1993 PLP (C (PLC(CS))

2. Briefly stated the facts of the appellant's case are these. On the basis of his academic qualifications namely B.A. (Second Div. in Economics), the appellant was appointed in a temporary post of Agriculture Assistant (F&M) with condition that his services were liable to be terminated on one month's notice and without assigning reasons for the termination Subsequently by the Agriculture Department's Notification No. S.O. (A‑I1) 5(26)/72‑II, dated 6th August, 1975, inter alia the posts of Agriculture Assistants were brought in Grade‑16 (Rs.400‑‑35‑‑750‑‑50‑‑1,000) w.e.f. 28th August, 1972 without payment of arrears. The benefit of the upgradation was extended even to non -graduates in relaxation of the relevant rules. Accordingly the appellant's pay and position got upgraded. Once again by the Finance Department's Order No. SR‑IV/1‑129/77, dated 14th September, 1978, the posts of Agriculture Assistants were redesignated as Agriculture Officer; placing them in NPS‑17 (Rs.900‑‑50‑‑1,150) w.e.f. 1st February, 1978. As a result, the appellant too got the benefit of the said re-designation.

3. Following the promulgation of MLO‑55 on 2‑5‑1978 the appellant's case was referred to the relevant Select Committee for review under the said MLO. On the recommendation of the said Committee his services were terminated vide Agriculture Department's Notification dated 24th February, 1979. Thereupon the appellant made representation on 19‑1‑1980 against his removal. Pending decision on the said representation, he made one more application to the Chief Secretary on 14‑10‑1981. The appellant was ultimately offered a lower post of Economic investigator of Grade‑11 vide order dated 24‑1‑1982, which he accepted as per his duty report dated 25‑1‑1982. In February, 1983 he was granted 26 days earned leave whereafter he did not turn up for duties but instead allegedly kept on making representation for undoing of the wrong done to him until he received the impugned communication from the Agriculture Department, referred to above and filed the present appeal.

4. We heard Mr. Ghulam Nabi Sheikh for the appellant and Mr. Abdul Latif Ansari, AA.‑G. on behalf of the official respondents. With their assistance we also went through all the relevant documents. 5. ‑ The material part of the appellant's prayer reads as follows: "That the notification dated 24‑2‑1979 may kindly be rescinded as the case of the appellant has wrongly been referred to the Select Committee under the MLO 55."

6. The appellant's above prayer clearly shows that his only grievance was against the reference of his case to the Select Committee under MLO

55. In support of his grievance he placed reliance on this Tribunal's decision dated 29th April, 1985 in Ghulam Sarwar's case (Appeal No. 5 of 1984). We have carefully gone through the said decision. We regret to say that the facts of the Ghulam Sarwar's case being totally different and hence distinguishable from those of the present appeal, the said decision would not provide any help in deciding the present appeal. In the aforementioned case the issue of inter se seniority between the parties was involved for which even the Provincial Government in the S&GAD had issued a circular dated 12th June, 1979 clarifying that despite scrutiny of the cases made under MLO‑55 the seniority of the civil servants concerned would remain intact and would not be adversely affected by such process. But the position in the present case was altogether different. The present case seemed to be covered by sub‑clause (ii) of clause (a) of para. 2 of the said MLO, which provided that the appointment for which method of recruitment was not prescribed, if made by initial recruitment without advertising the post and if made by promotion without obtaining the clearance of the relevant Departmental Promotion Committee, would be treated as ad hoc appointment calling for review under the above MLO. Admittedly the appellant was appointed in the newly‑created post of Agriculture Assistant in the Economic and Marketing Wing of the Agriculture Department. It was made clear in the Director of Agriculture Extension Sindh's letter No. Estt‑III (68)/2479, dated 31‑10‑1968 addressed to the Deputy Director of Agriculture, Khairpur Division, Khairpur that the qualifications for the posts of Agriculture Assistants (F & M) were not prescribed in the new rules. Moreover, the appellant neither came through Public Service Commission nor was cleared by any departmental committee. In fact it is not disputed that by the time he was appointed in the aforesaid newly created post, no method of recruitment to that post was yet prescribed. Furthermore the stand taken on behalf of the official respondents was that the appellant did not possess the required qualifications for the post he was holding. He was only Arts Graduate, though he was supposed to perform duties related to Agriculture. Their further contention was that the appellant's initial appointment was purely temporary terminable on one month's notice and without assigning any reason. As such the argument of the respondents' learned counsel was that the appellant's appointment of Agriculture Officer in Grade‑17 fell within the ambit of MLO‑55 and consequently the reference of the appellant's case to the Select Committee was fully justified. For all these reasons we are also of the view that the appellant's case did fall within purview of MLO‑55 and it was rightly referred for scrutiny under the said MLO. Consequently the appellant's grievance was totally misplaced.

