1994 PLP (C (PLC(CS))

‑‑‑‑S. 4‑‑‑Appeal‑‑‑Employee who was working as Assistant Solicitor, had challenged in appeal notification whereby Additional District and Sessions Judge, was appointed as Deputy Solicitor on deputation‑‑‑Employee had alleged that the very appointment of Deputy Solicitor on deputation was contrary to Recruitment Rules as person concerned was not fit to be appointed on deputation and it was right of persons already working in the Department for promotion‑‑‑On representation made by employee to Establishment Secretary same was examined and Establishment Division vide office memorandum addressed grievance of employee considering that appointment of Deputy Solicitor on deputation was irregular ab initio‑‑‑Employee in appeal before Tribunal had prayed that said office memorandum of Establishment Division, be implemented‑‑‑Employee in his appeal had not impleaded person who was appointed as Deputy Solicitor as party‑‑‑Employee otherwise had no grievance as he was not eligible for .promotion as there were other officers senior to him who were also not made party in appeal‑‑‑Appeal was filed by appellant/employee two years after appointment of Deputy Solicitor, despite the fact that appellant being working in same Ministry was fully aware of such appointment‑‑‑Appellant in circumstances, was not eligible for promotion as two officers were senior to him‑‑‑Appeal filed by appellant, otherwise, was not maintainable as he had not impleaded necessary parties in appeal and appeal was hopelessly time‑barred. PLD 1975 Kar. 373; 1986 SCMR 860; PLD 1980 SC 961; PLD 1973 SC 964; PLD 1972 Lah. 847; The Chairman, PIAC and others v. Nasim Malik PLD 1990 SC 951 and AIR 1973 SC 964 ref. Appellant in person. Faqir Muhammad Khokhar, Dy. Attorney‑General and Sheikh Riazul Haq, Standing Counsel for the Government. JUDGMENT ABDUL RAZZAQ A. THAHIM (CHAIRMAN).‑‑‑The facts of this case are that the appellant is working as Assistant Solicitor in the Law and Justice Division since 4‑1‑1986. He has preferred this appeal to challenge the notification dated 26th December, 1990 whereby Mr. Syed Masood‑ul‑Hasan Shah, Additional District and Sessions Judge, Rawalpindi has been appointed as Deputy Solicitor in BPS‑19 on deputation in the Law and Justice Division for a period of three years. The contention of the appellant is that the very appointment of Mr. Masood‑ul‑Hassan Shah is contrary to Rule 5 of the Recruitment Rules which may be declared null and void as the person concerned was not fit to be appointed on deputation and it was the right of the persons already working in the department for promotion. The appellant made representation to the Establishment Secretary, through proper channel, with advance copy sent to the Establishment Division. The Establishment Division examined the representation vide Office Memorandum No.l/139/89‑E.4, dated 25th October, 1992, addressed to the Law and Justice Division, and held as under:‑‑ "The undersigned is directed to refer to the representation submitted by Mr. Ali Khan Subhopoto, Assistant Solicitor, on the above subject dated‑29‑8‑1992 and an advance copy forwarded to this division. The examination of the representation shows that appointment of Syed Masood‑ul‑Hasan Shah, Additional Sessions Judge (BPS‑18), Government of Punjab as Deputy Solicitor (BPS‑19) in the Law and Justice Division on deputation basis was irregular ab initio, as the method of appointment prescribed in the Rules were not fully exhausted before resorting to the method of deputation used to fill the post. The division may, therefore, like to take further necessary action at their end. (Sd.) M. Hashim Leghari, Deputy Secretary. Tele: 817032." The appellant has come with the prayer that this office memorandum of the Establishment Division be implemented, as the appointment of Mr. Masood ul‑Hasan Shah is in violation of Rule 5 of the Recruitment Rules. He has also prayed that necessary orders be issued to the respondents that the said post may be filled in according to the provisions of the Recruitment Rules.

2. The comments have been filed by respondent No.2, the Secretary, Law and Justice Division. The Establishment Division has not filed comments but his representative Mt. Zakaullah Jan, Section Officer was present at the time of hearing of appeal.

3. The appellant who argued his case himself, was heard at length. His contention is that the very appointment of Mr. Masood‑ul‑Hassan Shah is contrary to the rules and this Tribunal is competent to get the advice of the Establishment Division implemented and the Law and Justice Division be directed to repatriate Mr. Masood‑ul‑Hassan Shah back to his parent department and those who arc working in the department be considered for promotion against that post according to the provisions of the Recruitment Rules. He has referred to PLD 1975 Kar. 373 that under section 21 of the General Clauses Act this Tribunal is competent to issue the requisite direction to the Law and Justice Division.

