1994 PLP (C (PLC(CS))

SARDAR SAID MUHAMMAD KHAN, C.J.‑‑‑This appeal has been preferred against the judgment of the Federal Service Tribunal dated 12‑1‑1993, whereby the appeal filed by the appellant, herein, was dismissed, in limine. The brief facts of the case are that the appellant was recruited as Inspector Income Tax on 6‑4‑1969 and was promoted to BPS‑16 as Assistant Collector‑cum‑Income Tax Officer on 1‑4‑1973. He was promoted to BPS‑17 on 8‑9‑1975 but as a result of revision petition filed by one Azad Khan, he was reverted back to BPS‑16 on 8‑7‑1976. Muhammad Rafique Khan, respondent, was appointed as Deputy Collector m BPS‑17 on 25‑12‑1975, i.e. after the promotion of the appellant to the said grade but as a result of the reversion of the appellant in the year 1976 to BPS‑16 Muhammad Rafique who was serving as Deputy Collector in BPS‑17 became senior to him. Meanwhile respondent No.3 was promoted on 7‑8‑1986 to BPS‑18 with retrospective effect from 29‑3‑1982 and subsequently was promoted to BPS‑19 on 7‑7‑1992. According to the case of the appellant, as set up in the memorandum of appeal, he had protested against his reversion to BPS‑16 and had also made representation but the same were turned down. Meanwhile the question of seniority of one Shafique‑ur‑Rehman and Abdur Rehman Mankno, Inspectors Excise, came for consideration before the Federal Service Tribunal, which held that Inspector Income Tax was senior to the Inspector Excise and Taxation. An appeal was preferred to this Court entitled Abdur Rehman Mankno v. Sh. Shafiq‑ur‑Rehman (Civil Appeal No. 21 of 1990, decided on 8‑8‑1990) which was dismissed and the findings of the Tribunal in that case were maintained. Thereafter, the appellant started new round of litigation on the ground that in view of ratio decedendi in Mankno's case, the decision in revision petition filed by Muhammad Azad Khan which had resulted in his reversion was illegal and he sought refixation of his seniority in BPS‑17 and 18 in view of the aforesaid dictum of this Court in Mankno's case. According to the appellant, it was just that the question of his seniority is re‑opened and his promotions to BPS‑17 and 18 are given retrospective effect from earlier dates and he is given all benefits accruing as a result of fresh orders regarding matters indicated above. He assailed the promotion of respondent No. 3 to BPS‑19 on the ground that in case of refixation of seniority, he would become senior to respondent No. 3 in BPS‑17 and 18 and, thus, would become entitled to be considered for promotion to BPS‑19 alongwith respondent No.

3. His representation made to the departmental authorities was rejected and his appeal to the Service Tribunal was dismissed in limine. The present appeal has been preferred against the order of dismissal of his appeal by the Service Tribunal. It is pertinent to point out that at the time of the arguments in this Court Raja Muhammad Hanif Khan, the learned counsel for the appellant, abandoned all the grounds which were pressed by the appellant before the departmental authorities and before the Service Tribunal with regard to his seniority and his promotions to BPS‑17 and BPS‑18 with retrospective effect. The learned counsel submitted that in the present appeal he would only press the point that as the appellant was eligible to be considered for promotion to BPS‑19 at the time of promotion of respondent No3 to the said grade, he should have been also considered alongwith respondent No.

3. Consequently, he abandoned the questions of the consideration of his seniority and his promotions to BPS‑17 and BPS‑18 from earlier dates. The learned counsel for the appellant has only argued that irrespective of the factum of seniority of the appellant in BPS‑18 as he possessed the requisite qualifications for promotion to BPS‑19, he should have been considered by the Selection Board for promotion to BPS‑

19. The learned counsel has argued that although this point was not specifically agitated in any of the forums below, yet this being a law point can be pressed for allowing the promotion of respondent No. 3 to BPS‑

18. In reply, the learned counsel for the respondent maintained that the post against which respondent No3 was promoted in BPS‑19 was a selection post and, thus, it was not necessary that all the eligible persons for the promotion to said post should have been considered by the Selection Board. He maintained that according to the Instructions issued by the competent authority, a minimum number of two officers eligible for promotion were required to be considered and, thus, no violation of law was committed by not considering the case of the appellant for promotion to BPS‑

