1988 PLP (C (PLC(CS))

KH. MUHAMMAD YOUSAF (MEMBER).‑‑This order shall dispose of the appeals of Miss Khalida Khatoon Malik, Deputy Director (HQ), Acting Joint Director, Social Welfare Department, Lahore and Muhammad Mushtaq, Deputy Director, Social Welfare, Lahore Appeal Nos.754/249 of 1987 and 753/248 of 1987, respectively, filed by them under section 4 of the Punjab Service Tribunals Act, 1974 having impleaded the above‑mentioned as respondents.

2. By virtue of these appeals the appellants have impugned the Government of the Punjab, Social Welfare and Zakat Department's Notification dated 24‑8‑1987 whereby Mrs. Aqeela Asghar Ali, Deputy Director, Social Welfare (BPS 18) was granted pro forma promotion w.e.f. 4‑10‑1976 and was assigned seniority as Deputy Director above Miss Khalida Khatoon Malik and Muhammad Mushtaq, the appellants.

3. Briefly stated the facts, having given rise to seniority dispute between Miss Khalida Khatoon Malik and Muhammad Mushtaq and Mrs. Aquila Asghar Ali respondent on the other hand, are that the appellants and Miss Aquila Asghar Ali were selected as Social Welfare Officers by the Punjab Public Service Commission for regular appointment in the year 1963. The seniority in the order of merits was assigned by the Public Service Commission and the appellants were placed below the contesting respondent Mrs. Aquila Asghar Ali. The other facts admitted by the parties are that bliss Khalida Khatoon Malik was promoted as Field Officer in 1967 and further promoted as Ass1st ant Director in 1970 and then as Dy. Director in the year 1976 (BPS 18). The other appellant Muhammad Mushtaq was promoted as Field Officer in 1966 and further promoted as Ass1st ant Director in 1970 and was further promoted as Deputy Director (BPS 18) in 1976. As regards contesting respondent Mrs. Aquila Asghar Ali, she was promoted as Research Officer in 1969 and further promoted as Ass1st ant Director in 1970. In 1976 her name was considered for promotion alongwith others as Deputy Director (BPS 18) but she was not approved for promotion on account of her unsatisfactory record of service.

4. Mrs. Aquila Asghar Ali has chequered record of service and did not have smooth sailing in her service career upto the relevant date i.e., 1976. She earned adverse reports for the years 1965, 1972, 1973 and 1975. She was also involved in a corruption case. She was convicted and sentenced to imprisonment till rising of Court and also to a fine of Rs.10,000 by the Senior Special Judge, Anti-?Corruption, Lahore. Her case for promotion as Dy. Director (BPS 18) in the year 1980 was again ignored on account of Anti‑Corruption case. She made appeal to the Honourable Lahore High Court against her conviction. Her appeal was accepted and she was acquitted by the Lahore High Court. Then again in 1982 her case for promotion was considered but this time she was cleared and promoted in BPS 18 w.e.f. 28‑8‑1982. She applied to the Honourable Minister for Social Welfare and Zakat Department, Punjab, Lahore for the grant of pro forma promotion w.e.f. the date her juniors were promoted. Consequently the appellant was promoted and granted pro forma promotion through the impugned order (which is subject‑matter of the appeal) w.e.f. 4‑10‑1976 vide Government Notification dated 24‑8‑1987 and was made senior to the appellants. The appellants have challenged‑ the said order before this Tribunal.

5. After preliminary hearing, the appeals were admitted for regular hearing and notices were sent to the respondents who have filed the written objections controverting the averments of the appellants.

6. The appellants have assailed the impugned order mainly on the following grounds:‑ (i) That the impugned order for the grant of pro forma promotion to the respondent Mrs. Aquila Asghar Ali was against the rules and was managed by her through fraud and misrepresentation. (ii) That the appellants were not heard before their seniority above the respondent Mrs. Aquila Asghar Ali was disturbed and changed by relegating the appellants as junior to contesting respondent.

