1976 PLP [C (PLC(CS))

HAMZO KHAN M. KURESHI (CHAIRMAN)

This appeal is directed against the order dated 8‑10‑1970 passed by respondent. No. 2, thereby reducing the appellant from 'C' Grade Assistant to Senior Clerk and giving him the pay scale of Rs. 75‑6‑105/7‑

175. He also ordered recovery of Rs. 5603.93 which the appellant had overdrawn from 1‑7‑1960 upto the date of above order. The appellant filed departmental appeal to respondent No. 1 on 2‑7‑1973, who after taking advice from the Finance Department, rejected it on 16‑7‑1974. The appellant then made a mercy petition to respondent No. 1 on 19-8‑1974 but it too was rejected on 19‑11‑1974. The appellant had preferred appeal to respondent No. 1 on 2‑8‑1974 against the order dated 16‑7‑1974 but it too was rejected on 4‑12‑1974. He then filed the present appeal on 21‑12‑1974. He claims pay scale of Rs. 120‑10‑200/10‑250 with effect from 26‑1‑1959 as confirmed 'C' grade clerk which was equivalent to the post of an Assistant. He claims declaration that the order dated 8‑10‑1970 passed by respondent No. 2 was illegal and ultra vires. The appellant was appointed as Junior Clerk in the office of Chief Game Warden, Hyderabad on 16‑3‑1955 in the pay scale of Rs. 50‑4‑

110. On the orders of the Commissioner, I3yderabad dated 12‑1‑1959 he was given accelerated promotion as 'C' Grade Clerk‑cum‑Accountant in the scale of Rs. 120‑10‑210 on probation for three mouths. The appellant claims that 'C' Grade Clerk was equivalent to the post of an Assistant. After completion of three months probationary period he was provisionally confirmed as 'C' Grade Clerk vide order of the Game Warden, Hyderabad, dated 4‑17‑1959 and got benefit of the pay Revision Rules of 1959. He continuously worked in 'C' Grade till February, 1969 when the Game Warden Department was abolished and Its personnel absorbed in the Forest Department. After the said absorption, the respondent No. 2 fixed the pay of the appellant as Senior Clerk in the scale of Rs. 75‑6‑105/7‑175 and sent the papers to the Comptroller Southern Area (now Accountant General of Sind) for entries in his service book. It was found by Accountant General that the appellant bad drawn excess pay to the extent of Rs. 5,603.93 hence he was directed to refund the same in easy instalments. On appal the Government did not waive the recovery nor gave the appellant the scale of an Assistant, hence this appeal. The case of the respondents is that the appellant was only 'provisionally, confirmed in 'C' Grade which post was subsequently converted into that of a Senior Clerk in the scale of Rs. 75‑6‑105/7‑175 vide West Pakistan Government letter No. E P & D/SOAH a‑11‑3‑2/58 (V) dated March 1960 and such entry was made in his service book. The appellant was absorbed in the Forest Department as Senior Clerk with effect from 1967 and his pay was fixed according to the entries 9n his service book. They assert that the Assistant Game Warden, Hyderabad had wrongly fixed the pay of the appellant in the scale of Rs. 120‑10‑210 as he had no authority to do so. It was to be fixed by the Comptroller, Karachi hence the papers were sent to him for that purpose. The Comptroller, Southern Area, Karachi fixed the pay of the appellant in the grade of Senior Clerk at Rs. 75‑6‑105/7‑

175. They further contend that the appellant was working as Cashier hence he himself drew his pay according to his own choice, in spite of knowing the real position and without caring to get his pay fixed from the Comptroller. Southern Area and he had therefore defrauded the Government. This mistake or fraud was detected when the appellant was absorbed in the Forest Department and on the orders of the Comptroller, Southern Area the excess amount was ordered to be recovered from him. They contend that the appellant could not be termed as "confirmed Assistant" because it was only a provisional order passed by the Game Warden Department which itself was a temporary department. The appellant, according to them, was only provisionally confirmed as 'C' Grade Clerk which post was subsequently abolished by the West Pakistan Government and converted to the post of a Senior Clerk which scale was awarded to him. We have carefully gone through the record of the case and find that the appellant was only provisionally confirmed as 'C' Grade Clerk by the order of the Assistant Game Warden dated 4‑12‑1959. How far was this jumping promotion legal or proper is not for us to comment Admittedly there is no order to show that the appellant was at all confirmed against a vacant post of 'C' grade and was protected by law. It is also an admitted position that the Game Warden Department was itself a temporary department and that is why it was merged in the Forest Department in 1967. It is also an admitted position that the Forest Department absorbed the appellant as Senior Clerk and not as Assistant. It is also not denied that the post of a Grade Clerk was converted in the post of Senior Clerk vide West Pakistan Government letter dated March 1960 quoted above. The respondents contend that in the light of the above‑said letter of West Pakistan Government the pay scale of the appellant was reduced on 16‑11‑1962 but this order was not implemented by Game Warden Department and the appellant, being a Cashier, continued to draw the higher scale till his department was merged in the Forest Department in 1967. Respondent No. 2 had therefore no alternative but to implement the order of the Government and fix the appellant in the proper scale as Senior Clerk. There appears to be any amount of force in the contentions of the respondents and we agree with them. In view of this legal position the appellant has ho case and his appeal must fail. Another point urged by the respondents is that the appeal is time‑barred. We agree with this contention. The appellant himself admits in his memo of appeal that the original order was passed against him by respondent No. 2 on 8‑10‑1970 but he filed the departmental appeal to respondent No. 1 on 2‑7‑1973 i. e. after 2 years and 9 months. The maximum period allowed for departmental appeal is 30 days. However since the appellate authority of the department did not raise this point while the matter was pending before him, we do not feel it necessary to reject this appeal on that ground. We would however consider the appeal as time‑barred because the order in first appeal was passed against the appellant on 16‑7‑1974. The present appeal was filed on 21‑12‑1974, i. e. after 5 months and 5 days. The limitation period to file appeal before this Tribunal is 30 days from the date of the order passed in the departmental appeal. The appellant however chose to wait till the order rejecting the second departmental appeal was passed on 4‑12‑1974. The period of limitation would run from 16‑7‑1974 and not from 4‑12‑1974. No application for condonation of delay was filed by the appellant to explain the delay. We, therefore, accept the contention of the respondents that the appeal was time‑barred. The appeal must fail on this legal ground as well. In the result we come to the conclusion that this appeal must fail on merits as well as on the point of limitation. We accordingly dismiss the appeal but leave each party to bear his own costs.