1984 PLP (C (PLC(CS))

ABDUR RASHID (MEMBER).‑The appellant joined the erstwhile Pakistan Military Lands and Cantonment Service after qualifying the 1963 compe titive examination. He was promoted vide the Ministry of Defence Gazette notification No. 1329/74, dated 14th June, 1974, which is reproduced: "Mr. Khadim Hussain Malik, Military Estates Officer (a Grade‑18 Officer) is appointed on acting promotion basis to Grade‑19 as Deputy Director, Military Lands and Cantonments, till one of his seniors is cleared for promotion on a regular basis."

2. A seniority list of officers of Military Lands and Cantonments Department (corrected upto 31st July, 1976) was circulated on 3rd August, 1976 wherein among Grade‑19 Officers, the appellant was shown at Serial No. 16 and Mr. Riazur Rehman Hashmi appeared at Serial No. 15 i.e. one step higher than the appellant.

3. Another seniority list of officers of Grade 17 to 20 of the Military Lands and Cantonments Department was circulated on 30th September, 1979. In this list, among Grade‑17 Officer the appellant figured at Serial No.

15. Again, as in the previous list, Mr. Riazur Rehman Hashmi appeared one step higher at Serial No. 14.

4. The M. L. C. Department vide their corrigendum, dated 13th October, 1979 said the following with reference to 30tb September, 1979 seniority list: "....against the name of Mr. Khadim Hussain Malik, for "CEO Lahore" read "Acting CEO Lahore" and column No. 6‑insert "Holding acting charge in Grade‑19 subject to regularisation by the Selection Board."

5. There is, on record, a representation, dated 22nd October, 1979 which is addressed to the Secretary General, Defence, through proper channel. Relevant portions of the said representation as reproduced because it states the case of the appellant: Subject: Representation on behalf of Mr. Khadim Hussain Malik, Executive Officer, Lahore Cantonment Board, Lahore. "(1) ... ... ... ... ... ... ... ... ... ... (2) That on 14th June, 1974 the petitioner was given accelerated pro motion to Grade‑19 and posted as Deputy Director, Military Lands and Cantonments. This promotion was ordained to be temporary until one of petitioner's senior is cleared for promotion on regular basis ...... (3) That in the selection held in September, 1974 Mr. Riazur Rehman Hashmi who was senior to the petitioner, was cleared for promotion to Grade‑19 on regular basis

subject to the condition that interim report should be obtained on his work and shown to the Chairman of the Selection Board. In view of the rider clause of Mr. Riazur Rehman Hashmi being promoted to Grade‑19 subject to interim report petitioner was continued to be placed in Grade‑19 in officiating capacity, Mr. Riazur Rehman Hashmi, however, obtained satisfactory report and as such pre‑condition of treating petitioner in Grade‑19 on permanent basis stood fulfilled and petitioner had no reason to doubt the same, as all along, after that he was transferred, promoted and given emoluments of a confirmed Grade‑I9 Officer ...... (4) That to petitioner's surprise in the letter of transfer, dated 3rd July, 1979 posting him as Executive Officer, Lahore Cantonment Board, he was styled to be officiating in Grate ... petitioner had been' treated as an incumbent for Grde‑19 since December, 1974 and the order dated 3rd July. 1979 amounted to reversing petiti6ner's pro motion in Grade‑

19. As far as seniority list is concerned, it did not indicate that the petitioner was being kept in Grade‑19 on officiat ing or temporary basis. (5) That the petitioner had been placed in Grade‑19 way back in December, 1974 and it is unfavourable to treat him as officiating, once again, after a lapse of five years. In the circumstances

office directive be issued declaring that the petitioner is in Grade‑19 and his further promotion may be determined on the basis of his being in Grade‑I9 since June, 1974."

6. The Military Lands and Cantonments Department vide their letter dated 19th January, 1980 (received by the appellant on 24th January, 1980) said the following with reference to the above petition:‑ "

to inform you that the same was considered by the Ministry of Defence who have decided that no appeal lies against your reversion from Grade‑19 to Grade‑18) as it was approved by the competent authority on the recommendation of the Central Selection Board."

