2002 PLP (C (PLC(CS))

He has reiterated the law point raised in the memo. of appeal to the effect that: "(1) Whether the learned Federal Service Tribunal could dismiss the appeal of the appellant, in view of dictum laid down by this august Court, in the case "Federation of Pakistan v. Raees Khan 1993 SCMR 609" and submitted that the Tribunal was in error in countenancing the failure on the part of the official‑respondents herein to allow his client the "move‑over" in the next higher scale in spite of his eligibility and that he could not be deprived of the benefits of post in Grade‑18, which he was holding since 9‑2‑1992. The learned counsel concluded his arguments by submitting that his client was: (i) cleared for promotion by Departmental Promotion Committee on 4‑4‑1982 as Assistant Mechanical Engineer BS‑17; (ii) put to work, vide Notification No.6/9/82‑A‑11, dated 4‑4‑1982, against a higher post with effect from 4‑4‑1982 and (iii) the treatment meted out to him at the departmental level by not regularizing him in service with effect from 26‑8‑1987 with the observation that the vacancy occurring on account of retirement of one‑Mazhar ul Haq against 40% quota on 26‑8‑1987 was filled in December, 1991 without noticing that he stood promoted as Assistant Mechanical Engineer since 4‑4‑1982, is sans any support of law on the subject.

3. Contrarily, Mr. Muhammad Nawaz Bhatti, learned Deputy Attorney‑General of Pakistan appearing on behalf of respondents Nos. 1 and 2 has supported the impugned judgment generelly and laid specific emphasis on the observations made by the Tribunal that:... (i) the appellant-- (a) failed to make departmental representation against Department's alleged failure to regularize him in service against 40% quota on the vacancy occurring on account of retirement of Mazhar ul Haq on 26‑8‑1987; (b) did not challenge the filling of the above vacancy in December, 1991; and (ii) did not impugn the appointments of private‑respondents in B‑17 made on different dates in October, 1989, December, 1990 and January and May, 1991 on the allegation that they had usurped the quota of departmental promotees; and (iii) "...this procrastination of the appellant made this appeal filed in February, 1995 time‑barred. From whatever angle we examine this appeal, it is hit by the clog of limitation. The application for condonation of delay having no plausible explanation is rejected."

4. We have considered the arguments addressed at the Bar and have also gone through available material with the help of the learned counsel for the appellant and the learned Law Officer.

5. It was common ground between the parties before the Tribunal that the appellant. was promoted to B‑17 on regular basis with effect from 14‑1‑1992 vide Notification dated 20‑1‑1992 and that this Notification was notified in the Gazette of Pakistan, dated 4th March, 1992. The Tribunal took 'notice of the contention of the appellant that this notification was circulated by the General Manager (Personnel) vide letter dated 18‑9‑1994 and that this did not satisfy his claim with the result that he made departmental appeal addressed to the Secretary, Establishment Division on 15‑10‑1994 foi regularization of his appointment in B‑17 w.e.f. 26‑8‑1987 and also for move‑over from B‑17 to B‑18 and falling to get response, he preferred appeal before it on 15‑2‑1995 and came to the correct conclusion that: "...It is interesting and rather surprising that the appellant who was promoted to B‑17 alongwith his five. other colleagues did not have the knowledge of his own promotion, who was sitting in the headquarters and was working as Personnel Officer and it is inconceivable and the contention of the appellant is fallacious and cannot be accepted. We have carefully examined the forwarding letter dated 18‑9‑1994 whereby the notification dated 20‑1‑1992 was forwarded to all the Divisional Superintendents and Extra Divisional Offices and FA/CAO, etc. for information and further action at their end but it does not go to show that this letter was meant or issued in the name of the appellant, and this communication dated 18‑9‑1994 does not and cannot create a cause for filing of departmental appeal, but it was the Gazette notification dated 20‑1‑1992 which, if at all, did not satisfy claim of the appellant, could be appealed against within thirty days departmentally. The departmental appeal made on, 15‑10‑1994 was itself hopelessly time‑barred and there being no final rejection order in the field, this appeal filed before the Tribunal is also time‑barred and incompetent in view of the law laid down by the Hon'ble Supreme Court reported in PLD 1990 SC 951 (Chairman PIAC v. Nasim Malik). The result is that this a gal fails and is dismissed with no order as to costs." (Emphasis supplied). It is not the case of the appellant that he proceeded in the matter of his claim for regularization in service with effect from 26‑8‑1987 by resorting to the departmental remedies in time in relation to either‑‑ (i) the resultant vacancy of promotion quota caused by Mazhar ul Haq on the eve of his retirement, i.e. with effect from 26‑8‑1987; or (ii) to alleged usurpation of quota of the departmental promotees by the private‑respondents herein at the time of their promotions on different dates in October‑1989, December, 1990 and January and May, 1991,... We find that the Tribunal was on the right rails in following the law declared by this Court in Chairman, PIAC (supra) to the effect that when appeal before the department was time‑barred, the appeal before the Service Tribunal was also incompetent on that account.

6. We further find that the Tribunal attended to the following facts of the case of the appellant before it:‑‑ (i) That the appellant be treated as a regular officer in BS‑17. post of .the Transportation (Power) and Mechanical Engineering Department w.e.f. 26‑8‑1987 viz. the date of occurrence of vacancy in his own quota. (ii) Appellant be assigned seniority position amongst‑the BS‑17 Officers of the Transportation (Power) and Mechanical Engineering Department of Pakistan Railways in view of his date of regular promotion as 26‑8‑1987. (iii) Appellant be allowed move‑over to next higher grade viz. BS‑18 w.e.f. 1‑12‑1987. and came to the correct conclusion that in none of the above situations he showed due vigilance in making a move before the authorities and/or the Tribunal under section 4 of the Service Tribunals Act (No. LXX of 1973).

7. We have also gone through the contents of appellant's application under section 5 of the Limitation Act for condonation of delay (copy available at pp. 42‑43), paras. 2 to 4 whereof read as under:‑‑ "(2) That filing of the appeal is at the best two days' delay. "(3) That the delay in filing the appeal is not intentional or deliberate but on account of confusion in calculation of the days required for the purpose and the innocence on the part of applicant. "(4) That the applicant will suffer irreparable loss and injury if the delay is not condoned." The Tribunal has not been shown to be in error in not accepting the above application with the observation that the same has no plausible explanation to other in that regard.

8. Be that as it may, in the absence of any plausible/satisfactory explanation forthcoming on the record to undo the legal effects of the following observations of the Tribunal:‑‑ (i) Appeal No.44(L) of 1995 was barred by time. (ii) Appeal No.44(L) of 1995 was not competent "... in view of the law laid down by the Hon'ble Supreme Court reported in PLD 1990 SC 951 (Chairman, PIAC v. Nasim Malik)"; and (iii) Departmental appeal filed by the appellant on 15‑10‑1994 " was itself hopelessly time‑barred, and there being no final rejection order in the field, this appeal tiled before the Tribunal is also time barred. " We are inclined to the view that the appellant is himself to blame for the predicament in which he finds himself today.

10. In view of the above discussion, the appeal is dismissed with no order as to costs. Q.M.H./M.A.K./M‑344/S Appeal dismissed.