1991 PLP (C (PLC(CS))

CH. HASAN NAWAZ (MEMBER).

On 8-10-1981, the appellant joined the Accounts Officers' Office in the Directorate of Telegraphs & Telephones, Lahore under orders of the Director-General (respondent No. l) conveyed through telegram No. DG-PS-1-1/81, dated 3-10-1981, on transfer from the office of A.O.T.R. Gujranwala where he was working as Junior Clerk. Order dated 3-10-1981 said that his transfer had been effected in the interest of service.

2. On 8-3-1984, he was promoted as UDC with the following order: O.O. No. Admn/T&T/A/Cs/EA-II/27-83/276, dated: 8-3-1984 The Director, T & T Accounts, Lahore has been pleased to promote Rana Muhammad IIyas, L.D.C. to U.D.C. w.e.f. 15-12-1983 against 20% quota of seniority-cum-fitness. Authority: Director, T&T Accounts, Lahore orders dated 8-3-1984. (JEHANGIR AZIZ) Deputy Director, T&T Accounts, Lahore."

3. It appears from the record that some dispute regarding the appellant's seniority in the office of Director Telegraphs & "telephones Lahore came about during the course of appellant's service in that office and a reference was made to the Director-General by letter No. Admn./T&T-A/Cs/E-A/IV/310, dated 30-6 1983. In response, the Director-General's Office informed through letter No. STAFF (I), 35-10/81, dated 24-8-1983 that the appellant's transfer had been effected by the Director-General himself in the interests of service. The letter further said that the Director-General's orders were very clear and that his seniority as LDC/JAC shall be fixed in the gradation list according to rules.

4. The appellant was reverted to his original post of LDC by order dated 11-2-1985, which was to the following effect: "OFFICE OF THE DIRECTOR TELEGRAPHS AND TELEPHONES ACCOUNTS, LAHORE O.O.No. Admn/T&T/A/Cs/198, dated 11-2-1985 Rana Muhammad Ilyas, UDC G.P.F-IV has been reverted as L.D.C. with effect from 7-2-1985 on the basis of re-fixation of seniority and Mr. Ghulam Muhammad-II S/o Mr. Manzoor Ali Khan LDC promoted as UDC with effect from 7-2-1985. Authority: Director's orders dated 7-2-1985 at para. 6-N. (Sd. ) (ASHIQ ALI BHATTI) Accounts Officer (Admn.):"

5. On reversion, his pay was re-fixed by the competent authority with the following order: O.O.No.Admn/T&T-A/Cs/EA-11/54-81.655. Dated 12-6-1985. The pay of the following official is being refixed on his reversion from A/cs Clerk B-7 to A/cs Clerk B-5 vide No. Admn/T&T-A/Cs/198, dated 11-2-1985 as below: Name of the official Pay in B-7 Rs.560-231020 as A/cs. Clerk (UDC) Date of reversion Pay refixed in B-5 Rs.520-18 880 as J.A.C. Mr. Rana Muhammad Ilyas Rs.698 7-2-1985 Rs.664 Date of Increment: 1-12-1985 Authoirty: Director T&T Accounts, Lahore orders dated 12-6-1985. (Sd.) Accounts Officer (Admn)"

6. He filed a departmental appeal against the order of his reversion to the Director-General which was rejected with the following order: "PAKISTAN TELEGRAPH AND TELEPHONE DEPARTMENT OFFICE OF THE DIRECTOR GENERAL No. STAFF (I).35-10/81 Islamabad the 3rd August, 1985. Subject: TRANSFER OF MR. MUHAMMAD ILYAS RANA LDC/JAC OF THE OFFICE OF THE A.O.T.R. GUJRANWALA TO DIRECTOR T&T A/Cs, LAHORE Reference your letter NoAdmn/T&T-A/Cs/EA-IV/427, dated 8-5-1985 on the subject cited above. The decision made by the Director T&T Accounts, Lahore holds good, as the official is not entitled for his transfer from A.O.T.R. Gujranwala to Director T&T Accounts, Lahore in the interest of service. The official has applied for his transfer vide General Manager CTR Lahore letter NO.Admri.CTR/E I/GJR/65, dated 29-9-1981. Since there involves no public interest the official cannot be given benefits of seniority. (Sd. ) (ASSTT: DY. DIRECTOR-GENERAL (STAFF)"

