1991 PLP (C (PLC(CS))

CH. HASAN NAWAZ (MEMBER).

These are the material facts of this appeal under section 4 of the Service Tribunals Act, 1973, filed on 1-8-1985 by the appellant who is serving as Assistant Superintendent, General Post Office, M&SO, Central Circle, Lahore.

2. The appellant was appointed as an Inspector Railway Mail Service on 1-7-1970 after he had qualified in the required competitive examination held in the year 1969. While serving as Inspector Railway Mail in the Postal Training Centre, Lahore, leave ex Pakistan on full pay for a period of four months was granted to him by the Principal of the Centre with effect from 6-6-1979. It appears that leave ex Pakistan was subsequently extended till 20-5-1981. It was during his absence on leave that he was approved for promotion as Assistant Superintendent, Railway Mail Service by the Departmental Promotion Committee on 16-10-1980.

3. By order dated 24-5-1981 (Annexure-A), the Post Master-General Central Circle, Lahore cancelled the un-expired portion of his ex-Pakistan leave on his own request with effect from 21-5-1981 and posted him as Assistant Superintendent, Railway Mail Service (Grade-11) Bag Control Office with effect from 21-5-1981, on promotion against the vacancy caused on account of Muhammad Yaqub, Assistant Superintendent Railway Mail Service incumbent of this post having been gone on leave. This order further said that "on joining of Muhammad Yaqub after expiry of his leave as Assistant Superintendent Railway Mail Service BCO Mughalpura, Mr. Fazal-ur-Rehman (appellant) is posted as Inspector Railway Mail Service BCO Mughalpura (vacant post)".

4. After having joined as Assistant Superintendent, RMS in the aforementioned leave vacancy, the appellant worked from 21-5-1981 to 293-1981 and then again went on ex-Pakistan leave for a period of 120 days from 30-5-1981 to 26-9-1981. This leave ex-Pakistan was subsequently extended by the Assistant Director Bag Control Office, Mughalpura Lahore for a period of 365 days with effect from 27-9-1981 as leave extraordinary through memo. No. BCO/FR/81 82, dated 15-12-1981. It was further extended from 27-9-1982 to 31-3-1984 through memo. No. BCO/FR/82-83, dated 1-2-1983 issued by the Assistant Director.

5. On expiry of leave extraordinary ex-Pakistan, the appellant was allowed to resume duty by order dated 4-4-1984 which is to the following effect: No. B2-Fazal-ur-Rehman Dated at Lahore 4-4-1984 In continuation of this office memo. No. B2-64, dated 23-7-1983, and on the expiry of his ex-Pakistan leave, Mr. Fazal-ur-Rehman, ASRM Lahore M&SO TD/3, is allowed to resume his duty on 4-4-1984. Mr. Abdul Hamid-IX, who was officiating as ASRM Lahore M&SO TD/3, is hereby reverted to his substantive post as sorter Lahore M&SO, against the existing vacant post. Usual charge reports should be prepared and submitted Jo all concerned. (Sd.) DIVL. SUPERINTENDENT"

6. During his absence on leave abroad, the posts of Inspector RMS/PLI were upgraded from NPS-9 to NPS-11 with effect from 2-12-1981 as borne out by letter 30-11-1981 issued by the Director-General (respondent No. 2). After the upgradation of these posts, respondent No.1 issued a seniority list of Assistant Superintendents of Post Offices, Assistant Superintendents Railway Mail Service and Inspectors of Post Offices/RMS by covering letter dated 16-5-1983 (Annexure-C). This list was in two parts. The first contains the names of Assistant Superintendents Post Offices/RMS separately who were selected and approved for promotion on regular basis and actually took over the charge of the posts on or before 1-12-1981. The second is made up of the names of the Inspectors of Post Offices/RMS who were working in that capacity on 1-12-1981 and were upgraded alongwith the posts with effect from 2-12-1981 and designated' as Assistant Superintendents of Post Offices/Railway Mail Service. The appellant's name was shown against Serial No.2 of Part-II of this list.

7. In the background of these facts, this in brief is the appellant's case. After having joined as Assistant Superintendent on 4-4-1984, he came to know about the publication of aforementioned seniority list on or about 2nd of May 1984. On verbal inquiry as to why his name had not been shown in Part-I of the seniority list he was told that he was reverted to the substantive post of: Inspector RMS by order dated 17-6-1981 issued by Sh. Munir Ahmad Assistant Director BCO Lahore. He was, however, under the impression that he had joined and then worked as Assistant Superintendent on basis of his promotion from 21-5-1981 and not as a result of upgradation of the post of Inspector to NPS-11 and its subsequent redesignation as that of Assistant Superintendent.

