' MUHAMMAD RAZA KHAN (MEMBER).--The facts of the present case, in brief, are that the appellant had participated in the Competitive Examination held by the Federal Public Service Commission in 1986. Vide a decision dated 26-11-1986, he was allocated the Accounts Group and consequently he joined the Academy for training in January, 1987. During the course of training, a notice was issued disclosing the change of certain trainees to various other Groups and accordingly the Group of the appellant was changed from Accounts to the Railway Commerce and Transport Group. He accordingly filed a representation stating therein that in accordance with the result of the examination, he was entitled to be accommodated for a better choice and his placement in the Accounts Group was not justified but its change into Railway Commerce and Transport Group was not at all justified. The appellant requested for the allocation of Group on the basis of merit as per the priorities mentioned by him in the application form. This representation was accepted on 22-5- 1990 and his Group was changed by the order of the competent. Authority to the Income Tax Group. An offer of appointment was issued on 14-7-1990 and thus, he joined the said group by suffering the loss of seniority in the Accounts Group and so he had to undergo fresh training of the Income Tax Group. However, vide another order dated '4-2-1991, he was ordered to revert to his "original Group i,e, Railway Group". This order was allegedly passed without any justification or notice and in violation of principle of natural justice. The appellant filed a Constitutional Petition No, 186 of 1991 which was later on withdrawn on 2-9-1991 on the apprehension of dismissal of the petition on the point of jurisdiction under Article 212 of the Constitution. Thereafter, a Service Appeal No, 88(K) of 1991 was filed but the same was dismissed vide judgment dated 2-10-1993, primarily on the ground of maintainability as the appellant had not exhausted the departmental remedy.
Allegedly, the appellant filed a representation within 15 days of the said order of dismissal dated 2- 10-1993. This representation remained pending with the department and finally vide order dated 26-12-1996, the same has been rejected and vide a second order dated 28-12-1996, the appellant was directed to report to the Railway Department. By way of the present appeal, the appellant has challenged the said appellate order dated 26-12-1996 read with the original order dated 4-2-1991 on the grounds that firstly the earlier order dated 14-7-1990 has been acted upon and it could not be withdrawn after its implementation. Secondly that the appellant has lost his seniority earned in the Accounts Group and cannot be subjected to any other ss of seniority for almost ten years.
Thirdly that the appellant had undergone the necessary training required for the Income Tax Group and had satisfactorily been performing the functions in the said service for a considerable long period and so his reversion/change of Group to the Railway Commerce and Transport Group will require fresh training, loss of seniority and loss of experience as well. Fourthly, that the appellant has been promoted on 22-10-1995 to the post of Deputy Commissioner of Income Tax (B-18) and as a result of change of Group, he would have to join the new Group in the Basic Scale B-17 being junior most in the Academy which is neither justified by the law nor by the facts. During the course of arguments, the learned counsel for the appellant had further stated that the order dated 26-12- 1996 was passed by the Care-taker Government who were not legally empowered to pass orders of a permanent nature affecting the terms and conditions of service of the civil servants.
2. The respondents have contested the appeal on merits as well as on legal grounds. The objections with regard to limitation and res judicata were the main primary objections. We have listened to the arguments of the learned-counsel for the parties.
3. Prior to the embarking upon the determination of case on merits, it would be appropriate if the technical objections are dealt with first. The contention of the respondents is that the original order dated 4-2-1991 could not be challenged by a service appeal filed on 25-1-1997 i,e, after six, years whereas the law prescribes a total period of 120 days for the filing of service appeal. The perusal of the record shows that this objection was not valid mainly for the fault on the part of the respondents themselves. The original order was passed on 4-2-1991 and the appellant challenged the same in the Constitutional petition. This petition was withdrawn on 2-9-1991 and the respondents did not challenge this order by an appropriate remedy. Subsequently, the appellant filed Service Appeal No,88 (K) of 1991 which was also barred by time but his application for condonation of delay was accepted and the period spent in the High Court was excluded from the computation of time. The respondent-Department could have challenged this order on condonation by way of appropriate remedy which was not done. Therefore, any delay till 1993 stood condoned which attained finality. The appellant filed a departmental appeal/representation/review without containing any date. It was stated to have been filed within 15 days after 2-10-1993. The Appellate Authority had all the powers to have rejected the representation on the ground of limitation. A departmental appeal can be filed within 30 days of the original impugned order. Any representation filed in October, 1993 against the order dated 4-2- 1991 was certainly barred by, time but the competent Authority did not care to reject the departmental appeal on the ground of limitation and consequently on the basis of a verdict of the Supreme Court, the respondent-department is deemed to have condoned the delay and so the issue of limitation cannot be raised at this stage. Prior to the latest view of 1995, it was held by the apex Court that any service appeal filed on the basis of a belated representation would not be competent. However, this view was modified and it was held that if the department does not reject the representation on the point of limitation, it cannot raise the issue of limitation thereafter. Thus, based on the said judgment we have to hold that the departmental appeal was decided on merits and so the department was estopped to raise that issue of limitation now.
