1999 PLP (C (PLC(CS))

ABDUL HAFEEZ CHEEMA (CHAIRMAN).‑‑The appellant was selected by the West Pakistan Public Service Commission as E.A.C. in 1968 and in the seniority list circulated by the Department in 1975 he was shown at Serial No.

166. He was due for promotion to BS‑18 from 4‑6‑1978 when his junior Ch. Muhammad Saddique was promoted. He was, however, deferred by the Provincial Selection Board, hereinafter referred to as Board, and placed on special report for 6 months. After the aforesaid report, the case was not placed before the Board in 1979. As Special Magistrate, he earned two good reports yet his promotion was delayed till 1986. He was promoted to BS‑18 w.e.f. 13‑7‑1986. He, filed a representation that he was entitled to pro forma promotion w.e.f. 4‑6‑1978, the date when his junior Ch. Muhammad Siddique was so promoted. His representation wa3, however, rejected and he was, thus, obliged to file this appeal.

2. Division Bench of this Tribunal accepted the appeal vide their Judgment, dated 24‑11‑1991 setting aside the order, dated 15‑10‑1987. Consequently, the appellant was ordered to be promoted with all financial back benefits w.e.f. 4‑6‑1978 i.e. when his junior Ch. Muhammad Siddique was promoted. 3., The Government of the Punjab challenged the judgment in the Supreme Court, by means of Civil Appeal No.401 of 1993 on various grounds. Their Lordships of the Supreme Court after hearing the parties at length were pleased to accept the appeal and remitted the case back to this Court for fresh decision. The relevant part of the judgment remanding the case shortly reads:‑‑ "It was also specifically said in the comments vide para. 3 at page 40 of the paper book that the appeal of the respondent was barred by time. It showed that question of limitation was taken by the appellant before the Tribunal. Similarly, the point that the case of the respondent for his promotion was considered more than once and on each occasion, he was not found fit for his promotion. The learned Law Officer stated before us that the appellant had taken and argued the points of limitation and consideration of the case of the respondent for his further promotion on number of occasions before the Tribunal. It is evident that the Tribunal has failed to take into consideration the above said points in the impugned judgment. In this view of the matter, we are inclined to hold that the point of limitation was taken and argued by the appellant before the Tribunal who had failed to consider it as required by law. Under section 3 of the Limitation Act, 1908, it is the bounden duty of the Court/Tribunal to consider the question of limitation and if the lis is barred by limitation, it can dispose of/decide it accordingly without touching the merits of the case. The objection of the learned counsel for the respondent that no such point was argued before the Tribunal, was not at all tenable inasmuch as the above quoted law commanded the Court/Tribunal itself to decide that question of limitation. So far as the second point of the learned Law Officer is concerned, again the learned Tribunal committed gross error because the case of the respondent for his further promotion was considered and rejected by the Board on as many as six occasions (detail of which has already been referred to above). These points are to be considered for their decision in accordance with law".

4. Rather lengthy arguments were addressed from both sides on the two points which this Tribunal was required to adjudicate afresh. As for the question of limitation, it indeed was and is the bounden duty of the Tribunal to consider the point of limitation first and if the case is barred by limitation the Tribunal is empowered to dispose of the case on this very ground.

5. It is submitted by the learned counsel for the appellant that his request for pro forma promotion was finally rejected by the competent Authority on 15‑10‑1987. This order was assailed through appeal filed on 11‑I1‑1987. As it was filed within one month of the date of the impugned order, it was, therefore, well within time prescribed by law. This was vehemently controverted by the learned D.A. who argued that period of time in this case had to start w.e.f 6‑10‑1986 and not for any subsequent day because the representation of the appellant was rejected on this date.

6. We have carefully gone through the record of this case. The fact of the matter is that the representation was filed by the appellant on 5‑6‑1986 claiming pro forma promotion. This was, rejected by the competent Authority on 6‑10‑1986 and duly communicated to him. As such the appellant had to come to this Tribunal on or before 5th November, 1986. As observed by their Lordships of the Supreme Court, he kept silent and filed a belated appeal. This delay is about 1 year, for which he has rendered no plausible explanation. The argument advanced by the learned counsel for the appellant that he had filed yet another representation which was rejected on 15‑10‑1987. Therefore, fresh terminus a quo was the second rejection, has failed to impress us and appears to be wholly devoid of any force. The reason being that the Supreme Court has amply made it clear in SCMR 1998 page 882 that any subsequent representation/review or revision shall not allow the extension in time of limitation which will only reckon with effect from the date of initial and first representation. It would be instructive here to reproduce the exact wordings of their Lordships:‑‑ "A bare perusal of the above provision manifestly discloses that the aggrieved employee is necessarily required to agitate his grievance before the appropriate departmental authority within thirty days from communication of the order adversely affecting him. Therefore, terminus ad quem has been explicitly mentioned in section