7. On the contrary the respondents have filed their written objections and have taken the plea that it was a case of promotion and the Tribunal's jurisdiction was barred under section 4 of the Punjab Service Tribunal's Act, 1974 and it was further asserted by the respondents that the impugned order granting pro forma promotion and, seniority to the contesting respondent is in conformity with the law.

8. We have made deep appraisal of the entire record and attendant circumstances of the case. It is admitted fact that Mrs. Aquila Asghar Ali retained seniority over the appellants since her regular appointment by the Punjab Public Service Commission in 1963 till 3‑10‑1976. Thereafter she was not approved for promotion and was superseded and therefore, the appellants became senior to her.

9. In 1987 Mrs. Aquila Asghar Ali .was allowed pro forma promotion disturbing the existing seniority of the appellants as she resultantly became senior to them. This was also clearly stated in the impugned order. This impugned order is a subject‑matter of this appeal and the appellants have invoked the jurisdiction of this Tribunal with a prayer to set aside this Notification.

10. The first point raised by the respondents challenging the jurisdiction. of this Tribunal requires determination first. The respondents have relied upon the proviso (1) B of section 4 of the Punjab Service Tribunals Act, 1974 which‑ reads as under:‑ "4(1)(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade." The point involved is the determination of the seniority of the contesting parties. The seniority of the appellants, abruptly, has been disturbed after 11 years. This Tribunal can go into the question of legality of the pro forma promotion order for determination of the seniority point involved in this case. Furthermore, the fitness to promotion is distinguishable from the eligibility to promotion. In these appeals the question for fitness to promotion is not involved at all as the contesting respondent already stood promoted since 1982. The question for determination is the legality of the respondent's pro forma promotion under the rules. In such cases this Tribunal has plenary and unfettered jurisdiction to go into the question to determine if the promotion order is in accordance with the law. We are fortified in our view by the decisions of Honourable Supreme Court of Pakistan as reported:‑ 1983 S C M R 74; 1984 S C M R 1051; 1984 S C M R 1459 and 1985 S C M R

699. In the mentioned cases the Supreme Court of Pakistan had upheld the decision of Federal Service Tribunal whereby the Tribunal had interfered with the recommendations of Promotion Committee in particular circumstances. This Tribunal has also given the detailed judgment in this behalf as reported in 1984 P L C 842 titled. Shaukat Ali v. Safdar which was upheld by the Honourable Supreme Court of Pakistan in the above referred case 1984 S C M R 1.459. The Lahore High Court is also in support of our views. The view has been expressed by the Lahore High Court in case of Muhammad Sharif and 6 others v. Secretary, Irrigation and Power. Department reported as 1981 P L C (C.S.)

562. The relevant para. reads as under:‑ "

7. Section 4 of the said Act does not oust the jurisdiction of the Tribunal in the matter of all questions relating to promotion. It is only the question of fitness for promotion which cannot be agitated before the Tribunal. As explained above, the petitioners have not been declared unfit for promotion due to any reason, such as general reputation for corruption, but have been found not eligible for promotion because they have not cleared the departmental examination. As stated above the question of fitness for promotion cannot be gone into by the Tribunal but the question of eligibility for promotion can be determined by the Tribunal. This view was also recently expressed by a Division Bench of‑ this Court in an unreported judgment delivered in Intra‑Court appeal No.644 of 1981, Syed Ahsan Ali Bokhari: v. Director of Labour Welfare etc." 10‑A ‑In view of the above we are of the considered opinion that 'proviso 4(1)(b) of the Punjab Service. Tribunals Act, 1974 vis‑a‑vis the facts.. of this case is not applicable. The plea of the respondent has no force and this Tribunal has jurisdiction to go into all relevant questions to adjudicate upon the rights of the parties.