7. The Director General's order rejecting his departmental appeal was conveyed to the appellant through letter dated 29-6-1985. It is as under: OFFICE OF THE DIRECTOR, TELEGRAPH & TELEPHONE ACCOUNTS, LAHORE NoAdmn/T&T-A/Cs/EA-11/928. Dated 26-9-1985. To Mr. Muhammad Ilyas Rana, Junior Accounts Clerk, G.P.F-IV, Section (Local). Subject: TRANSFER OF MR. MUHAHMMAD ILYAS RANA, J.A.C. FROM THE OFFICE OF THE ACCOUNTS OFFICER, TELEPHONE REVENUE, GUJRANWALA TO DIRECTOR, T&T, ACCOUNTS, LAHORE It is intimated that your appeal regarding undue and unlawful reversion was sent to the Director-General, Telegraph & Telephone, Islamabad. The D.G., T&T Office has, upheld the decision of this office as you were not transferred in the interest of service from A.W.R. to this office. Hence question of benefit of seniority cannot arise. Copy of decision a communicated by D.G., T&T, Islamabad is enclosed for information. (GHIAS-UD-DIN KHURSHID) ACCOUNTANT ADMN: SECTION."

8. The rejection of departmental appeal brought him to the Tribunal with the present appeal under section 4 of the Service Tribunals Act, 1973 with the prayer that order dated 11-2-1985 reverting hid to his original post of Junior Accounts Clerk may be set aside. The defence, in the main is, that the appellant was transferred to the office of Director Telegraphs & Telephones, Lahore on his own request and that he could not be given seniority over those Junior Accounts Clerks who had already been working in that office at the time of his transfer. It was pleaded that the seniority of employees from B-1 to B-15 is maintained separately under terms and conditions prescribed in the Finance Division's letter No.F-6(1) Exp-11(A)/80-563, dated 28-12-1980 (Annexure-D) and that under Rule 38 of the P&T Manual Volume IV, he had to be placed at the bottom of the seniority list of Junior Accounts Clerks maintained in the Directorate of Lahore.

9. In view of the aforementioned facts, the only point for determination in this appeal is whether the appellant was transferred from the office of Director Telegraphs & Telephones Lahore in the interest of service or on his own request. There is no dispute about the fact that in case his transfer had been ordered on his own request, he was to be placed at the bottom of the seniority list under rule 38 of the T&T Manual Vol. IV which says that transfers of officials when desired for their own convenience should not be discouraged if they can be made without injury to the rights of others. The rule further lays down that as however, it is not possible to import an outsider into a new cadre without injury to the other members of the cadre, such a transfer should not ordinarily be allowed except by way of exchange. It is also in the rule that an official transferred to another cadre at his own request but without arrangement for mutual exchange should take the lowest place in that cadre.

10. Reliance on behalf of the appellant has been placed on the order of transfer dated 3-10-1981 which said that it was being made in the interest of service. Reference was also made, during the course of arguments by his learned counsel of letter dated 24-8-1983 which has already been detailed in the facts, clarifying that the transfer had been made by the Director-General in the interest of service and that the appellant's seniority in the gradation list should be fixed in accordance with the rules.

11. Irrespective of what was conveyed by the Director General's office through letter dated 24-8-1983, we feel that the correct position must still be ascertained on the basis of evidence on record in the interests of justice. On the appellant's representation to the Director-General comments were made on invitation through letter dated 8-5-1985. The Directorate's version was that his reversion was brought about under the rules on the basis of a decision made on the representation of Mr. Nisar Ahmad UDC. It was further stated that his contention was without any basis and that acceptance of his representation will disturb the seniority of other officials causing injustice to them. It was on the basis of comments made by the Director that the appellant's appeal was rejected.