4. Any delay caused in approaching the appropriate/prescribed authority or availing the remedy of representation beyond specified period without sufficient cause shall be obviously detrimental. The mandatory provisions of section 4 create express constrains whereby any employee aggrieved from departmental order affecting his terms and conditions should approach for rectification with greatest promptitude, so that controversy amongst contestants may not prolong or disturb day to day working. Seemingly, it is difficult to assume that period of limitation so prescribed would be dependent upon sweet choice of aggrieved person who might wake up from deep slumber at his own sweet whims possibly waiting for favourable environment to agitate his grievance and make endeavour to seek redress. Therefore, any omission, slackness, negligence without specifying sufficient cause with regard to commencing period of representation contained in section 4 of the Service Tribunals Act cannot be easily ignored or overlooked. Again in the same judgment at page 891 it was held:‑‑ However, now it is well‑settled that if original representation was barred by time and aggrieved employee does not disclose sufficient causes for such delay or inability to move departmental authority within prescribed period, then no subsequent order or disposal of such incompetent representation/appeal/review could create fresh cause of action or automatically operate to condone delay of limitation in availing the remedy under section 4 of Service Tribunals Act'."

7. This device adopted by the appellant in filing appeal against: subsequent order in 1987, therefore, can render no benefit to him. The appeal was clearly and visibly barred by time and, as such not maintainable.

8. Although we are not required to go beyond this point nevertheless even a plain reading of the record would show that the appellant had failed to make out any case for his pro forma promotion as claimed by him.

9. In order to understand the nature of appellant's claim it seems relevant here to make a reference to the facts of the case succinctly given in the summary to the Chief Minister at page 62 of the departmental file. It proceeds:‑‑ "It is quite evident from the above resume that the officer's case duly considered by the Provincial Selection Board on ten different occasions between 1977 and 1985, but on each occasion his promotion was ignored/deferred on account of his unsatisfactory service record. The contention of the officer that he has earned ten to twelve 'A‑1' A.C.Rs. since 1979 is factually incorrect, as may be seen from his record (Annexure C). It may further be added that the officer gamed adverse remarks for the periods 1‑5‑1971 to 4‑9‑1971, 28‑9‑1972 to 31‑12‑1972, 1‑1‑1973 to 16‑8‑1973, 24‑2‑1975 to 31‑12‑1975 and 1‑1‑1976 to 6‑11‑1976, which still stand against him. In fact, it may be said that the Provincial Selection Board took rather a lenient view in approving this officer for promotion because the general policy is that after the third supersession the officer is permanently debarred from promotion (Annexure H) whereas in the instant case, Mr. Javed Dastgir Mirza was superseded/ignored by the Provincial Selection Board on half a dozen occasions. The request of Mr. Javed Dastgir Mirza for grant of pro forma promotion with effect from the date his next junior was promoted as AC/ADC was considered at length by this Department in 1986 and rejected on the following grounds:‑‑

(i) under the policy instructions on the subject (Annexure 1) pro forma promotion is admissible only in cases where the causes for not granting the original promotion are entirely removed. (ii) in the case of Mr. Javed Dastgir Mirza, the officer was consecutively ignored/superseded by the Provincial Selection Board on the basis of his unsatisfactory record of service. Since the adverse entries in his service record subsist, his case was not covered under the rules." Consequently the above reasons/grounds found favour with the Chief Minister and claim of the appellant was rejected by him vide minutes recorded on 10‑1‑1990 on the departmental file. We had the advantage of going through the confidential record of the officer. As narrated above he had earned very devastating adverse reports, as such the Board was well within their right to have ejected the claim. These reports are still intact and the representation filed by the appellant had failed to dislodge them. In presence of these reports we wonder how the officer could manage to continue in service. Anyhow there appears to be no merit in his appeal which is hereby dismissed. S.A./559/ST Appeal dismissed.