11. The next point for determination is, whether the order of granting pro .forma promotion to the respondent is in, conformity with the law. It is admitted fact and also borne out from the record that respondent Mrs. Aquila Asghar Ali's representation against the expunction of adverse remarks, was rejected by the Government. According to rules only one representation lies against the expunction of adverse remarks. It is not intelligible oil comprehensible as how the Secretary Local Govt. and Social Welfare Department accepted the second representation of the respondent and ordered the expunction of adverse remarks when her representation. in this behalf was already rejected by the Government. Even the power to review his own order or the order of his predecessor did not vest in Secretary regarding the expunction of adverse remarks.

12. It is borne out from the record that Mrs. Aquila Asghar Ali, the contesting respondent earned adverse reports for the years 1965, 1972, 1973 and 1975 prior to the relevant date i.e., year 1976 when she was allowed pro forma promotion. Her adverse report for the year 1965 stood intact. Her adverse remarks for the year 1975 were partially expunged while her representation against the expunction of adverse remarks for the years 1972 and 1973 were rejected. It is also established from the record that Secretary, Local Govt. and Social Welfare Department in the year 1977 by one stroke of pen expunged the adverse remarks of the said two years. We have examined the order of Secretary in this behalf. The order does not disclose the reasons or causes for entertaining the second representation for expunction of adverse remarks or for reviewing the earlier order whereby the respondent's representation was rejected. It has been vehemently argued by the appellants that the order of. Secretary expunging the adverse remarks illegally was managed' by the contesting respondent through fraudulent means and this order is illegal and untenable in law.

13. On the other hand the respondents in their written objections have taken the plea that the Secretary, Local Government and Social Welfare Department was competent to entertain the second representation and to review his earlier order rejecting the respondent's representation for expunction of adverse remarks. They have based the plea on the ground that it was in the year 1984 when the SGA & I Department issued instructions that only one representation against the expunction of adverse remarks was maintainable and the power to review was not available to expunging authority. It has been urged by the respondents that the adverse remarks were expunged by the Secretary, Local Government and Social Welfare Department in the year 1977 while the instructions placing embargo came into force in the year 1984. The position taken by the respondents is not factually correct as the position was the same prior to year 1984. The Government instructions in this behalf were issued by the S.GA & I Department No.SORII (S&GAD) 2‑52/73, dated 16th October, 1973 addressed to all the Departments. The relevant portion reads as under: "

6. As regards expunction of adverse remarks (item (iii), instructions have already been issued‑‑vide this Department's circular, letter NO.SJRIII (SP‑GAD)11‑2/73, dated the 9th June, 1973 that only one representation will lie and the decision taken on it would be absolutely final. The representation has to be submitted not later than one month from the date of communication of adverse remarks. Pro forma promotion‑ should be given only if the supersession of the official was based entirely on the adverse remarks which were later oh found to be unmerited and therefore, expunged. If there were any other factors going against the official or the adverse remarks were only partially expunged, pro forma promotion should not be granted."

14. The position in the year 1977 was the same and we are of the considered opinion that the Secretary, Local Government and Social Welfare Department was not competent to allow the second representation against the expunction of adverse remarks which was already rejected by the Government and was also not competent td review his earlier order. Thus, the Secretary, Local Government and Social Welfare Department has acted against the law and rules. It is well‑settled law as laid down by the Honourable Supreme Court of Pakistan reported as 1981 S C M R 244 that if the .law requires the matter to be done in a certain manner, it should be done in such a manner and none other.

