MUHAMMAD AYUB KHAN (MEMBER).---This case has got a chequered long history and for correct appreciation of merits of the appeal it is considered just, proper and advisable to give a brief reference to the background giving rise to filing of the present appeal and to start with the appellant joined the Agricultural Development Bank of Pakistan as Recovery Agent on 28-3-1975 in Pay Scale of Rs,180-10-230-EB-10-280-15-370. However, this post was redesigned as Recovery Assistant by circular No,77/75 dated 29-4-1975. It is further laid down at para.1 of the appeal that the post of Recovery Agent was created in the scale of former defunct Junior Assistant vide Circular Admin. C.15(35)/74, dated 7-5-1974 but the post of Junior Assistant was abolished and instead a new post of Assistant was created in the scale of Rs,180-10-230-EB-10-280-15370, by Circular No,11/74, dated 21-5-1974 and as such all the existing posts of Junior Assistants were redesigned as "Assistant" and the posts of Recovery Assistants were also placed in the same pay scale of Rs,180-10-230-15-370 already allowed and admissible to the newly created post of Assistant by Circular No, 26/74, dated 27-8-1974.
2. It is further alleged that simultaneously a new post of Diarist was also created in the Pay Scale of Rs,125-3-140-4-200 by Circular dated 21-5-1974. However, later on, the post of Assistant (former Junior Assistant) was redesigned as Senior Clerk vide Circular No,9/75, dated 13-6-1975 and the post of Diarist was redesigned as Clerk by Circular No,28/75, dated 23-12-1975. The matter did not end here and by Circular No,48/78, dated 26-7-1978 the posts of senior clerk (former Junior Assistant) and Clerk (former Diarist) were redesignated as "Senior Assistants" and "Assistants" respectively. The post of Recovery Assistant was also redesignated as Senior Assistant by the same circular pursuant to the orders of the Wage Commission award and due to this legal situation of redesignation of Recovery Assistants as Senior Assistants the Management/Respondents were required to publish a Unified Seniority List, inclusive of the post of Senior Clerk and Recovery Assistant but the Bank Management/Respondents did not implement the orders of Wage Commission Award with mala fide intention which act is punishable under section 54 of the Industrial Relations Ordinance, 1969.
3. It is also alleged at Para.5 of the appeal that quite contrary to the decision of the Wage Commission Award taken in 1978, the Respondent Management interpolated an additional paragraph in para. 24:2 of the Personnel Manual during the course of amendment in 1983 without any lawful authority, and thus, the posts of Recovery Assistants were merged with "Assistants" instead of "Senior Assistants" which tantamount to reduction/downgrading of the post of Recovery Assistants which could only be done as a punishment whereas no such punishment was earned legally by the incumbents of the post of Senior Assistants. This action on the part of the respondent Bank has also been dubbed as violate of P.D. Circular No,8/82, dated 15-5-1982 which is the only source of amendment in para. 24:2 of the said Personnel Manual.
4. It is also alleged that contrary to the decision/direction of the Wage Commission Award regarding integration of different cadres, the "Recovery Assistants" and "Assistants" (former Junior Assistants) were though treated at par by appointment in the same Scale of Pay yet they were not given equal status as directed by the Wage Commission Award despite the fact that Recovery Assistants and Assistants (former Diarists) were required to be designated as Senior Assistants for the reason that Recovery Assistants were appointed in higher pay Scale i,e, Rs,180-10-230-EB-10- 280-15-370 than the Assistants (former Diarists) who were in Pay Scale of Rs,125-3-140-4-200. The appellant feeling aggrieved, being his terms and conditions adversely affected, continuously availed legal remedies in connection with redressal of his grievance and the last attempt made by him in the series was in 12-2-1997 which request was rejected on 27-2-1997 against which he filed a departmental appeal on 5-5-1997 which too was rejected on 4-6-1997. Not satisfied with the filing of the said representation/appeal he still preferred another review appeal on 17-9-1997 which was also rejected by the competent Authority on 21-10-1997 and thereafter, he approached this Tribunal by way of the present service appeal on 14-11-1997 under section 4 of the Service Tribunals Act, 1973.
