1. ' CH. MUHAMMAD ARIF, J.---The relevant facts, leading to this appeal by leave of the Court find a detailed mention in paras. 2 and 3 of the Leave Grant Order, dated 26-6-1993, which read thus:-- "2. The facts of the case are that the petitioner was appointed as Inspector of Income Tax on 30-4- 1966. He was promoted as Assistant Income Tax Officer (B-16) on 18-1-1973. He was appointed as Income Tax Officer on 13-8-1986 on acting charge basis. The regular promotion of the petitioner as Income Tax Officer was made on 26-5-1988. According to the petitioner, the gradation list of Income Tax Group was circulated on 22-2-1988. In this list, the name of the petitioners did not appear. On scrutiny of the list, he found that the quota for direct recruits and promotees has been fixed in the ratio of 75: 25 and this quota had not been observed. The petitioner made a representation with a request that his regular promotion be considered with effect from 13-8-1986.
2. His representation was rejected. The petitioner filed an appeal before the Service Tribunal. The appeal was heard by a Bench of two members, namely, Ch. Hasan Nawaz and Mr. Misbah Ullah Khan Mr. Misbah Ullah Khan accepted the appeal. The other learned member Ch. Hassan Nawaz directed for rehearing of the appeal. The matter was reheard by another Bench consisting of Mr. S.M. Ishaq and Rana Rifat Saeed. Both the learned members dismissed the appeal on the ground that the departmental representation as well as the appeal before the Service Tribunal were barred by time and that the claim of the appellant in the representation and in appeal was contradictory as in his prayer he claimed promotion/seniority with effect from 27-10-1980 whereas at the time of appeal, he requested for promotion/seniority with effect from 1 6-2-1986.
3. "3. The learned counsel for the petitioner submits that the petitioner is entitled to be considered against a vacancy which occurred in the departmental quota with effect from the date when such vacancy in their quota became available (1985 SCM R 1158). He further states that acting charge appointment does not debar consideration for regular promotion from the date the acting charge promotion was given particularly when the vacancy did occur. Reliance has been placed on Aslam Warraich v. Secretary, Planning and Development Division (1991 SCM R 2330) and Globe Textile Mills (O.E.) v. Textile Commissioner (1993 SCM R 900).
4. ' Leave to appeal is granted."
2. Appellant's Service Appeal bearing Old Appeal No.156(L) of 1989 New Appeal No.405(R) of 1990 was dismissed after holding (in para. 11 thereof) that the following conclusions are established:-- "(i) That in the prayer, the appellant has claimed his regular promotion/seniority w.e.f. 27-10-1980, whereas he made no departmental representation in time and appeal to be FST. Further at bar he has stressed/requested for his promotion w.e.f. 16-3-1986 (and not w.e.f. 27-10-1980), but departmental representation was made by him on 29-9-1988 and departmental appeal on 7-3- 1989. As such both the departmental representation and appeal and the instant appeal to the FST, dated 16-9-1990 are hopelessly time-barred.
5. That the appellant in his prayer has claimed promotion/seniority w.e.f. 27-10-1980, whereas at bar he has stressed/'requested for promotion/ seniority w.e.f. 16-3-1986. As such his claims in the prayer and in his representation are contradictory and do not reconcile with each other.
6. Therefore, his appeal and representations are misconceived, inconsistent, invalid and incompetent.
7. That the appeal is bad for joinder of necessary respondents/parties i.e. some necessary parties have not been impleaded.
8. That although the appellant had been appointed on acting charge basis as an ITO (B-17) w.e.f. 13- 8-1986, but this appointment was against a direct vacancy and he had been promoted' on regular basis as an ITO (B-17) w.e.f. 26-5-1988, when regular promotion vacancy of ITO for him/to meet his seniority number had become available. As such his claim for promotion/seniority w.e.f. 16-8-1986 was ultra vires, not sustainable, misconceived, invalid and incompetent.
9. ' It appears that conclusions Nos.(i) and (ii) above relate to his departmental representation and appeal as also appeal, dated 16-9-1990 before the Federal Service Tribunal being beyond time.
10. Mr. Shah Abdur Rashid, learned counsel appearing in support of the appeal has criticised the treatment meted out to appellant's representation and appeal, before the departmental authorities as also his Memo. of Appeal before the Service Tribunal that all were beyond time.
11. According to him, it is established on the record that his client came to know about the issuance of Gradation List of Income Tax Department in which his name was not included, on 29-9-1988. He made departmental representation on the same day claiming seniority with effect from 13-8-1986 instead of 26-5-1988. The Regional Commissioner dismissed appellant's representation on 1-11- 1988, copy whereof was endorsed to him on 22-12-1988 but was received only on 22-2-1989. The appellant submitted another appeal to the Secretary Establishment on 7-3-1989 to which no reply was received and he was driven to making the appeal before the Service Tribunal on 2nd July, 1989.
12. The precise plea was that the appellant resorted to the available remedies under the law, with promptitude.
13. Mr. Shah Abur Rashid, learned counsel for the appellant next contended that even conclusion No.
(iii) above could not stand in the way of his client receiving what was his entitlement under the law.
14. The impugned judgment has proceeded on technicalities both in relation to conclusions Nos.(i) and (ii) above as also conclusion No.(iii) above. He has relied upon M/s. Globe Textile Mills (O.E.)
15. Limited, Karachi v. Textile Commissioner, Ministry of Industries, Government of Pakistan, Karachi and 2 others (1993 SCM R 900) in support of case of the appellant in that regard. As regards conclusion No.(iv) above, it is contended that the learned Service Tribunal was in error in not following the law declared by this Court in Aslam Warraich and others v. Secretary, Planning and Development Division and 2 others (1991 SCM R 2330) holding that a person, duly qualified, if given acting charge appointment, he could claim consideration for regualr promotion an seniority from the date of his acting charge appointment if, on that date, he is duly qualified.
16. Towards the end of his arguments, the learned counsel for the appellant made a reference to Government of N.-W.F.P. and others v. Suner Khan and others (1985 SCM R 1158) to contend that his client was entitled to consideration of his case for promotion against the quota for the promotees on the relevant date. The precise plea was that had any effort been made to pinpoint a particular date on which vacancies in the promotees quota were available and had all concerned been heard in that regard, the decision by the learned Tribunal would have been different.
17. Mr. Maulvi Anwar-ul-Haq, Deputy Attorney-General for Pakistan, tried to controvert the arguments of the learned counsel for the appellant but was not in a position to state that any effort was made by the learned counsel to find out whether there were any vacancies in the promotees' quota on the relevant date/s or not?
18. We find that the appellant has impleaded as many as 183 private-respondents in this appeal but they are not represented at this stage. The perusal of the available material does indicate that the main question in the cause was inextricably linked with availability or otherwise of vacancies in the promotees' quota with a view to resolving the controversy of the entitlement of the appellant to claim his promotion thereagainst from the relevant date/s. The Service Tribunal could issue appropriate process to the appellant as also all or any one of the private-respondents impleaded here, after obtaining requisite information from the appellant and/or the official respondents. This can be done by the Tribunal even now.
19. The above are the reasons for our order of even date, which reads thus:-- "For reasons to be recorded later, the case is remanded to the Federal Service Tribunal, Islamabad with the direction to decide the matter on merits after allowing both the parties to place further material on the question as to whether there were vacancies in the promotees' quota on the relevant dates."