15. We may observe here that the original file expunging the adverse remarks by the Secretary L3&SW Department has not been produced before us. The same has been withheld by the Department on the ground that the same was not traceable. The photostat copy duly attested by the Under Secretary issued by Mr. Javed Dastgir Mirza Section Officer‑V, for Secretary reads as under: "Government of the Punjab, Local Government Social Welfare and Rural Development Department. To Mrs. Aqeela Asghar Ali, Superintendent Mothers' and Children Home, Lahore. Memo: No.SOV‑SW‑II‑I‑39/73 Dated Lahore, the 11th July, 1977. Subject:‑ Expunction of Adverse Remarks. With reference to the above noted subject, kindly refer to your representation dated 22‑1‑1974. It is to inform that adverse entries contained in the A.C.Rs for the period 1972‑73 have been expunged. (Sd.) Javid Dastgir Mirza Section Officer‑V, for Secretary. Endst: No. Even., Dated 11‑7‑1977. A copy is forwarded for information to the Director, Social Welfare, Punjab with reference to letter No.SW(E)‑ACR/74/682, dated 24‑1‑1974. (Sd.) Javed Dastgir Mirza Section Officer V, for Secretary." As the original file has been withheld by the Department the possibility cannot be ruled out that the then Secretary LG&SW Department might have not passed the order expunging the remarks. In the absence of such file it cannot be looked into as what were the compelling circumstances under which the Secretary LG&SW Department, had to expunge the remarks when the representation to that effect had already been rejected by his predecessor. The withholding of the file also gives adverse presumption against the respondent as the Department appears to be all help for Mrs. Aquila Asghar Ali. The Department has produced before us the file containing the copies of several documents attested by the Under Secretary (Estt.) Government of the Punjab, SW& Zakat Department. The above referred letter issued by the Section Officer "for Secretary" also is not free from doubt. It refers to the representation of Mrs. Aquila Asghar Ali whereas it is manifested from the record that Mrs. Aquila Asghar Ali made second representation for adverse remarks in the year 1977. The file containing attested copies produced by the Department has been retained as a part of the file of appeal of Miss Khalida Khatoon Malik which shall be returned after disposal of the appeal by the Honourable Supreme Court of Pakistan if any.

16. In the light of the above discussion, we are of the considered opinion that the Secretary, SW&LG Department acted illegally and in contravention of rules and instructions having force of law. His order expunging the adverse remarks of contesting respondent Mrs. Aquila Asghar Ali is without jurisdiction and lawful authority, nullity in law and of no legal effect. The remarks expunged by him shall be deemed to have never been expunged in the eye of law. Legally the order of ~ Secretary LG & SW Department vitiates the pro forma promotion order of the contesting respondent Mrs. Aquila Asghar Ali. We have observed another illeg4.lity in the impugned pro forma promotion order. The contesting respondent Mrs. Aquila Asghar Ali could be allowed promotion on the basis of her service record prior to 1976. The record prior to relevant date contained as many as four adverse entries against her. We have gone through the working paper for the grant of pro forma promotion to Mrs. Aquila Asghar Ali wherein the Secretary, SW and Zakat Department has recommended that "she may be allowed pro forma promotion as her period of service after 1975 is good‑satisfactory." This also vitiates the pro forma promotion order of the respondents.

17. The next illegality observed in the pro forma promotion is that rules require as quoted above that the pro forma promotion could only be allowed if the entire adverse remarks were expunged and if the remarks were partially expunged, such officer/official was not entitled to pro forma promotion. In this case the remarks in the year 1975 were only partially expunged whereas the adverse remarks for the year 1965 stood intact while the adverse remarks for the years 1972‑73 were illegally expunged as discussed above. This is another factor which vitiates the impugned pro forma promotion

18. We have also observed that the plea of the appellants that the impugned order was managed by Mrs. Aquila Asghar Ali through fraud, misrepresentation and suppression of facts is not devoid of force. It is manifest from the record as well as attendant circumstances that the impugned order was managed through circumvention and the facts were deliberately suppressed. We have also appraised the working paper which does not mention the facts that the representation of Mrs. Aquila Asghar Ali for the expunction of adverse remarks was firstly rejected and later on the order was reviewed and her adverse remarks were expunged. We are of the opinion that if the facts were not camouflaged the Provincial Selection Board and the competent authority would have arrived at the different conclusion. It is well‑settled law that if the order is based upon fraud and misrepresentation it is no order in the eye of law and. can be interfered with and set aside without hesitation as laid down by the Honourable Supreme Court of Pakistan as reported P L D 1975 S C

