1993 PLP (C (PLC(CS))

"(2) The Provincial/Regional quotas do not apply to posts filled by promotion. These are applicable to direct, including lateral entry, appointments."

5. It was submitted by the learned counsel for the appellant that in view of the facts stated above it is a dear case of discrimination against the appellant. He has been prevented from receiving his due share of promotion in view of the fact that he was recommended for promotion by the Central Selection Board whereas his junior Mr. Nasim Sabir Syed was promoted without even having been recommended by the Board. His case was referred back for reconsideration without assigning any reason whereas his record of service and blood count were better than the others and lastly the Provincial/Regional quota was allowed to operate despite the fact that it is not applicable to posts filled by promotion as given in serial No. 29, 2(2), 1983 ESTACODE Edition, quoted above. However, it was submitted that the appellant's case was duly reconsidered by the Central Selection Board in its meetings held in November 1990, and he has since been promoted to BPS‑21 with effect from 21‑11‑1990. The Hon'ble Supreme Court has time and again laid down the need‑to avoid discrimination against the civil servants in the matter of promotion. Reliance in this respect was placed on judgments at 1981 PLC (CS) 483, 1984 PLC (CS) 115 and 1984 PLC (CS) 754.

6. In view of the above facts it was strongly contended by the learned counsel for the appellant that since the appellant's case was merely referred back for reconsideration by the Central Selection Board without assigning any reason and without giving any remarks like "deferred" or "superseded" he was promoted on the recommendation of the next Selection Board on the basis of the same record which was presented to the Selection Board during its meeting in October, 1989. It was, therefore, strongly contended that in view of the above facts the appellant was entitled to be assigned seniority with his original batch (the officers who were promoted as a result of Central Selection Board's meeting held on 16‑10‑1989) i.e. with effect from the date of promotion of Mr. Mukhtar Ali Khan, his junior, vide notification dated 2‑4‑1990.

7. The learned counsel for the Respondent‑Department resisted the contention advanced by the learned counsel for the appellant. It was strongly contended that the present appeal is barred by limitation as well as by section 4(1)(b) of the Federal Service Tribunals Act, 19/3. It was submitted that the present appeal was based primarily on the news item dated 18‑2‑1990. The Gazette notification of the promotion of Mr. Mukhtar Ali Khan was published on 2‑4‑1990. The appellant failed to base his departmental appeal on the said notification. The news item cannot be made a base of a departmental appeal. It cannot, therefore, be said that his appeal, dated 19‑2‑1990 was a departmental appeal as required under section 4(1)(a) of the Federal Service Tribunals Act. Also, as the departmental appeal was not submitted within thirty days of the notification dated 2‑4‑1990 the same is, therefore, heavily time‑barred.

8. The learned counsel for the respondent‑Department submitted that the recommendations of the Selection Board are not binding on the competent authority and it is also within the discretion of the competent authority to refer the case back to the Selection Board for further consideration. In the case of the appellant his name for promotion was referred back vide serial No. 189 (b), referred to above. There was, therefore, nothing against the law.

9. Regarding the inclusion of the name of Mr. Nasim Sabir Syed the appellant never agitated this matter in his appeal, dated 19‑2‑1990. He is, therefore, not entitled to challenge his promotion at this stage.

10. It was further submitted that the prayer of the appellant is also very vague and he has not clearly prayed for any particular relief with regard to either assigning him the seniority with effect from the date his junior, Mr. Mukhtar Ali Khan, was promoted or for non‑compliance of any rules with regard to his promotion to BPS‑

21. In view of this it was strongly contended that the present appeal be dismissed being incompetent, heavily time barred and having no merit.

11. We have heard the arguments from both the parties and perused the record presented to us carefully. In view of the preliminary objection raised by the learned counsel for the Respondent‑Department regarding the maintainability c:' the appeal we agree that the appellant preferred his appeal on 19‑2‑1990 in big haste basing it on the news item published in the daily newspapers. However, we are of the considered view that the publication of the notification, dated 2‑4‑1990 regarding the promotion of his junior, Mr. Mukhtar Ali Khan, did not alter the situation in any way. In fact, it only confirmed his information on which he had based his representation. It has also been borne out from the record produced before us, that the name of the appellant was referred back for reconsideration by the competent authority. The record also indicated that the appellant was not either "deferred" or "superseded" on the recommendations of the Selection Board. As a result of further consideration by the Selection Board held in its meeting in November, 1990 which was based on his unaltered previous record, he was once again recommended for promotion to BPS‑

