1991 PLP (C (PLC(CS))

Mr. Amanat Ullah Khan, Ex-B&AO N-782-A, Samanabad, Lahore. Subject: GRANT OF SENIORITY AND PROFORMA PROMOTION MR. AMANAT ULLAH KHAN EX-B&AO. Ref: Your application, dated 13-12-1986 addressed to Chairman, WAPDA. Your request as contained in your application under reference has already been considered at many occasions in the past but you were not found fit for promotion by the relevant Selection Boards. This bears approval of Chairman, WAPDA. (Sd.) BUDGET & ACCOUNTS OFFICER (A&C) FINANCE, WAPDA." Finally, the appellant preferred this apps al on 31-1-1987.

3. The appellant has argued the appeal himself. He has give resumes of the events mentioned above. He has urged that he was denied dine promotions or, account of his suspension which was held to be unlawful and on, restoration of admissible benefits of service, he was entitled to be given pro forma promotions which had been due to him but for his suspension. He has cited several authorities, which would be referred to at the appropriate place.

4. The respondents Nos.1, 2 and 3 have resisted the appeal and made denial in the written objections of mala fide actions attributed to the respondents officers. The learned counsel appearing on their behalf has contended that the appeal is hopelessly time-barred inasmuch as that the appellant had made representation therefore on 3-5-1976, whereas he preferred this appeal as late as 31-1-1987. He has next contended that the appellant was denied promotions not on account of his suspension but on account of his unsatisfactory record from earlier than 1970 and he could not claim any pro form a promotion even after the restoration of his dues for the period he had remained under suspension. Private respondents Nos.4 to 7 have not contested the appeal.