331. While examining the file produced by the Department as mentioned above, we have observed a note of the Office regarding the facts of the case regarding pro forma promotion case of Mrs. Aquila Asghar Ali which is reproduced here under:‑ "FACTS OF THE CASE PERTAINING TO PRO FORMA PROMOTION CASE OF MRS. AQUILA ASGHAR ALI, DEPUTY DIRECTOR, SOCIAL WELFARE. In the pro forma promotion case of Mrs. Aqila Asghar Ali, Deputy Director, Social Welfare which is pending with the Government in which she has allegedly claimed pro forma promotion w.e.f. 4‑10‑1976. In such an eventuality the following two officers of the Department are liable to be adversely affected:‑

1. Miss. Khalida Khatoon Malik.

2. Mr. Muhammad Mushtaq. As a matter of fact she is not entitled under the rules to such promotion for the reasons given below: (i) That the above two officers were promoted in Grade 18 in the prescribed manner w.e.f. 4‑10‑1976 whereas Mrs. Aquila Asghar Ali was considered alongwith them and others for promotion in Grade

18. During the same year 1976, above two officers were promoted but she was not promoted on account of un‑satisfactory service record as per Notification No. SOV(SW)‑E‑1(108)/76, dated 4‑10‑1976. (copy enclosed). It tantamounts to supersession. (ii) She was again considered alongwith few others for promotion in Grade 18 during 1980 but this time her case was deferred on the ground that an Anti‑corruption inquiry case was pending against her before the Senior Special Judge Anti‑Corruption who punished her till rising of the Court as well as fine of Rs.2,

000. However,, this decision was set aside by the High Court in an appeal. (iii) Finally she was promoted in the prescribed manner by the competent authority w.e.f. 28‑8‑1982 vide Notification NO.SO(S)18‑35/81, dated 28‑8‑1982. After her rejection in ' 1976 she submitted representations for the expunction of adverse remarks for the years 1965, 1973 and 1975. These were the adverse remarks on the basis of which she was superseded during 1976. Against these representations, adverse remarks for 1973 were expunged by a successor authority which was not competent to re‑open the case as per Services General Admin1st ration and Information Department instructions NO.SOR‑IV(S&GAD)14‑?/73, dated 12‑1‑1984: It is specifically mentioned here that representations for expunction of adverse remarks for the year 1965, 1973 and 1975, had already been rejected by the competent authority. It is further submitted that adverse remarks for the years 1965 and 1975 are still on her A. C. Rs. At this stage further attention of kind officers is also invited to circular No.SOR‑IV(S&GAD)15‑3/84, dated 7th November, 1984 (copy enclosed) para. 2 of which clarifies that while considering the pro forma promotion case the record to be examined is upto the date from which pro forma promotion is claimed. Since she has claimed pro forma promotion w.e.f. 4‑10‑1976 upto which date she possesses two adverse remarks for the years 1965 and 1975, she has absolutely no case for pro forma promotion in 1976. It is, therefore, humbly submitted that while considering her, case, the above facts may kindly be kept in mind. In the above note the office correctly apprised the concerned authority regarding the factual position which is in consonance with our findings:

19. In the light of the foregoing discussion we accept the appeal of the appellants and set aside the impugned order and hold that the appellants are senior to Mrs. Aquila Asghar Ali, the contesting respondent. The respondents to bear the costs. (Sd.) Members MR. IHSANUL HAQ CH.AUDHRY (CHAIRMAN): 19. 1 have gone through the judgment of learned Members anal fully l agree with their views. However, I would like to emphasize certain legal, aspects of the matter further: A civil servant, who has suffered adverse entry in his A. C. R. has only one remedy at Departmental level. He can make a representation for expunction of adverse remarks. The decision of his representation is 'final order' for the purposes of appeal under section 4 of the Punjab Service Tribunals Not, 1974. This exhausts the jurisdiction of the Authority designated as Expunging Authority. The decision cannot be reopened thereafter at Departmental level under any provision of law, rules or instructions. The relevant instructions read as under:‑ Rule

42. Expunction of adverse remarks‑‑A person who is communicated adverse remarks can apply for the expunction of such remarks. But this should be done not later than one month from the date of receipt of the communication. The representation must be made in temperate and dignified language and no allegations of personal and malicious nature should be made indiscreetly and irresponsible allegations against Reporting Officers will result in disciplinary action. 42‑A. An officer/ official adversely reported upon will have only one right of making a representation and absolute finality would attach to the decision taken thereon, whether in favour of the officer or against. The decision on representation for expunction of adverse remarks should be taken within 90 days of the making of representation. The orders of the expunging authority will not be subject to review by the successor authorities."