21. The competent Authority approved his name this time. He has since been promoted to BPS‑

21. This means that he is entitled to the seniority in BPS‑21 as that of his original batch i.e. alongwith his junior, Mr. Mukhtar Ali Khan, with effect from 2‑4‑1990. The genuineness of the request made by the appellant to regain his seniority with effect from 2‑4‑1990 cannot be denied to him. His prayer, as argued by the learned counsel for the Respondent‑Department, is although not properly worded yet it certainly conveys his request in no uncertain terms. We agree that the present appeal is badly worded and is not well up to the legal standards but we are of the firm view that substantially it is maintainable under the law. His departmental representation, dated 19‑2‑1990 was never rejected as unlawful. In fact it remained unresponded. The fact of his next junior's promotion was never controverted. In view of this, we feel it is a fit case to condone the delay, which was due to mainly understandable state of anxiety under which the appellant was placed and he submitted his first representation on 19‑2‑1990. We are; therefore, of the considered opinion that it will not be in the interest of fairplay and justice to deny the appellant his substantial right to regain his seniority from the date his junior, Mr. Mukhtar Ali Khan, was promoted to B‑21.i.e. 2‑4‑1990 purely on technical grounds. The bar of limitation is, therefore, rendered inapplicable in this case.

12. As a result the present appeal before us succeeds as indicated above and the appellant is considered to regain his seniority in B‑21 with effect from 2‑4‑1990 when his next junior, Mr. Mukhtar Ali Khan, was promoted to BPS‑21.

13. Before we part, we would, however, like to observe that the case of Mr. Nasim Sabir Syed who was promoted by the competent Authority without the recommendation of the Selection Board, is indeed legally untenable. This is a mandatory requirement as laid down in Establishment Manual Volume Il, Chapter XX, Section A para. 5 and Sl. No. 12, para. 2(b). We hope that the respondents would take measures to have his promotion regularised as soon as possible. Also, in future respondents would ensure that such irregularities are not allowed to occur in the interest of fairplay and justice.

14. No order as to costs.

15. Parties to be informed accordingly. RASHEED‑UD‑DIN ARSHAD (MEMBER).‑‑‑

16. I have had the benefit of going through the order written by the learned brother.

17. So far as the issue as to whether the departmental appeal was competent or not attention is invited to the Office Memorandum sent by the Establishment Division to Central Board of Revenue on 19‑2‑1990 which reads as under: ‑‑ "Government of Pakistan Cabinet Secretariat Establishment Division No. 1/4/89‑CP.7 Islamabad, the 19th February, 1990 Subject:‑Promotion of Officers of the Income Tax Group from BPS‑20 to BPS‑21: The undersigned is directed to refer to the Central Board of Revenue's summary under No. 2(4)/82‑AI‑AIT‑I, dated 12th November, 1989 on the above subject and to convey the approval of the competent Authority to the pr(4motion a~ the following officers to posts in BPS‑21 in the Income‑tax Group wit? immediate effect: ‑‑ (1) Mr. Makhtar Ali Khan (2) Syed Abu Naseer. (3) Mr. Nasim Sabir Syed.

2. The CBR had conveyed five vacancies in BPS‑21 whereas the competent authority has been pleased to approve promotion against four vacancies. Orders in respect of one more officer will be conveyed soon. Regarding the remaining one vacancy, the competent authority has been pleased to desire that the Central Selection Board should reconsider the case. The Central Board of Revenue are therefore requested to please take necessary action accordingly. (Sd.) Tasneem Haider Section Officer. Central Board of Revenue, Mr. Ghulam Yazdani Khan, Chairman, Islamabad. The approval of the competent authority to promotion of Mr. Mukhtar Ali Khan, Syed Abu Naseer and Nasim Sabir Syed had thus been conveyed on 19‑2‑1990. It has been noted that the appellant submitted departmental appeal to the Prime Minister on 19‑2‑1990. The departmental appeal was, therefore, within time. The appellant did not receive any reply to the departmental appeal. The appeal submitted to the Tribunal on 21‑5‑1990 is, therefore, also within time and competent.

18. I agree with the decision recorded by my learned brother. A.A. /667/Sr. F Appeal accepted.