7. It would be observed that appellant's petition dated 22nd October, 1979 was with reference to his posting order dated 3rd July, 1979 wherein he had been shown in his officiating capacity. It said nothing about the inser tion of corrigendum in the seniority list of September, 1979 on which he built up his subsequent case. However, the M. L. C. Department vide their reply dated 19th January, 1980 updated and informed the appellant in no uncertain terms, that he had already been reverted to Grade‑18 against which there could be no appeal. According to the memo. of appeal para. 13, the appellant preferred a petition to the President of Pakistan on 19th January, 1980 (before receipt of the departmental reply at para. 6). This petition was withheld. Since a copy of the said petition to the President of Pakistan has not been placed on record, we do not know what it contained.

8. Another aspect which has not been mentioned in the memo. of appeal, is the presence of Gazette notification SRO, 1110(1)/79, dated 29th November, 1979 which reads: "With reference to the Government of Pakistan, Ministry of Defence Notification No. 1329/74, dated the 14th June, 1974 Mr. Khadim Hussain Malik (a Grade‑18 officer) presently holding Acting charge of the post of Grade‑19 as Cantonment Executive Officer, Lahore is reverted to his original Grade‑18 with immediate effect."

9. We do not know when was it that the above‑quoted Gazette notifi cation came to the knowledge of the appellant. All we can say is that he must have learnt of it immediately after its publication or, perhaps, before. Even if we give the appellant the benefit of doubt and presume that he knew nothing about it, we cannot help him beyond 24th January, 1980 the date on which he had received his Department's letter informing him that he had been demoted. There is no evidence to suggest that the appellant filed a review petition against his reversion. What causes us further surprise is the fact that long after his de jure reversion, he should be fighting futilely and virtually in a state of self‑delusion, for suspension of the corrigendum (dated 13th October, 1979) to the September, 1979 seniority list. In this connection there is an affidavit, dated 5th February, 1980 on record wherein the appellant prays for suspension of the corrigendum, dated 13th October, 1979 otherwise he would suffer an irreparable loss. There is, also, a peti tion dated 13th April, 1980 under section 151, C. P. C. wherein the appel lant, once again, prays for the suspension of corrigendum inserted in the seniority list of 1979 or else he would suffer an irreparable loss. This petition was heard by the Tribunal on 5th May, 1980 and rejected on the ground: "that no sufficient cause exists to stay hands of the department from administrative adjustments it wants to make. Moreso when the final relief‑tray not be in the grasp of the appellant for reason paraded". In the same order the Tribunal had ruled: "In this case, appeal representation having been rejected. On 19th January, 1980 the petitioner/appellant was bound to file an appeal

before 20th February, 1980. Delay thereafter until 6th March, 1980 not being referable to a justifiable cause nor sought to be condoned cannot be ignored."

10. Our predecessor Tribunal held the present appeal to be time barred. During our hearing on 17th March, 1983 we, too, had come to the same conclusion. However, condonation application was, thereafter, filed by the learned counsel on 22nd March, 1983. While hearing the case finally, the learned counsel for the appellant conceded that the present appeal should have been filed within 30 days from 24th January. 1980 the date of receipt of the departmental reply dated 19th January, 1980 which is impugned. No convincing case been made out for condonation of delay, apart from the fact that the condonation application did not accompany the appeal.

11. We find, therefore, that the two objections raised by the learned State counsel viz. the appeal was not competent and it was also time -barred, do have substance and we uphold the said objections. Upholding these objections would have been sufficient cause for us to dismiss the appeal before us. This legal position notwithstanding, we heard the case on merit as well.