43. All representations about expunction of adverse remarks will be made to the authority designated as expunging authority under these instructions. Provided that in cases where no expunging authority has been designated the representation shall be made to the authority next above the officer recording countersigning the remarks last of all. Provided further that where Governor is the initiating authority or the last countersigning authority a review petition shall be made to the Governor. 43‑A. If the appointing authority is the initiating authority/ countersigning authority of a Govt. servant reported upon representation against the adverse remarks may be made to the next higher authority."

20. Now coming to the case in hand Mrs. Aquila Asghar Ali in addition to other adverse reports, had to her discredit reports for the years 1972, 1973 and 1975. It is clear from the record that she availed the right of representation for expunction of these adverse remarks. The representations in respect of adverse reports for the years 1972, 1973 were rejected while representation in respect of remarks for the year 1975 was partially accepted. The said respondent, thereafter did not agitate the matter in any forum. This way she lost her remedy and the orders rejecting her representations became matter of past and a closed transaction.

21. The Government made the position clear vide Memo. No. SOR.III (S&GAD) 11‑2‑73, dated 9‑6‑1973.‑ The relevant portion reads as under: I am directed to say that cases have come to the notice of Government where the adverse remarks in the. annual confidential reports of officers have been expunged after the lapse of 15 or 20 years. In some cases the representations of the officers for expunction of remarks had been rejected by the authorities who had the occasion to see the performance of the officers and were, therefore in an Ideal position to determine whether or not the adverse remarks were justified. In spite of this the successor authorities have reviewed the earlier decisions and expunged spreading over a number of years by one sweep thus giving rise to claims o pro forma promotion. Government are of the view that this is not a judicious exercise of the discretion vesting in the expunging authorities and have taken the following decisions:‑ (i) The officers adversely reported upon will have only one right' of making a representation and absolute finality would attach to the decision taken thereon, whether in favour of the officer or against. The decision on representation or expunction of adverse remarks should be taken expeditiously, preferably within 6 months of the making of representation. The orders of the expunging authority will not be subject to review by the successor authorities." This clinches the whole issue. There is no scope, whatsoever, for review or a subsequent representation of any sort. This position was confirmed in the Notification dated 16‑10‑1973 issued, on the subject of grant of pro forma promotion. The learned Members have already reproduced the appellant relevant para in their judgment. This is not all. The case of the respondent for promotion as Deputy Director was not deferred but she was superseded on account of unsatisfactory record vide order dated 4‑10‑1976. Therefore, she lost her seniority over the appellants. It is needless to add here that her representation in respect of adverse reports for the years 1972 and 1973 had already been rejected and decision communicated to her through memos. dated 24‑5‑1974 and 30‑8‑1974. The respondent did not challenge this order in any forum.

22. The respondent, however, filed a second representation in respect of adverse remarks for the years 1972 and 1973. The same ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ Punjab Civil Establishment Code, Part 1, Vol. 1, 1987 page 442. was accepted by the then Secretary, Local Government and Social Welfare as Authority, vide order dated 11‑7‑1977, without bothering to the earlier decision, the competency of second representation and his authority to entertain and decide the‑ representation. As far as the issue of competency of repeated representations or representation not warranted by law is concerned, t have dealt this question at length in my judgment in the appeal of Qazi Ain‑ud‑Din v. Government of the Punjab and one other 1988 P L C (C.S.) 473 with reference to the decision of Hon'ble Supreme Court. The relevant portion of the judgment reads as under:‑ "The argument is without any merit for the simple reason that not only the final order has been passed but first representation of the appellant after due consideration was also dismissed on 9‑12‑1979. The repeated representations are not warranted by law. In this behalf I can refer to Government of Pakistan v. Bashir Ahmad Khan, reported as P L D 1985 S C

