1981 PLP (C (PLC(CS))

SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).‑Maqbool Hussain appellant Joined the services of A. K. Government in Police Department as Head Constable on 22‑2‑1951. He could not be deputed for lower School Intermediate School Courses, which were necessary to be passed for being eligible for promotion to the post of A. S. I., within the prescribed age limit with the result that he remained untrained and became overage for said courses. In order to determine and assess the suitability of the untrained Head Constables who had become overage for the aforesaid courses the then I. G.‑P. constituted a Board in the year 1966 consisting of a few Police Officers and headed by him which prepared the promotion list D‑2 of such Head Constables in which the appellant was placed at Serial No.

3. According to the appellant the D.‑I. G. Police Headquarters by undoing the aforesaid list prepared a fresh promotion list of such untrained Head Constables on 7‑10‑1975 in which his name was omitted. It is against this order of the D. I.‑G. Police dated 7‑10‑1975, that the appellant has filed the present appeal before this Tribunal. The case of the appellant in nutshell is that the D. I.‑G. Police had no power to undo the promotion list D/2 and exclude his name from the list prepared by him. On the basis of the above facts it is prayed by the appellant that the impugned order of the D. I.‑G. Police Headquarter be set aside and the name of the appellant be ordered to be included in the promotion list of the untrained Head Constables. The appeal has been contested both on legal ground as well as on merits by the respondent. In the written objections filed on behalf of the respondent the appeal is alleged to be time‑barred. On merits it is contended that the list D/2 prepared by the Board had no legal basis as the same was prepared against the Police Rules, on account of which it was annulled by the I.G. P, himself later on. It is further averred that the Government by relaxing para. 13'9 of the Police Rules by its notification dated 15‑4‑1969 empowered the I.G. P. to promote such untrained Head Constable who could not be sent for prescribed training courses for reason of their being overage and it was in pursuance of the aforesaid powers that the written test of such Head Constables was held under the over all supervision of the D. I.‑G., Police for determining the suitability of such untrained Head Constables for promotion on the basis of merits and ability. It is also contended that the appellant had failed in the said test and thus was not found fit for promotion to the higher rank. We have heard the learned counsel for the parties and have also gone through the relevant record. There is much force in the contention of the learned counsel of the res pondent that the appeal is hopelessly time‑barred The appellant has challenged the order of D. I.‑G. Police Headquarter dated 7‑10‑1975 whereas he has filed this appeal on 3‑8‑1978, i.e. after about 2 years and 10 months after passing of the impugned order. Under section 4 of A. J. & K. Service Tribunal Act, 1975 (hereinafter referred to as an Act) a civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may prefer an appeal against it to the Service Tribunal within 30 days of the communication of the same to him or within six months of the establishment of the appropriate Tribunal which ever is later and if an appeal, review or representation to a departmental authority is provided under any law and regulations or rules for the time being inforce, then an appeal does not he to Tribunal against such an order unless the aggrieved civil servant has filed an appeal or application for review or representation to such departmental authority and period of 90 days has elapsed from the date on which such appeal, application or representation was to be preferred. When the case of the appellant is examined regarding objection to limitation in the light of the above legal position the inescapable conclusion to which one comes to is that the present appeal is barred by time. The impugned order is alleged to have been passed on 7‑10‑1975 when the Administrative Tribunal had already been established on 20th April, 1975. There is no provision in the Police Rules for any appeal or representation against the order of the removal of the name of a Police Officer from promotion list. The appellant himself has taken the stand in his memorandum of appeal that no departmental appeal is competent against the order of the impugned nature and that only a representation against such an order could be made. We have not been able to lay our hands even on any provision in the Police Rules under which a representation against the impugned order was allowed. Thus as no appeal or representation lay against the impugned order the appellant was bound under law embodied in section 4 of the Act to file appeal against it before this Tribunal within 30 days from the date of communication of the same to him but what to speak of 30 days, he did not care to prefer an appeal against the impugned order before the expiry of a period of nearly three years. He has also not filed any application for condonation of delay caused in presenting this appeal. Even if it is assumed for the sake of arguments that the representation against the impugned order was competent, the appellant has failed to make any representation against the impugned order. His contention in this respect