12. The respondents have placed on record, representation dated 27-9-1981 which purports to have been addressed by the appellant to the Director-General where it was requested that he "may kindly be transferred at Lahore in the office of Director T&T Accounts Lahore." The ground in support of the request was that his parents were old and no male member of the family was there to look after them and that his family entirely depended upon him. It was further stated that he was facing great difficulty in looking after his family due to posting at Gujranwala. It is also in the representation that he had asked for his transfer from Gujranwala to Lahore on many occasions in the past through letters dated 13-8-1978, 16-1-1979, 20-9-1979, 2-3-1980 and 10-9-1981. The record shows that on this representation it was ordered by the Director General on 3-10-1981 that the needful may be done forthwith on the compassionate grounds. It was in compliance that the orders of his transfer were issued by the office on the same date.

13. It has not been denied by the appellant that he made representation dated 27-9-1981 asking for his transfer to the Directorate at Lahore. There is also no denial of the fact that he had been making representations ever since the year, 1978 to get himself transferred to Lahore. We feel that there is absolutely no reason whatsoever why his appeal in writing dated 27-9-1981 should not be taken as a conclusive proof of the fact that his transfer to Lahore was ordered by the Director-General on his own request. He has not made any mention of his request in the grounds of appeal and we feel no hesitation in saying that he has not come to us with clean hands. He has tried to conceal a fact which was material for the determination of the point regarding his seniority and we hold that he is not entitled to any relief. There are reasons to believe that order dated 3-8-1981 mentioning that the transfer was being effected in the interest of service was contrived by him to serve his interests. In any case, the order of transfer conveyed through telegram dated 3-10-1981 and subsequent letter dates 24-8-1983 by way of clarification were by no means true representation of the Director-General's order, which said that the transfer may be effected on compassionate grounds.

14. Merits apart, the present appeal does not appear to have been filed within time. In the first place, there is no proof of the fact that departmental appeal addressed to the Director-General was made within time. The order of his reversion was passed on 11-2-1985. No date has been mentioned under the departmental appeal. Even in the grounds of appeal it has not been mentioned as to when it was filed. This being so, there is no justification whatever for believing that it was filed within 30 days of 'the communication of the order of reversion dated 11-2- 1985. Since the departmental appeal was filed after expiry of the period of limitation under the rules, the appeal is liable to dismissal on the authority of Supreme Court's ruling in 1989 S C M R 174.

15. Leaving aside the aforementioned circumstances, the appeal is even otherwise time-barred. The order rejecting the departmental appeal was conveyed to the appellant through Directorate's letter dated 24-9-1985. The appellant's case is that it was received by him on 16-11-1985. Apart from his own affidavit, no evidence has been produced to show that it had been so received on that date. We are of the opinion that he should' have produced some evidence other than his own affidavit to establish that he received the Directorate's letter dated 24-9-1985 as late as on 16-11-1985. In the absence of any such evidence we are inclined to hold that letter dated 24-9-1985 must have been received by him within a reasonable time in due course and that the appeal filed on 15-12-1985 was not within time.

16. A few words about the appellant's application under Order I Rule 10 of the Code of Civil Procedure for impleading Mr. Ghulam Muhammad II son of Manzoor Ali LDC as party, on the ground that he was promoted on his demotion', and that his rights were adversely affected in case the appeal is accepted. We have held in the preceding paragraphs that the appeal is without substance on merits and time barred. Under the circumstances, we do not think the presence of Ghulam Muhammad as party in this appeal is necessary for final and effective adjudication of the matter. The application is, therefore, dismissed.

17. For the reasons given above, the appeal is dismissed as being time barred and without any substance. There will, however, be no order as to costs.

18. Parties to be informed. M.Y.H./614/Sr.F Appeal dismissed.