1983 PLP 482 (SCMR)

M. S. H: QURAISHI, J.‑In this case respondent Siddiq Ahmad Chaudhry, who had been working as officiating Divisional Engineer in the Agricultural Machinery Organization (A. M. O.) of the That Development Authority, was suspended from service and later his services were terminated with effect from 5‑11‑1966, against which he succeeded in obtaining a declaration from the High Court in its writ jurisdiction. 1n the meantime, the That Development Authority was abolished and the A. M. O. was taken over by the Agriculture Department. The Administrator, That Development Authority (the Provincial Chief Secretary), ordered on 14‑2‑1970 that the respondent be considered to have been working in the post of Divisional Engineer (Workshop) during the period of his suspension. The respondent who had joined service as temporary Assistant Engineer in the Irrigation and Power Department with effect from 3‑10‑1967, was cleared by the Public Service Commission on 6‑8‑1970 for appointment as XEN. But before a decision could be taken by the Govern ment in this regard, the respondent, by letter dated 4‑7‑1971 addressed to the Secretary of his Department (Irrigation and Power) requested that as he had no intention of being inducted into Class‑1 first and then appointed as permanent XEN under the Irrigation Engineers Service (Class‑I) Rut‑Is, 1967, he be appoin ted as officiating XEN on pay and allowances as drawn by him with effect from 15‑2‑1970 and that he would be entitled to the benefits which accrued to other Class‑II and temporary Engineers officiating as Executive Engineers. This letter was acted upon and he was appointed, by notification dated 17‑3‑1972, as officiating Executive Engineer in the Irrigation Department with immediate effect. There is nothing to show that the respondent retracted his earlier request. Nevertheless, he made a representation on 21‑5‑1972 that he was entitled to, the last pay drawn by him in the T. D. A. and that his dale of appointment should be 29‑6‑1970 as in the case of other Members of the Agricultural Machinery Organization. He made yet another representation, perhaps in 1977, requesting that "the orders of my absorption in the Irrigation and Power Department may be suitably amended and I may be considered to have been absorbed on the equivalent post of Executive Engineer w. e. f. 15‑2‑1970 and allowed the pay last drawn by me as Executive Engineer is the defunct That Development Authority The request was turned down on 22‑8‑1979 against which he filed an appeal before the Tribunal. In the appeal he also challenged the seniority lists notified on 17‑3‑1972, 27‑11‑1972 and 19‑8‑1975. The Tribunal accepted his assertion that the letter dated 4‑7‑1971, which was to his own detriment, could not have been written of his own volition. An objection raised as to limitation of the appeal on the basis of the ruling given by this Court in Ahmad Ali Memon v. The Government of Sind and others (1980 S C M R 260) was repelled for the reason that the ruling had seen the light of day much after the filing of the appeal, before which the settled position was that an appeal could be filed within 30 days of the making of the final order. The Tribunal, therefore, not only accepted the appeal but also directed that the respondent "should be considered to have been absorbed as Executive Engineer in the Irrigation and Power Department with effect from 6‑8‑1970 i. e., the date when the Public Service Commission gave its approval to his absorption/appointment" and that the seniority lists impugned be amended accordingly.

2. Learned counsel contends, inter alia, that as the Department had acted upon the written request of the respondent himself, he had no locus poenitentlae and moreso when the request had not even been specifically retracted. It is also submitted that the question of his promotion as XEN was a matter for the Government to decide and as such the Tribunal could not arrogate to itself the power of ordering such appointment. The points raised require consideration. We accordingly grant leave to appeal. Secu rity Rs. 1,

000. Leave granted.