309. The relevant portion of the judgment reads as under:‑ "He challenged his first compulsory retirement through a review application filed on 23rd October, 1974, which was decided on 3‑6‑1975. This was the final order passed on review. It could be challenged within 30 days, before the Tribunal under section 4 of the Service Tribunals Act. If the appellant chose not to file an appeal but only to repeat a representation before the same authority who had decided the review, that by itself would not give him another cause of action to file an appeal under section

4. The period spent in making the representation this second or any other representation after the decision of the review application, could not be excluded as of right in counting the period of limitation." The other relevant portion of the judgment reads as under:‑ "Same would apply to the appeal arising out of the second compulsory retirement. The review petition filed by the respondent, in that behalf was decided on 13‑6‑1978. Instead of filing an appeal before the Tribunal under section 4 within 30 days of this final order passed on review, he made another representation which caused further delay. The period consumed during the processing of the subsequent representation could not be excluded as of right. And there being no condonation on any good ground by the Tribunal, the appeal filed on 14‑1‑1978 was clearly time‑barred and should have been dismissed accordingly." There is yet another decision of the Supreme Court in Shafaat Ahmad and others v. Government of Punjab and 2 others, reported as 1986 S C M R

30. This decision of the Supreme Court fully covers the proposition involved in the appeal in hand. The relevant portion of the judgment reads as under:‑ "There could be three objections to the competency of the appeal including the ground of limitation. The first was that against the order of the Governor no representation at all lay. Therefore, all the time taken in filing the representation, in awaiting its disposal was a time wasted and not condonable. Secondly even where a right of appeal or representation exists it implies one such right and not its repeated exercise. As the order relied upon for extension of limitation is not referable to the first representation but to subsequent one the right of appeal under section 4 of the Tribunal Act came to an end with the filing of first representation and expiry of the period prescribed under section 4 of the Punjab Service Tribunals Act. The third ground is that undue influence and pressure was alleged against Mr. Alimuddin, Secretary Irrigation for avoiding the undertaking. Not only that no such grievance was ever expressed against the officer in any of the representations he was not personally impleaded in the appeal to answer the allegation." In this view of the matter I hold that this appeal is not competent. Now I come to the limitation. The final order having been passed on 23‑4‑1979 and in any case the order dated 8‑12‑1979 concluded the matter once for all. But the appellant still went on making the representations. The appellant still chose not to file an appeal but only to repeat representations, which still not give him fresh cause of action to file an appeal under section 4 of the Service Tribunals Act. This has been clearly held in Government of Pakistan v. Bashir Ahmad Khan's case and I have reproduced the relevant portion while discussing the competency of the appeal. Similarly the case of Shafaat Ahmad and others, as referred to and relevant part of the judgment of Supreme Court as reproduced also directly confirms my views. There is yet another decision of the Supreme Court in case Zia Mohiuddin Khan v. Secretary General Finance and 4 others, reported as 1986 S C M R 782 fully clinches the point under discussion. The relevant portion of the judgment is reproduced as under:‑ "This was a second representation and the Tribunal was, therefore, right in not permitting the petitioner to take advantage of it because section 22(2) of Act LXXI of 1973 does not permit a number of representations to be made. We, therefore, agree with the Tribunal that the appeal before it was barred by time and consequently decline to interfere with its order and, therefore, dismiss the petition and decline to grant leave to appeal."

23. I, of course, after going through the judgments of Hon'ble S.C. in cases of Bashir Ahmad, Shafaat Ahmad and Zia Mohyuddin Khan and the relevant instructions, find no difficulty to conclude that there is absolutely no scope for second representation for expunction of remarks before the Departmental Authorities. The order passed thereon is, therefore, absolutely void and without jurisdiction.