5. The appellant has preferred this appeal for the relief of promotion as an Accountant from the dates his juniors M/s. Abdul Shakoor, Iftikhar Ali Shah and Muhammad Jamil Qureshi were promoted as Accountants and Senior Accountants viz. 14-9-1970 and 6-1-1977. He has alleged that he was denied promotion alongwith his juniors due to mala fide actions of M/s.M.Y. Khan and Bashir Ahmed who, according to him, were members of the Selection Board. During the course of arguments, he has laid stress on the order of his suspension from service for the period from 10-2-1970 to 21-4-1975 and contended that the order of his suspension was mala fide, having been manoeuvred by Mr. M.Y. Khan, and has made reference to the observations made in the special rollout submitted by the Director General, Prevention and Detection, WAPDA, Lahore (at pages 37 to 46 of the memo of appeal). He has also made reference to the observations made in the inquiry report which was submitted earlier, the extracts whereof have been filed at pages 51 to 54 of the memo of appeal. He has also referred to the observations made in the judgment of the Punjab Labour Appellate Tribunal, dated 26-8-1983 in his case regarding his remuneration for the period he was kept under suspension. A copy of the judgment has been filed at page 73 of the memo of appeal. Of course, certain observations were made in the special report and the inquiry report and also in the judgment The Punjab Labour Appellate Tribunal that the appellant had suffered victimisation by the actions taken against him Certain observations of like nature were also made by this Tribunal in the judgment delivered in Appeal No.92(L)/83 and Appeal No.112(L)/85 filed by the appellant against the orders of his removal from service under section 17(1-A) of the Wapda Act, 1958 and his compulsory retirement from service on rendering service of 25 years qualifying for pension under the WAPDA Employees (Retirement) Rules, 1979, respectively. But that judgment was set aside by the Supreme Court by judgment dated 27-4-1988 in Civil Appeals Nos. 114 and 115 of 1987. The appeals were reheard by another Bench of this Tribunal and the allegations of mala fides alleged by the appellant were repelled in its judgment dated i1-10-1989. The appellant's application for leave to appeal against that judgment was dismissed by the Supreme Court by order dated 26-2-1990. The appellant has, no doubt, filed a photostat copy of a Memorandum dated 26-3-1990 where under he was informed by the Assistant Registrar of Supreme Court of Pakistan with reference to his application dated 2-3-1990 that his Civil Petition No.35 of 1990 would be entertained. In any case the appellant's Appeals Nos. 92(L)/83 and 112(L)/85 pertained to the orders of the appellant's removal from service and his compulsory retirement from service and the question of his suspension from service was not under adjudication in those appeals. The question of mala fides behind the order of suspension of the appellant apart, the appellant has also contended that the order of his suspension was illegal, inasmuch as that it was not passed by the competent authority and also that the period of his suspension was not reviewed after every three months as per standing orders which were prevailing at the relevant time. He has added that realising that his suspension was not lawful emoluments for that period were released to him as per salary slip dated 28-8-1986. He has taken the plea that by virtue of restoration to him of his emoluments for the period of suspension, he became entitled to the benefits of seniority and proforma promotions as well. This plea of the appellant is misconceived. The reliefs of proforma promotion and seniority do not necessarily flow from the restoration of his emoluments for the period he had remained under suspension. The appellant could have agitated those pleas if his promotion and /or seniority had been denied on account of his suspension. The respondents have placed on record synopsis of the minutes of the meetings of the selection Board held during the years 1973 to 1985, as Annexure R-29 at page 100 of the written objections. For the purpose of this appeal, the relevant period is from 1970 to 1975 during which he had remained under suspension. It appears from the synopsis of the minutes of the meetings of the Selection Boards that the appellant was not considered lit for promotion at the meetings of the Selection Boards held on 4-5-1973, 24-9-1974 and 9-5-1975. The departmental representative has also shown at the hearing a copy of the minutes of the meeting of the Selection Board held on 22-7-1970 wherein too the appellant was not considered fit for promotion. He was found unfit even in the year 1976. The stigma of unfitness continued even upto 1979 with the added ground that disciplinary proceedings were pending against Trim. His consider anon for promotion during the subsequent years was deferred on account of his removal from service etc. The stigma of unfitness is supported by a number of adverse entries in his ACRs, copies of which have been placed on record. There is no evidence that the promotion of the appellant was either denied or deferred on account of his suspension from service but it was not allowed on account of his unfitness for promotion. That being the case, he cannot seek from this Tribunal the relief of pro forma promotion etc. in view of the bar contained in proviso (b) to subsection (1) of section 4 of the Service Tribunals Act, 1973, laying down that no appeal shall lie to the Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to, or to hold a particular post or to be promoted to a higher grade. It may be mentioned here that the appellant has cited the following cases but they are of no avail to him in view of the fording that he was not deprived of promotion on account of his suspension. The cases cited by him are: PLD1958SC104;PLD1961SC105;PLD19(kSC188;PLD 1967 Kar.295; P L D 1970 S C 453; P L D 1971 S C 184; P L D 1975 S C 331; P L D1976SC435;1981SCMR39 `,?LD1981SC816;1984SCMR590;1984 P L C (C.S.) 926; 1984 CLC 2782 and 1987 S C M R 1947.

6. The respondents Nos. 1, 2 and. 3 have agitated that the appeal is time-barred. The learned counsel appearing on their behalf has urged that the appellant made representation on 3-5-1976 for the relief of proforma promotion and seniority etc. and he also made representation to the Prime Minister's Secretariat and the respondents explained the case to the Prime Minister's Secretariat and the appellant was informed from there vide letter dated 30-6-1977 that he could not be promoted, but he did not prefer any appeal to the Tribunal. According to them, the appellant's pressing in aid the reply dated 7-1-1986 on his application dated 13-12-1987 did not concede to him condonation of delay in filing the appeal as it was a highly belated representation and he was informed under the letter dated 7-1-1987 that his request had been considered on many occasions in the past and he was not found fit for promotion by the Selection Boards. The appellant did agitate the question of his promotion in 1976 by making an application dated 3-5-1976 to the Chairman and failing to get reply there to he could have preferred the appeal at that stage and his case could not be reopened for invoking the jurisdiction of the Tribunal by just repeating his representation for promotions and obtaining a reply thereto The appeal, therefore, appears to be time-barred.

7. For the reasons recorded above, the appeal is not only time-barred but is also devoid of any merit and is dismissed as such: M.Y.H./579/Sr.F Appeal dismissed.