12. Briefly stated, the case of the appellant is that he was promoted on 14th June, 1974 to Grade 19 on Acting basis till one of his seniors was cleared for regular promotion and that since this senior (Mr. Riazur Rehman Hashmi) had been so promoted fulfilling the condition precedent, the appellant ceased to be on Acting promotion. As such, he should be deemed to have been regularly promoted from the date Mr. Hashmi stood promoted to Grade‑19 on regular basis. On the other hand, the contention of the res pondents is that the appellant had never been cleared for regular promotion and that there were other officers in the Department over and above Mr. Hashmi, who were senior to the appellant. Such senior officers were promoted regularly from time to time after the Acting promotion of the appellant and 'that at the relevant time, when the appellant was not approved by the Central Selection Board for regular promotion, he had to be reverted:

13. We have carefully gone through the Central Selection Board Minutes dated 2nd May, 1974. It has been recorded therein that (at the relevant time) there were three officers senior to the appellant. The senior most officer had already been promoted Deputy Secretary elsewhere and was not available for departmental promotion. The next two officers in order of seniority were not approved. The next in order of seniority was the appel lant. "The Board, therefore, cleared him for acting promotion to Grade=19 till one of his seniors was cleared for promotion on a regular basis". It would, therefore, be seen that the appellant's acting promotion had no relationship with Mr. Hashmi as one of his seniors. In fact, Mr. Hashmi did not, at all, figure in the subject meeting of the Central Selection Board though he appeared twice above the appellant in the seniority lists of 1976 and 1979 but this was a mere coincidence. The wording of the Gazette notification, dated 14th June, 1974 when referring to "one of his seniors" actually meant the seniors who could, at all, be promoted and this situation materialized in the Central Selection Board meeting of 3rd October, 1979. There is thus a good deal of force in the assertion of the respondents that appellant, being fully aware of his acting promotion, was either sent out on foreign courses or on leave of every conceivable description or on deputa tions like Narcotics Control Board, WAPDA etc. when there was no longer, a vacancy for him in the department and that this was done to save him from reversion till he was finally overtaken by the Central Selection Board.

14. Item No. 6 of Minutes of Central Selection Board meeting dated 3rd October, 1979 relates to filling up of three posts of Deputy Director (Grade‑19) in the M. L. C. Department. In order to seniority the appellant was No. 2 for consideration in whose case the following quotation appeared : "

Mr. Malik had been holding a Grade‑19 post after being cleared by the CSB‑11 in May, 1974 for acting promotion to that grade pending the availability of one of his seniors for promotion on regular basis. In view of the above Mr. Khadim Hussain Malik was not cleared for promotion to Grade‑19."

15. We have no doubt that the appellant had been holding an acting charge throughout in Grade‑

19. The CSB, on 3rd October, 1979 did not approve him and hence his reversion vide the Gazette Notification, dated 29th November, 1979 reproduced above.

16. The reversion of the appellant came about NOT as a result of an disciplinary proceedings but as consequence of his acting promotion which was not regularised when his case for promotions was turned down by the CSB on 3rd October, 1979. Such reversions are fully covered by section 12 of Civil Servants Act, 1973 which is reproduced: "Reversion to a lower grade of service.‑A civil servant appointed to a higher post or grade ad hoc or on temporary or officiating basis shall be liable to reversion to his lower post or grade without notice."

17. We also hold that the circulation of appellant's name in Grade 19 Officer's seniority list of 1976 and 1979 could not be construed to confer upon him the status of a regular appointee so long as the Ministry of Defence Gazette notification, dated 14th June, 1974 was not superseded and remained in the field. Conversely speaking, the amendment in the seniority list of 1979 issued in the form of corrigendum dated 13th October, 1979 which he was keen to see the last of, did the appellant no injury whatever. His reversion could have been ordered without the, said corrigendum or in spite of it. What was material was the verdict of they CSB which went against the appellant on 3rd October, 1979 and hence his reversion.

18. The learned counsel for the appellant has not been able to establish mala fide against any one of his superiors as alleged in the appeal.

19. In view of the foregoing reasons we dismiss this appeal on three counts. First, it is incompetent in view of section 4(1)(a) of the Service Tribunals Act, 1973. Second, it is hit by limitation and third and last it is devoid of merit.

20. No order as to costs. A. E. Appeal dismissed.