7. It would further be noticed that consequent upon appellant's departmental appeal dated 19‑1‑1980 followed by his application dated 14‑10‑1981 to the Chief Secretary as a reminder of the said departmental appeal, against the order of termination of his services, he was offered a post of Economic Investigator in Grade‑11 by order dated 23‑1‑1982 of the Director General, Sindh Agriculture Extension and Adaptive Research Project, Hyderabad. As is clear from his duty report dated 25‑1‑1982, he accepted the said job with thanks. He went a step further and made application dated 24‑2‑1982 to the Chief Secretary, praying therein that he may be allowed "due rights by fixation of pay and seniority", obviously of the Grade‑II post he had accepted. With this move on his part, the chapter of the appellant's case was finally closed. Having accepted the lower post of Grade‑11, following the due scrutiny of his appointment under MLO‑55 in the light of qualifications he possessed, the appellant could not subsequently turn round and question his removal from the post of Agriculture Officer. After acceptance of the ultimate decision taken under MLO‑55, the appellant was legally estopped from agitating against the said decision. Moreover, as pointed out above the appellant was merely an Arts Graduate in Economics whereas the eligibility for appointment in the post of Agriculture Officer was not less than M.Sc. (Agriculture). This is clear from the Finance Department's order dated 14th September, 1978 whereby Grade‑17 was allowed to Agriculture Assistants. On the basis of this order, it was submitted on behalf of the appellant that the above qualification of M.Sc. was not applicable to the existing incumbents including the appellant. It appeared to us that this argument stemmed from misreading of the aforesaid order. Para. 3 of the order which speaks of the existing incumbents reads as under:‑‑ "The existing incumbents of the posts holding qualification of B.Sc. (Agriculture) in the agriculture sector and qualification lesser than B.Sc. (Animal Husbandry)/D.V.M., in the animal husbandry/veterinary sector of those appointed to the posts by promotion will be allowed NPS‑17 as personal to them. They will, however, be eligible for further promotion only after acquiring the qualification prescribed in paragraph 2 above."

8. It would be seen that in the Agriculture Sector the existing incumbents possessing the Degree of B.Sc. (Agriculture) were allowed the concession of the upgraded post of Agriculture Officer in Grade‑

17. Since the appellant was having only Arts Degree in Economics, he was not covered by the above concession.

9. Apart from above, the appellant's present appeal is hopelessly time barred. The Agriculture Department's communication dated 5th June, 1990 which has been made the starting point for calculating limitation, obviously did not contain any order or decision of the departmental authority, muchless the intended order of termination of the appellant's services as Agriculture Officer, or the decision in any departmental appeal from the said order. By the said communication only a copy of the S&GAD's U.O. No. S.OApls. (S&GAD)‑1 53/88, dated 28th May, 1990 was forwarded to the Director‑General, Agriculture Extension, Hyderabad with request that the appellant be apprised of the contents of the said U.O. letter of the S&GAD. The perusal of the latter documents clearly indicated that this too did not contain any departmental order or decision. It only, showed that the appellant's case stood decided on 16‑1‑1986. Thus the cause of action arose for the first time to the appellant, when his services as Agricultural Officer were terminated as per order dated 24th February, 1979. No doubt he preferred departmental appeal from the said order but it was filed on 19‑1‑1980, nearly one year after the termination order was issued. There is absolutely no explanation for the delay in filing the departmental appeal. It has been repeatedly held by this Tribunal that time barred departmental appeal is no appeal in the eye of law, unless the delay was condoned by the departmental appellate authority and the appeal was decided on merits. No such condonation or decision of the higher departmental authority has been produced before us. The impugned communication of the Agriculture Department which has been made the basis of this appeal cannot be the substitute of the order/decision of the departmental appellate authority. Even according to the said communication and its accompaniment the appellant's case stood decided on 16‑1‑1986. But the appellant has not produced any departmental order of that date nor has he furnished satisfactory explanation what prevented him from producing such order. In the alternative he has not explained why he did not approach the Service Tribunal in 1986 when actually his case was finally decided at the departmental level. Thus, this appeal was not filed within time and was accordingly hopelessly time‑barred. The cause of action having arisen to the appellant on 24th February, 1979, he has approached this Tribunal in the present appeal only on 27‑7‑1990 i.e. after the delay of more than eleven years.

10. There is still one more aspect of the case, which cannot be lightly overlooked. As stated above the appellant accepted the lower‑grade post of Economic Investigator and assumed charge of the post on 25‑1‑1982. After serving in the said post for over one year, he was granted leave for 26 days vide order dated 3rd February, 1983. It was brought to our notice in course of the arguments that on expiry of the said leave the appellant neither resumed his duties nor applied for extension in leave. Instead he continued to remain absent until filing of the present appeal. When confronted with this situation, the appellant and his learned counsel remained silent and their silence was clearly an admission by them of the appellant's unauthorised absence from duties for almost a decade, which again reflected his utter lack of interest for continuing in service. This attitude on the part of the appellant further explained why she took so many years to seek the desired relief.

11. For the above reasons we have come to the irresistible conclusion that the appeal has absolutely no merit, which is accordingly dismissed with no order as to costs.

12. Given under our hands and the seal of this Tribunal this 17th day of February, 1993 at Karachi. H.B.T./402/Sr.S Appeal dismissed.