5. From a perusal of the legal remedies availed by way of departmental appeal and review appeal one fact stands crystal clear and proved that the appellant's departmental appeal as well as review appeal were not decided on point of limitation despite the departmental appeal dated 5-5- 1997 is most legal and having substance therein but it did not find favour with the competent Authority.
6. In this respect the learned counsel for the appellant has stated at the Bar that according to the dictums of the Courts, departmental appeal/review petition when not rejected on point of limitation, it is presumed that the competent Authority has condoned the delay and that on the legal aspect of an appeal no adverse inference can be drawn and placed reliance on the case reported as PLJ 1996 Tr. C. (Services) 476 (FST, Islamabad) wherein despite point of limitation the appeal was held to be within time and hence accepted. It has been held in another case contained in 1999 MLD 187 that question of limitation is against the principle of natural justice and fair-play whereby vested right of a civil servant is violated killed. Still in another case contained in 1995 PLC
(CS) 803 the Honourable Supreme Court of Pakistan has been pleased to hold while setting aside the judgment of this Tribunal dated 1-9-1991. that as the departmental authority had not dismissed the appeal before it on point of limitation, as such the Service Tribunal was also not competent to dismiss the appeal on point of limitation and in view of this legal situation the petition for leave to appeal was accepted and resultantly the case was remanded to this Tribunal for decision on merits, The point of limitation was accordingly decided in favour of the appellant. The concluding para.4 of this judgment is reproduced hereunder for ready reference:-- "4. Since the representation dated 15-5-1984 was incompetent and so also the order passed thereon by the Divisional Superintendent, it was open to the General Manager to have dismissed the appellant's above representation dated 4-1-1991 on the ground of limitation but since no objection was raised in respect of the limitation and the same was decided on merits, the General Manager in fact impliedly condoned the delay. In this view of the matter; the Tribunal should have decided the appellant's service appeal on merits. We would, therefore, allow the above appeal with no order as to costs and would remand the case to the Tribunal to decide the above service appeal on merits after notice to the parties."
7. In view of the aforesaid discussion and in light of the authorities mentioned therein we have condoned the delay, if any, in filing the appeal specially when . the departmental appeal and review appeal have not been rejected by the departmental authority on point of limitation.
8. A perusal of PD Circular No,8/82 dated 15-5-1982 indicates that: "In order to ensure maximum flexibility for utilization of various employees on suitable jobs, it has been decided that except for the specialized cadre, of Computer, all the other cadres in the Bank shall stand integrated with immediate effect and for purposes of promotion to higher post integrated seniority lists for each grade are prepared and circulated. ...In furtherance to this policy the seniority of Recovery Assistants as on 31-12-1982 stands merged with that of Assistants on regional basis with reference to their appointment in the grade without disturbing their inter see seniority in these separate cadres
9. It was also stated at the Bar by the learned counsel for the appellant that the respondents were incompetent to change the orders of the Wage Commission Award as it had adversely affected interest of 70 incumbents and which also goes against integration policy of the cadres.
10. The learned counsel for the respondents was not ready to argue the case for the obvious reason that she felt amendment of the words "Senior Assistants" occurring in Annexure-"A" at page-56 of the file which according to her was used the indicated "inadvertently." The words "Senior Assistants" should have been "Recovery Assistants" but we are afraid the respondents carinot be allowed at this belated stage to carry out amendment in the documents specially when the cat is out of bag and the case is ripe for pronouncement and recording the judgment.
11.Pursuant to the aforesaid discussion, we accept the appeal, inclusive of its prayer, with all consequential back benefits, leaving the parties to bear their own costs. All concerned may be informed accordingly.