8. Since this position was not acceptable to him, he filed representation dated 22-5-1984 (Annexure-E) before respondent No. l with the request that his name may be shown in Part-I of the seniority list of Assistant Superintendents Railway Mail Service. The representation was rejected but the letter of rejection dated 4-11-1984 was not communicated to him. On coming to know from other sources that the representation had been rejected, he applied for a copy of the order of rejection which was supplied to him by the Divisional Superintendent through letter dated 2-3-1985. He then addressed departmental appeal (Annexure `G') dated 30-3-1985 to respondent No.2 who received it on 4-4-1985.

9. The departmental appeal having gone without response, he filed the present appeal on 1-8-1985 with the prayer "that the order of reversion of the appellant dated 17-6-1981 may be set aside and the respondents may be directed to show the name of the appellant in Part-I of the seniority list at a proper place, thereby restoring his seniority position in the promotee Assistant Superintendents from 21-5-1981."

10. From the facts and the prayer made in the appeal it is clear that the order impugned by the appellant in this appeal is the one passed by the Assistant Director Bag Control Office on 17-6-1981, which makes the following reading: Office of the Assistant Director Bag Control Office, Moghalpura, Lhr. NO. BCO. 4-2/80-81. Dated at Lahore, the 17-6-1981 Consequent upon joining of Mr. Muhammad Yaqub ASRM BCO Lahore from K.L. on 17-6-1981, the following posting and transfer is as under with immediate effect till further order:

1. Mr. Fazal-ur-Rehman posted as ASRM BCO Lahore vide memo. No even dated 27-5-1981 is hereby ordered to be posted to substantive post of IRM and further posted vide Mr. Muhammad Jamshed who is at PTC, Karachi for training of Junior Accountant

2. Mr. Muhammad Afzal-II already working as officiating IRM is hereby ordered to be posted vide Mr. Fazal-ur-Rehman who has proceeded on ex-Pakistan leave. Usual charge report should be submitted to all concerned. (Sd.) Assistant Director Bag Control Office Moghalpura, Lahore."

11. It is contended on behalf of the appellant that since the order of his promotion to the post of Assistant Superintendent had been made by the Post Master General, the impugned order of reversion dated 17-6-1981 passed by the Assistant Director Bag Control Office was illegal and without authority. The appellant's pleadings on this point tend to cause an impression as if his reversion was made by order dated 17-6-1981 as punitive measure and that the Assistant Director was not competent to order his reversion. But this in fact has not been the case. As we have already noticed before, the order of this promotion dated 24-5-1981 bears out that he was promoted by Post Master General, Central Circle, Lahore as Assistant Superintendent Railway Mail Service Cadre, after cancellation of his ex-Pakistan leave with effect from 21-5-1981 on his own request, against a vacancy caused on account of Mr. Muhammad Yaqub having gone on leave. The order of promotion said that "on joining of Muhammad Yaqub after expiry of his leave as Assistant Superintendent, BCO Mr. Fazal-ur Rehman (appellant) is posted as Inspector Railway Mail Service Baggage Control Office, Moghalpura. "It is clear that the expression "is posted" was used in the sense of "stands posted" or "will stand posted". There is no doubt about the fact that in either case, the appellant stood posted as Inspector Railway Mail Service by the same order passed by the Post Master General; which promoted him as Assistant Superintendent. In this view of the matter, there is no force in the contention that reversion was made as punishment or that it was ordered by the Assistant Director. We feel no hesitation in saying that order dated 17-6-1981 passed by the Assistant Director was not an order of reversion stricto senso and that it was only a passive narration of what had already been directed by the Post Master General in his order dated 24-5-1981 regarding the appellant's posting as Inspector Railway Mail Service on joining of Muhammad Yaqub after expiry of his leave.

12. As we see, the fact of the matter is that appellant got his ex-Pakistan leave cancelled with effect from 21-5-1981 only to avail the opportunity of his posting as Assistant Superintendent against the leave vacancy of Muhammad Yaqub and after having worked there for a few days till 29-5-1981 he again went on leave ex-Pakistan from 30-5-1981 to 26-9-1981 which was subsequently extended for another 365 days from 27-9-1981. He had thus already left the country when Muhammad Yaqub joined after the conclusion of his leave and order dated 24-5-1981 passed by the Post Master General who according to appellant's own case was the competent authority, automatically became effective and operative, resulting m his reposting as Inspector Railway Mail Service. Under the circumstances, the Assistant Director will not be deemed to have passed any order of reversion and the effect that he wanted to produce by order dated 17-6-1981 was the implementation of the Post Master General's earlier order dated 24-5-1981.

13. Another ground of appeal is "that in accordance with departmental practice, newly promoted employees are posted against leave vacancies wherever they are available in the Circle and they are not reverted until they are utlimately adjusted against permanent posts as and when those become available". Reliance m support of this practice has been placed on order dated 17-11-1980 (Annexure `D') whereby the competent authority ordered promotion, posting and transfer of certain officials as Assistant Superintendents. We are not inclined to hold that this order can be of any help to the appellant's case; which is so because of the reason that he was not available for posting against a leave vacancy either on 17-6-1981 or on any other date. Even if order dated 17-11-1980 be relied upon as proof of any such practice, the difference in his case is that he was not available for posting at the time of the vacancy.

