1. ' NOOR MUHAMMAD MAGSI (MEMBER).---The appellant, Syed Abdul Qayyum, was working in Pakistan Railways as Foreman Grade-II, in 1987 when he was posted as Assistant Works Manager in his own Pay Scale. The initial appointment as Foreman was in B-16, whereas he was posted against the post carrying B-17 but he was not allowed consequential benefits of salary. He continued to work against the said higher post with occasional applications and representations to various authorities. In 1991, however, the appellant was promoted on .Acting charge basis to the post of Assistant Mechanical Engineer (B-17) and, thereafter, vide Notification, dated 17-12-1996, he was regularly promoted in the cadre of Open Line Loco Maintenance of Transportation with effect from 12-12-1996. He, for the first time agitated the issue vide departmental representation, dated 11-1- 1997 asking for the grant of monetary benefits in B-17 and 18 with effect from the date such benefits have become due. Failing to get any response to the said representation, the present appeal has been filed on 22-4-1997.
2. We have listened to the arguments on behalf of the appellant at the preliminary stage of hearing particularly on the point of limitation. The cause of action accrued to the appellant in 1987 when he was ordered to shoulder the responsibility of higher post while getting the financial benefits of lower one. He did not agitate the issue in time. Although, a belated application was moved in 1988 but legal steps were not taken by him and service appeal was not filed under the law. Frequent subsequent applications are not permissible under the law nor do they create fresh cause of action for extension of period of limitation. The traditional arrangement of working against the higher post in his own Pay Scale came to an end in 1992 when the appellant was promoted to B-17, although on acting charge basis. This was the latest opportunity for the appellant to have filed the service appeal for the grant of pay of the post against which he had been working for almost 5 years. He did not seek any legal remedy in 1992 as well and continued to work against the post on acting charge basis. To agitate the entire issue of demanding the pay of the post with effect from 1987 and further move-over in 1991 after the lapse of almost 10 years from the previous or original cause of action is a bit too late. The period of limitation has been prescribed by the statutes in number of days and not in months, whereas in this case an entire decade has passed without any agitation in accordance with law. Thus we hold that the present appeal is barred by time. The learned counsel for the appellant referred to a case law reported in 1994 PLC (C.S.) 411 to state that period of limitation will not run, and civil servant will not be deprived of his financial benefits, only on the ground that the original notification of placing the person in a higher grade in his own pay scale has not been challenged departmentally. The said case is distinguishable with the present one. In the present case the departmental remedy was sought in 1988 but on failure to get any response the appellant did not seek the legal remedy of filing service appeal before this Tribunal within 120 days thereof. Moreover, in the said case the period of working against the higher post was still continued and, therefore, the cause of action was recurring every month whereas in the instant case the said transitional arrangements came to an end in 1992 and the appellant was promoted on acting charge basis to the higher post. It is a fact that the orders contained the phrases like "in his own pay", "without financial benefits" etc. Are clear violation of the unambiguous provisions of law contained under section 17 of the Civil Servants Act, 1973 but the law of limitation had in its own course as remedy sought within time can be granted but after the expiry of prescribed statutory period, the right, though valuable, becomes unenforceable. The appellant has asked for two remedies, firstly for grant of B-17 with effect from 1987 when he was posted against the higher post and secondly, as demanded by him, for his placing in B-18 with effect from 1991 when he could be entitled to move-over had he been placed in B-17 with effect from 1987. Although there are distinct provisions relating to the grant of move-over yet had the appellant been actually approached to be . Promoted in B-17 prior to 1991, he might have succeeded in getting the move over to the next grade after due fixation and earning increments with the 'previous one. However, placement against the higher post and grant of pay of the post does not entitle the person to the benefits of annual increments and, therefore, the appellant could not be entitled to the supposed move-over in B-18 with effect from 1991. With these observations the present appeal appears to be incompetent and time-barred which is dismissed in limine.
