1989 PLP (C (PLC(CS))

SALAHUDDIN CHAUDHRI (MEMBER).‑‑The appellant, Muhammad Ishaque, is an engineer working for T & T Department. In April 1981, when he was Divisional Engineer (BPS‑18) holding charge of the current duties of Deputy Chief Engineer, he proceeded on leave ex‑Pakistan. While he was abroad, the Central Selection Board met in May 1982 to consider the cases of eligible candidates for promotion to posts in BPS‑19 but the appellant's name was not considered for reasons of his absence from the country. The relevant portion of the Director General's letter dated June 8, 1982 on the subject reads as under: ‑ "You cannot be considered for selection because of your absence from country as under the existing rules those who have proceeded on deputation or long leave are required to earn one years' confidential report after their return to become eligible for such consideration." Those approved including some the appellant's juniors were promoted vide notification dated 29th May, 1982. In the meeting of the Selection Board held in August 1983, although the appellant's name was considered yet it was again not approved. This time it was deferred on the ground that under the qualification formula contained in the promotion policy introduced by the Establishment Division vide its letter of 31st October, 1982 and on the basis of the evaluation of his A.C.Rs the appellant did not yet have to his credit the minimum marks required for promotion to the next grade. Feeling aggrieved, the appellant submitted a representation to the President of Pakistan on 21‑9‑1983, challenging the propriety of the new promotion policy and the unfairness of its retrospective application. Having received no reply, the appellant came up in appeal to this Tribunal on 21‑1‑1984.

2. The appellant's grievance as explained by his learned counsel, is that the Central Selection Board which met in May 1982 was totally wrong in not considering him for promotion because there existed no rule which debarred an officer from being considered for promotion only because he happened to be on leave. Against the decision of Selection Board taken in a subsequent meeting to defer the appellant's case, the objection raised was that the qualification formula introduced on 31‑10‑1982 could not be made applicable retrospectively and so instead of deferring the case, the Selection Board should have processed it on the basis of the old policy and promoted the appellant with effect from 29‑5‑1982 when his juniors were first promoted. The learned counsel for the appellant also pointed out that even the qualification formula had not been correctly applied inasmuch as A.C.Rs for a number of years missing from the dossier, particularly for the years when the appellant was on deputation in Kuwait, remained unaccounted for. It was submitted that the respondents were duty hound to have the ACR dossier brought upto date and complete before putting it up to the Selection Board. By not doing so, contended the learned counsel, the appellant had received very unfair deal. To prove the claim that the appellant's service record was good enough for promotion, the learned counsel stated that following repeated requests when the missing A.C.Rs were placed on record, the Selection Board later cleared him for promotion. It was urged that on these facts and for the above reasons, the respondents be directed to re‑consider the appellant's case for promotion with effect from 29‑5‑1982 when his juniors were promoted.

3. On behalf of the respondents, two preliminary objections of law have been raised. The first relates to limitation. According to the learned counsel for the respondents, the cause of action arose when the appellant's juniors were promoted vide Notification dated 29th May, 1982 and, therefore, the appeal filed on 21‑1‑1984 is hopelessly barred by time. The second objection is that the appeal is not maintainable for the reason that the appellant did not file any appeal or representation either when his juniors were promoted in May, 1982 or when the next batch of the officers junior to him were promoted vide Notification dated 19th October, 1983 and so the requirements of proviso (a) of section 4(1) of the Service Tribunals Act, 1973 have not been met.

4. We will deal with the second objection first. It is not denied that no departmental appeal or representation was filed by the appellant following the issue of Notification of 29th May, 1982 under which his juniors were first promoted. The appellant, however, maintains that the D.G. in his letter of June 8, 1982, referred to earlier in this order, having informed him that in case he was approved for promotion subsequently his date of seniority Will remain intact filing of an appeal at that point of time was not considered necessary. But when he was not approved for the second time an appeal/representation was duly addressed to the President of Pakistan on 22‑8‑1983. Thus, it is contended, the requirements of proviso (a) to section 4(1) of the Service Tribunals Act, 1973 have been duly met and the appeal is fully competent. We, however, are unable to accept this contention. The fact of the matter is that the representation dated 22‑8‑1983 addressed to the President of Pakistan was submitted not to challenge the orders under which the appellant was ignored while his juniors were promoted but to question the promotion policy issued on 31‑10‑1982 as such. In this representation the appellant has taken the stand that the promotion policy is not fair and that it should not have been enforced with retrospective effect. Even the "subject" of the representation speaks for itself. The relevant portion reads as under: "To The President of Pakistan, CMLA Secretariat, Rawalpindi. Through Proper Channel. Subject: Representation/Departmental appeal against Notification No, 10(3)81‑CP‑1(PT), dated 31‑10‑1982." Furthermore, the representation is not addressed to the appropriate authority. The appellant was drawing pay in BPS‑18 and thus the representation lay to the Secretary Establishment. That being so, the representation dated 22‑8‑1983 cannot be taken as a representation within the meaning of section 4(1) of Service A Tribunals Act, 1973. The remedy provided in law having not been availed and the requirements of law having not been met, the present appeal is clearly incompetent and not maintainable. We are fortified in our vices by the decision of the Supreme Court of Pakistan reported as P L D 1979 S C 856.

5. Coming to the other objection, it must also be upheld. There is no doubt that the cause of action arose when the appellant's juniors were promoted on 29th May, 1982 and again on 19‑10‑1983. The orders of 29th May, 1982 were not B contested and no representation against the orders dated 19-1‑1983 was made to the proper authority. The appeal to this Tribunal filed on 21‑1‑198‑1 is clearly barred by time. No satisfactory explanation for the delay has been offered and in fact there is no application for condonation of delay either.

6. In the result, the appeal is dismissed as not maintainable and also barred by time.

7. No order as to costs. M.Y.H./411/Sr. F Appeal dismissed