4.Before touching the next preliminary objection, we also point out that the department and the learned standing counsel is always very prompt in contesting the service appeals by raising technical objections particularly the objection of limitation but we cannot help commenting on the attitude of the various departments whereby they delay a simple matter for several years and by their inaction in time, the situation becomes irreversible. The respondents agitate the issue of limitation while contesting the appeals but, as stated earlier, they did not reject the appeal on this account nor taken any action with regard to implementation of the order dated 4-2-1991 for almost three years i,e, from 2-10-1993 to 26-12-1996. In this period of more than three years, several eventualities have occurred including the promotion of the appellant in the Income Tax Group and the accrual of the right of seniority to so many civil servants in the Railway Group and the reversal of the entire process will result in multiplicity of litigation. The departmental appeal should either have been decided within weeks in 1993 and that too on the ground of limitation, if the department was really interested in its case.
5.The next main objection against the appeal was regarding the question of res judicata on the ground that the same cause of action was the subject-matter of litigation in earlier Appeal No, 88
(K) of 1991 and hence the same matter cannot be agitated as per provision contained in section 11 of the Code of Civil Procedure. The record shows that this argument is also devoid of force. The earlier appeal had challenged the original order dated B 4-2-1991 and it was not decided on merits, rather it was dismissed on the legal ground of maintainability to exhaust the departmental remedy. The present appeal is primarily based on the new cause of action i,e, the appellate order dated 26-12-1996. Since the present appeal had new ground and was in compliance with the spirit of the earlier judgment by removing the legal infirmity and the earlier case was not disposed of on merits, therefore, the ingredients required to attract the principle of res judicata are not available and so this appeal is maintainable.
6. On merits, we hold that the appellant had filed a representation for the change of Group to which he was legally entitled which was accepted in 1990 and he was allowed to change the Group. This order has been complied with immediately and the appellant had completed the training and performed the functions satisfactorily. In the meanwhile, the appellant has also been promoted to the next grade and now it will be too late to order the reversal of the entire process and to repatriate the appellant to a Group where he did not perform functions for a single day. Such department or group cannot be considered to be the original or parent Group and, therefore, the question of C repatriation does not arise. Valuable rights have accrued to the appellant during the past more than six years and these rights cannot be withdrawn to the prejudice of the appellant without any fault on his part. Several other cases have also been decided by this Tribunal on these lines without any adverse order from the Appellate Court. Thus, we rely on the said precedent as well.
7. Consequently, we accept this appeal, set aside the impugned orders dated 4-2-1991 and 26-12- 1996 and the resultant letter dated 28-12-1996 and direct that the appellant may be allowed to work in his own pay, scale and post in the Income Tax Group. No order is made for costs.
(Sd.)
' Muhammad Raza Khan, Member.
ABDUL RAZZAQ A. THAHIM (CHAIRMAN.)---I agree with the proposed judgment of my learned brother Mr. Muhammad Raza Khan, Member. I would like to add that in view of judgment of the Supreme Court reported in 1995 SCM R 950 (Anwar Muhammad v. General Manager, Pakistan Railways) wherein it has been held that when the departmental appeal is not rejected on the point of limitation but on merit, the Tribunal cannot dismiss the appeal on the point of limitation. This is a case where in 1993, as rightly observed by my learned brother, that service appeal of the appellant was dismissed by the Tribunal on the ground that appellant had not exhausted departmental remedy of appeal which was mandatory requirement of law. After dismissal of his Service Appeal No,88(K) of 1991, the appellant did not go to the Supreme Court but chose to make a departmental representation within 15 days against the order passed on 4-2-1991 to the Prime Minister and in spite of the fact that his representation was hopelessly time-barred, it was entertained and rejected on merit vide letter, dated 26th December, 1996, therefore, in view of the above-cited reported case, this appeal before the tribunal is competent. In pursuance of this decision, the appellant is to go back to his original group in Railway and the Ministry of Railways was to issue his posting order. It is a matter of record that the appellant factually was not reverted to his original Railway Group up to 1993, because of stay orders, and even after the judgment of the Tribunal, he remained in the Accounts Group for almost three years from 2-10-1993 to 26-12-1996 without any stay. Not only this, but he was also promoted in BPS-18 on regular basis as Deputy Commissioner of Income Tax vide notification, dated 22nd October, 1995 when the representation of the appellant was pending in the Establishment Division and there was no stay. The representation has been decided in 1996 after his being promoted to BPS-18 in Income Tax Group. As such, the principle of locus poenitentiae is attracted in this case, as the appellant having worked for mote that six years in Income Tax Group where he was also promoted to B-18, we feel that he cannot be asked to go back to a BPS-17 post in Railway Group and undergo the process of requisite training after training.
It may also be observed that in identical Appeals Nos,76 and 77 (K) of 1991 filed by Mr. Mushtaq Ahmed Sheikh and Dr. Fazlullah Pechuho, which were heard and decided alongwith Appeal No, 88
(K) of 1991 filed by the appellant relief was given in those appeals and no appeal was filed in the Supreme Court against the judgment of this Tribunal. So, on merits, the case of the appellant is identical to those appellants who are continuing in the changed groups. I am, therefore, in full agreement with the findings recorded by my brother Mr. Muhammad Raza Khan. I also allow the appeal.
(Sd.)
' Abdul Razzaq A. Thahim, Chairman.