribunal are vastly different from a Court of law, be it is Civil Court hearing a civil suit or a High Court acting under the writ jurisdiction because these Courts could not vacate or modify an order competently passed by a functionary even if it was found to be wrong or unjust. On the other hand under section 4 of the Service Tribunals Act an appeal has been provided against orders of the departmental authorities. This appeal can be filed as of right. Section 5 of the aforementioned Act authorises the Tribunal to vary, set aside, or modify an order passed by a departmental authority, which term includes the Government/AJ&K Council. Conceptually where appeal lies against an order the authority making the order should base it on cogent reasons so that the appellate authority may be able to examine the reasons to find out if the order is sustainable. Therefore, these provisions indicate that the Service Tribunal enjoys all the powers which are vested in the departmental authorities. This is, of course, subject to certain exceptions. Where these powers are not intended to be made available to the Tribunal a specific provision has been made in the proviso to section 4 mentioned above. These exceptions plainly appear to be exhaustive and if an order is not covered by these provisions it is clearly appealable provided, of course, if it relates to terms and conditions of service of a civil servant. The Constitution Act or the Service Tribunals Act does not debar a Service Tribunal from modifying or varying the date from which a promotion has to take effect. It, therefore, follows that this power is vested in the aforesaid Tribunal. In what circumstances this can be exercised is a separate question in respect of which no hard and fast rule can be laid down. Exercise of this power would depend on the circumstances of each case. If a proper case is made out and the justice of the case so demands the Tribunal can exercise this power. However, there is an overriding factor which controls the exercise of powers by a Service Tribunal that an order can only be passed by it if it adversely affects the terms and conditions of service of a civil servant.
23. It is true that Departmental Promotion Committee is only a recommendatory body and the competent Authority is not bound to accept a recommendation made by it. There is no doubt about that. But it cannot be accepted as a correct proposition that such a recommendation does not have any legal value at all. It may not create a right in strict juristic sense but it cannot be denied that the recommendation of the Selection Committee has a peculiar role to play for the selection process. Power of the Government or the competent Authority to order the promotion of a civil servant to a post in higher grade, particularly in respect of selection posts, is dependent on the recommendation of the relevant Selection Board. Just as it is true that the recommendation is not binding, in the similar way it is also true that the competent Authority cannot act independently of the Selection Board. It, therefore, follows that the promotion to a selection grade, as the present case is, is the outcome of a joint exercise of the Selection Board and the competent Authority. We have already observed that arbitrariness has to be avoided. Thus, seen in the overall context it is clear that the correct legal position is that if the recommendation of the Departmental Promotion Committee has to be rejected, there must exist some reasons. These reasons should be such that the action based on them should become sustainable. Since the Service Tribunal sits in appeal it follows that the validity of the reasons can be gone into by the said Tribunal.
24. As the facts show Mr. Muhammad Rafique Tahir was found fit for promotion in the meeting held on 20-1-1982. This recommendation was not followed but it is significant to note that Secretary, AJ&K Council did not reject the recommendation. It is clear that there was nothing against him with the Secretary. No reasons have been brought on the record why his promotion was not ordered alongwith the other Income Tax Officers, namely, Raja Sultan Mahmood Khan and Mr. Muhammad Azad Khan. So far as the case of Raja Muhammad Ayub Khan is concerned he had not been found fit for promotion and it had been recommended by the Committee that he may be ignored.
25. However, the matter was deferred and a special report was obtained in respect of Raja Muhammad Ayub Khan. We are unable to see how the promotion to selection grade can be denied to a civil servant on the ground that while he himself is fit for promotion on a particular date but another civil servant who is under consideration and in direct competition with him does not possess the requisite merit. Selection post has to be filled up on the basis of merit alone which means that the best has to be selected. On 20-3-1982 Mr. Muhammad Rafique Tahir possessed the requisite merit while Raja Muhammad Ayub Khan did not. The fact that the former was not promoted shows that he was practically penalised for the fact that the latter had not earned good reports. The case was kept pending for many years till such time as the competent Authority was able to say that Raja Muhammad Ayub Khan was fit for promotion. It is in these circumstances that it was observed by Mr. Justice Ally Madad Shah, the learned Chairman of the Tribunal that:-- "Much has been commented upon that aspect of the case by the learned Member Maj.-Gen. Abdul Rehm-an Khan, HI (M) and even much more can be said in the light of the events the promotion of Mr. Muhammad Rafique Tahir was side-tracked for a number of years until Raja Muhammad Ayub Khan was promoted but there is no prayer for dislodging this ante-dated promotion, and it is in the context of those events that the learned members have considered the case of Mr. Muhammad Rafique Tahir for antedation of his promotion. It does appear from events referred to above that great injustice was meted out to the appellant Mr. Muhammad Rafique Tahir by denying him promotion although he was cleared at the meetings of the D.P.C. held on 20-3-1982 and 25-7-1983 and a clear post for promotion was available and he was again cleared for promotion third time on 5-8-1986 and yet Raja Muhammad Ayub Khan, who was not approved for promotion on two earlier occasions, was given promotion with retrospective effect, while the appellant was bestowed promotion from a data subsequent to his third time approval for promotion by the D.P.C.'