19. The learned counsel for the respondent has further maintained that the appellant is setting, up altogether a different case from the one, which he had before the Service Tribunal and the departmental authority; which is not permissible in law at this stage. The; learned counsel drew our attention to Instruction No. 4, Part III of the Instructions known as `Guidelines for Departmental Promotions Committees/Central Selection Boards'. Under Instruction No. 2 (a) of Part III of the said Instructions, for a supervisory post, a minimum number of two officers for every vacancy should be sent to the Selection Board and not all the persons eligible to promotion to BPS‑19; under Instruction No.l of Part III all supervisory posts are selection posts. The learned counsel for the appellant, in reply, has argued that this Court has expressed the view in same cases that at least a panel of four officers should be sent to a Selection Board or Committee. The argument advanced by the counsel for the appellant was controverted by the counsel for the respondent on the ground that the said view was expressed in the cases which were decided under the provisions of Civil Servants Act, 1976 and the rules framed thereunder and not under the Civil Servants Act, 1973 and rules framed or the instructions given thereunder which are applicable to the present case. It was further maintained that as there was no guidelines issued under the cases falling within the ambit of Civil Servants Act, 1976, the view expressed in the cases governed by the Civil Servants Ad, 1976 cannot be pressed into service to substantiate the argument in the instant case. We have given our due consideration to the arguments raised at the Bar. It has already been pointed out that the learned counsel for the appellant has agitated a ground which was not taken up either before the Departmental Authority or in the Service Tribunal, i.e., that the appellant being eligible for promotion to BPS‑19 should have been considered while considering the case of respondent No.

3. It has already been pointed out that the case of the appellant before the Departmental Authority and the Service Tribunal has been altogether different. It would be expedient here to reproduce the extracts from the memorandum of appeal filed before the Service Tribunal to elucidate the matter further. The relevant extract is as under: ‑‑ "It' is, therefore, prayed that: (1) The promotion order of Sardar Muhammad Rafique Khan Tahir in BS‑19 (Annexure `D') be declared as null and void since because no final seniority list was notified by the competent Authority as required under section 8 of Civil Servants Act, 1973. (2) The promotion order of Sardar Muhammad Rafique Khan Tahir in BS‑19 (Annexure `D') was issued without considering the superior service rights of the appellant so same be declared unlawful and unwarranted. (3) In the light of judgment of Federal Service Tribunal and Supreme Court of AJ&K the seniority of appellant be restored as existing in 1975, following appellant promotion as Deputy Collector‑cum‑Income Tax Officer. This mean that the appellant will be declared senior to Sardar Muhammad Rafique Khan Tahir, appellant being at promotee and Sardar Muhammad Rafique Khan Tahir being an appointee of the year 1975. (4) In all promotion subsequent to 1975, the seniority of the appellant be maintained. (5) All back benefits of which the appellant has been deprived illegally on account of a wrongful decision of worthy Prime Minister in 1976, be also awarded." It is evident from the above extract and the other averments of memorandum of appeal filed before the Service Tribunal that the appellant challenged the promotion of respondent No. 3 on the ground of his alleged seniority in view of the dictum laid down in Mankno's case but in this Court he abandoned the claim of seniority and took the stand that whether he was senior to respondent No. 3 or not, he should have been considered by the Selection Board for promotion to BPS‑19 because he was also eligible to promotion to BPS‑

19. Even if the said ground is allowed to be taken at this belated stage that would not help the appellant because in view of `guidelines' referred by the learned counsel for the respondent, it was not necessary to send all eligible officers for consideration and for making recommendations for promotion to BPS‑

19. According to the said `guidelines' the post against which respondent No.3 was promoted was in BPS‑19 and was a selection post and, thus, a minimum number of two officers could be sent to the Selection Board and it was not necessary to send all the eligible officers. Thus, even if it is assumed for the sake of argument that the appellant can raise the aforesaid ground for assailing the promotion of respondent No. 3 to BPS‑19 at this stage, he has no case as no violation of the guidelines was committed. The argument advanced by the counsel for the appellant that this Court expressed the view in some cases that panel for promotion must consist at least four officers does not hold good in the instant case because those cases were governed by Civil Servants Act, 1976 under which no guidelines were issued as in the present case. It may be stated that the argument of the learned counsel for the appellant that this was a legal point and can be pressed into service even at this stage is not tenable. It may be observed that if a question of law pertains to a ground pleaded by a party, it can be raised with the permission of the Court but not so if such a question of law is alien to the stand taken by a party in its pleading because it would tantamount to set up altogether a new case; rather to raise a question of law in support of case already set up by the party concerned. It has already been stated that the Service Tribunal dismissed the appeal of the appellant in limine in view of the grounds, which he had agitated before it. As the sole ground which has been pressed into service for assailing the promotion of respondent No. 3 before us was not agitated before the Service Tribunal, there are no findings on this point. It is but natural that there is no discussion on the same by the Service Tribunal. In view of the fact that the point argued before us, i.e., that the appellant was eligible for being sent to Selection Board for consideration for promotion to BPS‑19 was not agitated before the Tribunal, it was not proper to remand the case to the Service Tribunal to reconsider the point and, thus, we resolved the same ourselves. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with no order as to the costs. AA./25/SCA Appeal dismissed.