is that he had filed two representations against the impugned order, first in January, 1976 and second on 7th July, 1976, but he has only annexed with the memorandum of appeal a copy of the representation dated 7‑7‑1976. From the perusal of this copy of the representation which is Annexure D on the file it becomes quite clear that it is not a representation against the impugned order but a miscellaneous application addressed to the D. I: G, Police, requesting therein for his promotion to the post of A. S. I. on the basis of his sonority as shown in list D/2 dated 27‑5‑1968. In this application there is no reference at all to the impugned order or for that matter any order for the removal of the name of appellant from list D/2 and rather from the contents of this application it appears to have been made in continuation of his some previous application dated 30‑8‑1975, the date when the impugned order had not come into existence as yet. The appellant, therefore, had not made any representation against the impugned order and thus even if his con tention that a representation lay against the impugned order is accepted the appeal is incompetent in view of the proviso (a) to section 4 of the Service Tribunal Act which debars a Civil aggrieved servant to approach the Service Tribunal without first availing of departmental remedy against the order of the competent authority available to his under the law. In case the application of the appellant dated 7‑7‑1976 referred to above is considered to be a representation against the impugned order even then the appeal is barred by time, because in that even the appeal against it before the Service Tribunal could only be lodged within 120 days from the date of making such representation for he had to wait for 90 days from the date of making representation under the proviso (a) to section 4 of the Act and after that he was allowed 30 days for filing his appeal under the provision of the above‑stated main section. But, as stated earlier he has come to seek 6 relief from the Tribunal after the expiry of a period of more than two and a half years. For the reasons stated above we have no choice but to hold that the appeal is barred by limitation. Even on merits the appellant has no case. He main grievance, as could be gathered from the perusal of the memorandum of appeal and from the argu ments of his counsel addressed at bar, seems to be that his name was included in the promotion list D/2 compiled by Board headed by I: G. P. but the D.I.‑G. Headquarter ignoring the said list did not include his name in the fresh promotion list prepared by him by his order dated 7‑10‑1975 for eligibility for promotion to the post of A. S. I. of such untrained Head Constables who had become over-aged. In our view D/2 list had no legal sanction behined it as the same is nowhere provided in the Police Rules inforce in A. K. and rather such a list offended against said rules which only make a provision for maintaining D/2 list of Head Constables eligible for promotion to the post of A. S. I. According to para. 13.9 of Chapter XII of the said rules D/2i list can only be maintained of those Head Constables who have passed the lower school and the Intermediate School Courses at Police Training School and are approved by D. I: G. as eligible for officiating or substantive promo tion to the rank of A. S. I. In view of what have been stated in the preceding paragraph the Board headed by I: G. P. did not possess power to maintain a promotion list D/2 admitting to it such Head Constables who lacked the qualifications prescribed under relevant rules for promotion. The said list, therefore, being unlawful did not confer any service right on the appellant and as such he can not be said to have any ligitimate cause of grievance if the same was cancelled or not given effect to. The factual position appears to be that the D/2 list was annulled by I. G. P, himself as the same was found to be devoid of any legal basis and the fresh impugned promotion list was prepared keeping in view the Notification dated 15‑0‑1969 by which the Government had relaxed para. 13.9 of the Police Rules and given powers to the I: G. P. to promote such untrained Head Constables who could not be deputed for training courses necessary to be passed for promotion for higher rank for reason of their having become over-aged. In order to exercise the power vested by the aforesaid notification in I. G. P. a written test was held under the supervision of the D. I. G. Head quarter of the above‑stated category of Head Constables for assessing their suitability for promotion on the basis of merits and ability and since the appellant failed in this test his name was not included in the promotion list prepared by the D. I. G. on the basis of the result of the afore said test. The above discussion boils down to this that the appellant is not an aggrieved civil servant within the meaning of section 4 of the Act who alone) is given the right of appeal before Service Tribunal inasmuch as by cance ling the list D/2 and not including the name of appellant in impugned promotion list prepared by D. I. G. no terms and condition of his service had been infringed. For the foregoing reason the appeal fails both on the legal ground of its being time‑barred as well as on merits and the same is accordingly dismissed with no order as to costs. The parties be informed of this order. KHAWAJA GHULAM QADIR (MEMBER)‑I agree. Appeal dismissed.