26. The Service Tribunal has antedated the promotion of Mr. Muhammad Rafique Tahir from 29-3-1982.
27. The Secretary, AJ&K Council has not been able to show as to why this officer was promoted from 7- 6-1988 while he was fit for promotion on the basis of his merit on 29-3-1982 when the other two officers were granted promotion to higher grade. If the Secretary had any valid reasons he might have rejected the recommendation but he did no such thing and it is clear that he did not have any such reason. In the order under appeal Raja Muhammad Ayub Khan was promoted from 1-1- 1983 while Mr. Muhammad Rafique Tahir from 7-6-1988. It means that one who should have been promted six years earlier has been promoted five years later then the other contesting civil servant.
28. It is, thus, obvious that where the terms and conditions of Mr. Muhammad Rafique Tahir have been adversely affected. In these circumstances the Service Tribunal had every justification to interfere in the matter and to antedate the promotion in such a way that the grievance of Mr. Muhammad Rafique Tahir has been redressed. We are of the view that it is an eminently fit case in which this power should have been exercised in view of the justice of the case. The antedation to 7-6-1982 is sound because on that date Mr. Muhammad Rafique Tahir was fit for promotion and order in his favour had been withheld without any justification whatsoever. We, therefore, affirm the observations of the learned Chairman reproduced above as well as his conclusion.
29. Now we take up the appeal of Raja Muhammad Ayub Khan. By now enough has been observed as to how events went by in this context. We have already observed that Raja Muhammad Ayub Khan was not approved for promotion by the Departmental Promotion Committee in the meetings held on 20-3-1982 and 25-7-1983. In both the recommendations of these meetings it was clearly recommended that Mr. Muhammad Rafique Tahir rather than Raja Muhammad Ayub Khan may be promoted but those recommendations were not acted upon. Subsequently, Raja Muhammad Ayub Khan was promoted from 1-1-1983. On this date there was no recommendation of Departmental Promotion Committee in his favour. In fact in the meeting held on 25-7-1983 he was not approved for promotion. Thus, it practically means that he now stands promoted from a date when there was no recommendation for his promotion. In the judgment under appeal it has been noted that no prayer was made for dislodging the date of Raja Muhammad Ayub Khan's promotion. Therefore, it has attained finality. However, the facts clearly show that sufficient indulgence has already been shown to him by the competent Authority. Therefore, his prayer for further antedating his promotion is without any substance.
30. Appellants Mr. Muhammad Rafique Tahir and Mr. Muhammad Azad Khan have prayed in their appeals that their promotion may be given effect from 1-7-1981. It is contended on their behalf that the Departmental Promotion Committee had recommended in its meeting held on 20-3-1982 that Raja Sultan Mahmood Khan, Mr. Muhammad Azad Khan and Mr. Muhammad Rafique Tahir may be promoted from the aforesaid date. The significance of this date is that three selection grade posts stood created on that date while promotion against those posts have taken effect from 29-3-1982.
31. In short their contention is that these posts were available and should not have been left unfilled.
32. We have already held above that the date of promotion can be changed by the Service Tribunal but it can be done if a case is made out that the terms and conditions of service are involved in the fixation of date. In so far as the date 1-7-1981 is concerned this principle is not applicable. Service rights of the appellants are not affected if the date is not changed on 1-7-1981. It was in the discretion of the competent Authority to fill up these posts from an appropriate time and it exercised its discretion by giving it no retrospective effect. Nothing has been brought to our notice that this discretion was not properly exercised. The fact that the posts remained vacant from 1-7- 1981 to 29-3-1982 does not furnish a good ground for which this Court should interfere. Even otherwise, if the prayer is accepted it would adversely affect the rights of Raja Sultan Mahmood Khan who stands promoted with effect from 29-3-1982 but has not appealed for ante-dating his promotion. If the two appellants are promoted from a prior date it would be unjust to him.
33. So far as Mr. Muhammad Azad Khan is concerned there is another reason which creates an obstacle. His promotion to higher grade was ordered on 29-3-1982 but he did not file any appeal or representation for many years.
34. He represented against this order some eight years later on 14-4-1990. He stated in his representation that the Departmental Promotion Committee had recommended his promotion as well as the promotion of Raja Sultan Mahmood Khan with effect from 1-7-1981 but this recommendation was strictly confidential and could not come to his knowledge at that time.
35. During the pendency of the appeals filed by Raja Muhammad Ayub Khan and Mr. Muhammad Rafique Tahir in the Service Tribunal, to which he was a party, the record of the Departmental Promotion Committee was requisitioned and its contents become known. It was thereupon that he filed representation. We are clearly of the view that this procedure is not covered by the law. The order of promotion of Mr. Muhammad Azad Khan was issued on 29-3-1982 and it was given immediate effect. If he was not satisfied with the date which was fixed by that order as the date of his promotion, he should have immediately appealed or represented within prescribed time but he did not do so nor did he approach the Service Tribunal by filing an appeal. The mere fact that he came to know that departmental committee had recommended a different date did not give a fresh cause of action to Mr. Muhammad Azad Khan to file a representation. Filing of a representation does not give a fresh cause of action, once the matter has become barred by time.
36. In the light of what has been stated above no substance is found in any of the appeals. All the three appeals are, therefore, dismissed.