2001 PLP (C (PLC(CS))

Niaz Ahmed Khan, Standing Counsel. Date of hearing: 16th June, 1998. MUHAMMAD RAZA KHAN (MEMBER).

The appellant joined as Assistant Director in the National Savings Department after selection through the Federal Public Service Commission in 1984. He was transferred by the Establishment Division on 22-8-1989 to Ministry of Commerce on deputation. Thereafter, he was notified to be appointed by transfer vide Notification dated 16-1-1990 in the Office Management Group (OMG). Vide an order issued in 1993 it was decided that appellant may reckon his seniority with effect from 16-1-1990 i.e. the date of his induction and in such a manner he was allowed seniority position at serial No. 1-A. Vide impugned Notification dated 31-1-1995, 64 junior Section Officers were promoted to B-18 and the challenged his supersession on 7-2-1995 which was replied to on 5-11-1996. He repeated an appeal on 14-11-1996 which was intimated to have been withheld on 23-2-1997. He again issued a reminder on 7-3-1997 which was again intimated to have been withheld by a reply dated 24-6-1997. Hence this appeal filed on 23-7-1997.

2. We have perused the rules and listened to the arguments of the appellant and the learned Standing Counsel for the department.

3. On merit the learned Standing counsel has argued that the notification of induction issued on 16-1-1990 was not in accordance with the prescribed procedure and that the case is not placed before the DPC and the formalities required for the process in the case were not compiled with. Hence he argued that when the appellant challenged the promotion 64 officers he was informed that his regularisation was still under process. Apart from the issue of limitation which would be discussed hereinafter, we are of the opinion that the attitude of the department in certain similar type of situation is not only unreasonable but it also demonstrates flagrant injustice and mala fide. So far as the civil servant, like the appellant, is concerned, he does not know the formalities and the procedural complications. At the most he is satisfied with the written order passed by the competent Authority. In this case there are two orders in favour of the appellant. One dated 16-1-1990 which was a Gazette Notification for the regular induction of the appellant and the other one also a Notification, determining the seniority of the appellant with others in the OMG issued on 11-12-1993: These notifications are not denied to have been signed and issued by the appropriate Officer of the Establishment Division and there is no allegation about their genuineness. In such a situation a contrary on dated 5-11-1996 issued by a section of the same Establishment Division is not only contrary to the Gazette Notification issued six years earlier, but it is also contrary to all the moral and social values, wherein it has been alleged that the appointment of the appellant by transfer "in the OMG has not yet been regularised as he did not fulfill the prescribed criteria at the time when his case was considered by the departmental promotion committee." Such an intimation after six years for regularisation of the service of a poor civil servant is nothing but a bolt from the blue. There is neither any logic nor any sense in the value of the OM intimating the non-regularization of the service by superseding the Gazette Notification issued on 16-1-1990. Moreover, this OM mentions that the civil servant concerned did not fulfil on the prescribed criteria at the time when the case was considered by the departmental promotion committee. It is inconceivable how, and when, the departmental promotion committee could consider the criteria after the issue of notification for regular induction in 1990. Any such criteria would have been considered prior to 1990 and not hereafter. Moreover, the departmental promotion committee has the assignment to consider the promotion of officers and not the regularization or appointment. A matter decided and notified earlier and also enforced and acted upon cannot be reversed by such an afterthought.

4. It has been held by the Supreme Court in a number of cases that the written commitments should be honoured and they should not be reversed mechanically and without compliance with the procedure of show-cause notice with the stress that the Government must honour its commitment, specially those made in writing, as otherwise the confidence of the public in he written document and the commitment of the Government will be shattered.

5. In the comments as well as in the argument by the learned counsel it has been stated that the order of induction was "illegal" on several grounds. However, the responsibility of such declared illegality has not fixed nor it has been stated that any action have been taken against the officer who has passed such "illegal" order. Authority cannot be bestowed with the power to issue certain notifications and to turn around and nullify the same without rhyme or reason. It has been argued that as a result of political pressure the orders of the induction were got issued whereas the legal requirements and formalities were not complied with. Such an attitude of the civil service is 'lot in consonance with the legal requirements. The department cannot simply deny or avoid its responsibility to honour a particular order on such flimsy rounds without its actual cancellation and that too without issuance of the how-cause notice. Hence we are of the opinion that the letter dated 5-11-1996 was without justification and a mere nullity.

6. However, we cannot enforce the above view point for the only reason that the appeal was patently barred by time and there is neither a justification nor a request for condonation of delay. The cause of action accrued on 31-3-1995 and the first denial was conveyed to the appellant on 5-11-1996 and thus, the appellant should have approached the Tribunal within thirty days thereafter, if not earlier. The repetition of appeal is and representations is never allowed by the law and thus, the period between 5-11-1996 to 23-7-1997 is not explained and thus, we hold that the appeal is hit by limitation and consequently the same is dismissed as time-barred.

7. No orders as to costs parties be informed. H.B.T./262/St/F/ ???????????????????????????????????????????????????????????????????????????????? Appeal dismissed.