2. ' ABDUL RAZZAQ A. THAHIM, CHAIRMAN.---I agree with the proposed judgment initiated by my learned brother Mr. Noor Muhammad Magsi, Member that the appeal is hopelessly time-barred and incompetent. However, I would also like to deal with the point of limitation in details, as it was argued by the learned counsel for the appellant that against a void order and m financial matter, limitation does not rim. Such a question had been examined and adjudicated by the Hon'ble Supreme Court in the case reported in 1994 SCM R 1033 (Muhammad Arshad Saeed, D.I.-G. Police v.
3. Government of Pakistan). The relevant paragraph of the judgment for the purpose of this appeal is reproduced herein below:-- "The concept of delay, laches or inaction has an altogether different qualitative content in matters other than service cases. In service matters, the importance of prompt action was examined in the context of a Constitutional petition and mandamus in the case of the Chairman, District Screening Committee, Lahore and another v. Sharif Ahmad Hashmi (PLD 1976 SC 258). The principle of promptness in bringing service grievances before the Courts of equity was given a statutory form in the Service Tribunals Act where while the departmental appeal itself was pending decision, a right was conferred for preferring an appeal to the Service Tribunal. The time prescribed was short.
4. The rules made it possible for a dissatisfied civil servant to even file his appeal by post. All these factors pointed to a strict application of the period of limitation prescribed under the law.
(7) As regards the order of appointment being void and the avoidance of period of limitation, the same reported case was reconsidered as Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another (1978 SCM R 367). Even assuming the voidness of the order the bar of limitation could not be avoided in the case of the appellant as there was no satisfactory explanation for it and the equities were against it. Hence, the decision of the Service Tribunal does not call for interference in this appeal (Civil Appeal No,446 of 1990) and maintained."
5. ' Such a question was further examined by the Hon'ble Supreme Court in Civil Petition for Leave to Appeal No,151-K of 1994 filed by Muhammad Tajul Haq v. Government of Pakistan and another, decided on 5th June, 1994 against the judgment of this Tribunal delivered in Appeal No,30-K of 1994 which was dismissed on the point of limitation, wherein it was argued that the Supreme Court had condoned the laches of about 13 years in filing of a Constitutional petition in the case reported in 1987 SCM R 1119, and the Tribunal was not justified in non-suiting the petitioner on the ground of limitation. The Tribunal in Appeal No,30-K of 1994 held the view that the Tribunal can go into the point of limitation as per provisions of Rules contemplated in the Service Tribunals Act, _1973. The Hon'ble Supreme Court maintained the judgment of the Tribunal and the relevant observations of their Lordships are reproduced hereinbelow:- "4. The above contention is devoid of any force for more than one reason, firstly, that there is a distinction between laches in filing of a Constitution petition and filing of an appeal under a statute inasmuch as for the former remedy, no period of limitation is prescribed, whereas for the latter remedy, the relevant statute prescribes the period of limitation. In case of . a Constitution petition the Court insists upon that a petitioner should act promptly without any inordinate delay. However, in a fit case, a High Court or this Court may overlook the delay if the dictates of justice so demand and during the period which had elapsed the situation had not materially altered. However, in a case of an appeal, the period of limitation cannot be extended by the Court unless and until the delay of each day is explained under section 5 of the Limitation Act if it is made applicable In the present case, the Constitution Petition was filed after nearly 13 years. The High Court might have overlooked the laches if there were justifiable reasons but the above position was held to be not competent. The above order was passed by a Division Bench of the High Court as pointed out hereinabove on 20-12-1993, whereas the above service appeal was filed on 19-2-1994 i,e,., after the expiry of two months as the period provided under section 4 of the Service Tribunals Act is 30 days.
6. So, even if we were to compute the period of limitation from the date of the above order of the High Court, the petitioner's above service appeal was patently barred by time. In this view of the matter, no exception can be taken to the impugned judgment. Leave is accordingly, refused."
7. ' In view of the above enunciation of law, I would also dismiss the appeal in limine,