24. The other question whether this Tribunal can examine the legality or validity of subsequent orders passed on second representation for expunction of remarks? The orders being void ab initio, without jurisdiction, patently unjust and unlawful, we, therefore, are fully justified to ignore the same instead of perpetuating the illegality by accepting the order as furnishing valid basis for pro forma promotion. We are fortified in our view by the order of the Supreme Court in case of Nawab Syed Raunaq Ali etc. v. C.S.C. and others reported as P L D 1973 S C

236. This decision was followed by their lordships of the Supreme Court in case of Mr. Noor Muhammad v. Member, Election Commission, Punjab, reported as 1985 S C M R 1178. Relevant portion of the judgment reads as under:‑ "The learned counsel for the petitioner, however, submitted that the vires of the order, dated 19‑10‑1983 passed by the Departmental authorities in a service matter could not be questioned in collateral proceedings like an appeal before the election authorities. This contention too has no force. This Court in Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others P L D 1973 S C 236 clearly observed:‑ "It is now well‑established that where an inferior tribunal or Court has acted wholly without jurisdiction or taken any action "beyond the sphere allotted to the tribunal by law and, therefore, outside the area within which the law recognises a privilege to err" then such action amounts to a "usurpation of power unwarranted by law" and such an act is a nullity; that is to say, "the result of a purported exercise of authority which has no legal effect whatsoever". In such a case, it is well‑established that a superior Court is not bound to give effect to it, particularly where the appeal is to the latter's discretionary jurisdiction. The Courts would refuse to perpetuate, in such circumstances, something which would be patently unjust or unlawful. The order of the Superintending Engineer, dated 19‑10‑1983 purporting to give retrospective effect to his order with effect from 29‑7‑1981 was patently unlawful and, in fact, void in the relevant regard. Hence it could not be given effect and the Election Commission could refuse to accept and perpetuate it."

25. I, before parting with the judgment, would like to record my observations. The Authority should not have lost sight of the fact that bad precedent spreads like wild fire and completely demolishes the concept of efficient and honest civil servant. No Court can give its blessing to such a precedent which is against law, rules or instructions. It will not be difficult for the aggrieved civil servants to wait even for a decade or so to have in chair authority‑of their own choice to get things done favourably. We have noted that there; is a general tendency to be more obliging towards end of career as civil servant. Such accommodation is shown unmindful of its consequences on the entire service structure and net loss to be sustained by the Exchequer as result thereof. Ours is an Islamic State and we should all bear in mind that we are not only responsible under the E & D Rules to Government but also to the Almighty Allah. They may avoid or escape action by Government for variety of reasons but cannot escape the liability of misdeeds on the Judgment Day. It is difficult to be just and fair in one's dealings with his subordinates inter se and the matters affecting the Government and public until and unless one is mindful of the Dooms Day.

26. We might have ignored this aspect but the number of cases coming to our notice is so large that we are constrained to bring our observation on record. In one or two cases, the loss suffered by Government amounted to lass of rupees and we were informed that the concerned civil servant had retired years back, whereas action could have been initiated against him under the Rule 1.8 of the Pension Rules within one year of his retirement. The relevant portion of the rule reads as under:‑ "Government reserve to themselves the right of recovery from the pension of a Government pensioner on account of losses found in judicial or departmental proceedings to have been caused to Government by the negligence or fraud of such Government pensioner during his service, provided such departmental proceedings shall not be instituted after more than a year from the date of retirement of the Government pensioner. " It is, therefore, desirable to consider amendment of Pension Rules so as to enhance this limit. It is necessary to curb the tendency which is on tremendous increase to oblige some persons at the cost of Exchequer and others.

27. The result is that both these appeals are allowed and the main. notification dated 24‑8‑1987 is set aside. S.Q/199/Sr.P?????????????????????????????????????????????????????????????????????????????????????? Appeals allowed.