14. The same consideration will hold good in the case of other pleadings where it has been said that "there was another post lying vacant in Circle office of Assistant Superintendent Sorting-I due to promotion of Abdul Qayyum to the gazetted cadre and remained vacant till July 1982 and "even the post held by Muhammad Yaqub Assistant Superintendent BCO became vacant on 27-6-1981" and that "in spite of that duel charge of the first post was given to Mr. Ghulam Samdani, Assistant Superintendent Sorting-II, while on the second post Mr. Muhammad Jamshid who was ten years junior to the appellant was posted." In the case of vacancy caused by the promotion of Mr. Abdul Qayyum, the date has not been mentioned. The leave vacancy regarding Muhammad Yaqub became available on 27-6-1981 when the appellant had already gone abroad which created a justification for the posting of Muhammad Jamshid against the leave vacancy. So must be the reason for giving dual charge lo Mr. Ghulam Samdani. The competent authority could not have possibly posted him against a leave vacancy in his absence abroad and he had to be there for availing of the opportunity. For these reasons we do not find any hesitation in holding that there was nothing legally wrong with the impugned order of 17-6-1981.

15. We also hold that the appellant, although selected and approved for promotion on regular basis, never actually took over charge of the post of Assistant Superintendent on or before 1-12-1981. The result is that he was still an Inspector on 1-12-1981 and amongst those whose posts were upgraded and redesignated as Assistant Superintendent by virtue of the President's sanction conveyed through letter dated 30-11-1981. This being the position his name was rightly shown in Part-II of the seniority list circulated with letter dated 16-5-1983 (Annexure `C').

16. It may be pointed out as an important circumstance that he had been on leave ex-Pakistan with effect from 6-6-1979 and that his name was approved for promotion as Assistant Superintendent by the departmental promotion committee on 16-10-1980 during his absence on leave and that he seems to have' deliberately withheld the date on which he went on leave ex-Pakistan, from his pleadings. In paragraph-3 of the appeal it has been said that he applied for leave ex-Pakistan initially for four months which was duly sanctioned by the competent authority but the date on which he went on leave has not been mentioned. Then, nothing has been said in the pleadings about the nature of the leave ex-Pakistan, when he got it cancelled to be able to assume charge of the leave vacancy with effect from 24-5-1981. There is no doubt about the fact that he had no intention of staying and serving in that post and that he had again gone on leave on 30-5 1981 which was extended from time to time. It may also be pointed out as a material circumstance that leave with effect from 27-9-1981 to 31-3-1984 was extraordinary in nature. Under the circumstances, he cannot be deemed to have been posted as Assistant Superintendent from 21-5-1981 on regular basis and order dated 24-5-1981 clearly dictated that he shall stand posted as Inspector on' expiry of Muhammad Yaqub's leave.

17. The appeal has also been opposed on the ground of limitation. It is in the appellant's pleadings that after joining duty on 4-4-1984 he came to know about the publication of the seniority list on or about 2-5-1984. He then submitted representation dated 22-5-1984 to the Post Master General. This was rejected by the competent authority and the order of rejection was conveyed through letter dated 4-11-1984 which was endorsed to the appellant on 6-11-1984. The appellant's case is that letter of rejection was not communicated to him and that "on coming to know unofficially that the representation had been rejected he applied for a copy of the said order" which was supplied by the Divisional Superintendent Post Offices through covering letter dated 2-3-1985. He then tiled departmental appeal dated 30-3-1985 to the Director-General. There being no response, he came to the Tribunal with the present appeal on 1-8-1985.

18. It has been pleaded by the appellant in support of his request for condonation of delay that the order of rejection of his representation dated 22-5-1984 was not communicated to him and that he came to know about it "unofficially ". Letter dated 4-11-1984 appears from the record to have been endorsed to him on 6-11-1984 and there is every justification for believing that it must have been despatched to him in the ordinary course of concerned official's business. Even if it be assumed that it was not so despatched, it has not been mentioned by the appellant either in his appeal or in the application under section 5 of the Limitation Act for condonation of delay as to when he ''unofficially" came to know about this order. This date was very material to determine whether the departmental appeal addressed to the Director-General on 30-3-1985, even if competent under the rules, was within time. This date has not been mentioned and the appellant's failure to do so would warrant a finding that the departmental appeal, if all required by the rules, was not within time. He should have come to the Tribunal at least within 30 days from the date on which he came to know of the fact that his representation had been rejected. The application under section 5 of the Limitation Act does not make out any case for condonation of delay and we hold that the appeal is time-barred.

19. For these reasons the appeal is dismissed. There will however be no order as to costs. Parties to be informed. M.Y.H./616/Sr.F Appeal dismissed.