4. Mr. Faqir Muhammad, Khokhar, learned Deputy Attorney‑General appeared on behalf of the respondents. He argued that the appeal is not maintainable as the appellant has not impleaded the concerned person Mr. Rlasood‑ul‑Hassan Shah as a party, the appellant has no grievance as he is not eligible for promotion and there are other officers senior to the appellant and they are also not a party in this appeal. He hens referred to the cases 1986 SCMR 860; PLD 1973 SC 964, PLD 1972 Lah. 847 and PLD 1980 SC 961 and also submitted that appeal is time‑barred on this ground that Mr. Masood‑ul- Hasan Shah was appointed in the year 1990 and representation was filed in 1992.

5. We have gone through the record and perused the comments filed by the Law and Justice Division and find that appointment of Mr. Masood‑ul -Hassan Shah was made by Notification, dated 26th December, 1990 in pursuance of the Establishment Division under Order No.F.l/206/90‑E‑4, dated 24th December, 1990. The appointment of Mr. Masood‑ul‑Hassan Shah was approved by the competent authority on the reference of the Law and Justice Division contained in their D.O. No.F.l(2)/87‑AI, dated 16th December, 1990 and this approval was communicated to the Law Division vide Establishment Division on dated 24‑12‑1990. Therefore, it cannot be said that appointment of Mr. Masoodul‑Hassan Shah is without lawful authority. Now we proceed to dilate upon the objection raised by the learned Deputy Attorney‑General. The appellant has himself admitted that he is not eligible for appointment to the post of Deputy Solicitor at this stage as two other persons namely Raja Noor Khan and Mr. Rehman Shah, who are also working in BPS‑18, are senior to him. The appellant has not impleaded them as party. Moreover, his grievance is against Mr. Masood‑ul‑Hassan Shah, but he has also not been impleaded as party in this appeal. 1n the case of Muhammad Iqbal Rafi and 2 others v. The Province of Punjab 1986 SCMR 650, it has been held that those who were to be affected were not made party, therefore, this failure of non‑impleading necessary parties is fatal to their case.

6. The appointment of Mr. Masood‑ul Hasan Shah was made in the year 1990 when the appellant is also working in the same Ministry and he was fully in the know of this fact. He did not challenge that appointment till 1992 when be made a representation and sent advance copy to the Establishment Division. He has not been able to explain delay of about two years for not filing any representation. He has also not filed any application for condonation of delay under section 5 of the Limitation Act. The claim of the appellant is, therefore, time‑barred, for the reasons that the appellant for the first time made a representation/appeal dated 8‑11‑1992 addressed to the Federal Minister for Law and Justice, which was not replied to, and thereafter he preferred this appeal on 21‑2‑1993. As held by the Supreme. Court in the case of the Chairman, PIAC and others v. Nasim Malik PLD 1990 SC 951, that since the departmental appeal was itself time‑barred and there being no final reply to that appeal, the appeal filed before the Tribunal was also time‑barred. In these circumstances, the appeal filed on 21‑2‑1993 is patently time‑barred and fait on this ground as well.

7. Under section 4 of the Service Tribunals Act, 1973 only an "aggrieved" civil servant can approach the Tribunal for redress of his grievance. There is no dispute that there are two more officers senior to the appellant who are also eligible for promotion, and as such, the appellant having a junior position, cannot lay claim for claiming promotion over the head of his seniors. Therefore, he is not an aggrieved person as to have invoked jurisdiction of this Tribunal, and this view is in consonance with the judgment of Lahore High Court in the case of Ch. Muhammad Yunus v. Islamic Republic of Pakistan PLD 1972 Lah. 847, wherein it has been held that an aggrieved person must be a man against whom a decision has been pronounced which has wrongfully refused him something which he had a right to demand; and that is not the case of the appellant. Similar view has been taken in care of Dr. Umakant Saran v. State of Bihar and others AIR 1973 SC 964, wherein it has been held that while respondents were eligible for appointment as lecturers and the petitioner‑appellant was not and, therefore, he could not be regarded as aggrieved for the purpose of issue of mandamus for setting aside the appointments of the respondents.

8. To sum up, we are of the view that the appellant is not an aggrieved person. He cannot seek declaration for implementation of the advice of the Establishment Division from this Tribunal as it has not violated the terms and conditions of the appellant and Establishment Division has no such grievance The appellant is not, for the present, eligible for promotion as two officers are senior to him. He has not impleaded necessary parties in appeal. The appeal is also hopelessly time‑barred. Therefore, on these legal points, this appeal fails and is accordingly dismissed, with no order as to costs. H.B.T./864/Sr.F Appeal dismissed.