1996 PLP (C (PLC(CS))

SALEEM AKHTAR, J.‑‑‑The appellant with the leave of the Court has challenged the judgment of the Sindh Service Tribunal by which his appeal against the order rejecting his representations was dismissed.

2. The appellant was appointed as Assistant Agricultural Engineer on 25‑2‑1967 on ad hoc basis, but thereafter having been selected by the West Pakistan Public Service Commission, he was appointed as Assistant Agricultural Engineer on regular basis in Grade‑17 with effect from 23‑10‑1967. In the list prepared by the West Pakistan Public Service Commission on merit basis the appellant secured first position while respondent No. 4 who was also selected for regular appointment in the same batch secured fifth position. Respondent No. 5 was selected for the post of Assistant Agricultural Engineer in Grade‑17 by a Selection Board of the then Agricultural Development Corporation on 26‑10‑1967. In the year 1973, respondents Nos. 4 and 5 were given promotion in Grade‑18 on ad hoc basis. By Notification dated 24‑2‑1981 the promotion of respondent No. 4 was ordered to be treated on regular basis to Grade‑18 with effect from October, 1973. The appellant protested against the aforementioned ad hoc promotions of respondents Nos. 4 and 5 by submitting a representation dated 30‑4‑1973 to respondent No. 3 and as no reply was received, another representation-dated 12‑9‑1977 was submitted without any result. By Notification dated 24‑2‑1981 when respondent No. 4 was promoted on regular basis in Grade‑18 with effect from October, 1973, the appellant submitted, his appeal/review petition to respondent No. 1 on 21‑3‑1981. A reminder was sent on 13‑9‑1981. Thereafter reminders dated 14‑3‑1982, 30‑3‑1983, 7‑2‑1984, 31‑1‑1985 and 2‑2‑1985 were filed, but no reply was received by the appellant. He also sent a telegram-dated 25‑3‑1985 to respondents Nos. 1 to 3, which also remained unattended. The appellant then filed a Constitution petition in the High Court of Sindh in May, 1985 in which, inter alia, it was prayed that respondents Nos. 1 to 3 be directed to decide the representations/review filed by the appellant. The respondents filed their comments in the High Court from which it transpired on the date of hearing namely 22‑8‑1985 that the Services General Administration and Information Department, Government of Sindh had passed order dated 8‑3‑1982 rejecting appellant's claim for seniority over respondents Nos. 4 and 5 in Grade‑

18. From the order it transpired that the appellant was superseded due to adverse remarks in his A.C.R. for the year 1972. The appellant then filed appeal before the Sindh Service Tribunal against order dated 8‑3‑1982 claiming that it was communicated to him on 22‑8‑1985. It was further alleged that the adverse remarks in the A.C.R. for the year 197 were never communicated to the appellant and, therefore, could not be made basis for the said order. The appeal was dismissed by the impugned judgment dated 30‑7‑1991. It was held by the Service Tribunal that the appeal was barred by time and further that the jurisdiction of the Tribunal was barred under section 4, proviso (b) of the Sindh Service Tribunals Act, 1973. Leap c was granted to consider inter alia the following questions:‑‑ (i) Whether the appeal filed by the appellant before the Tribunal was barred by time? (ii) Whether the jurisdiction of the Sindh Service Tribunal was barred by proviso (b) to section 4 of the Sindh Service Tribunals Act, 1973? (iii) Whether adverse remarks in A.C.R. for the year 1972 could be made a basis for order dated 8‑3‑1982?

3. Mr. Manzoor Ali Khan, learned Advocate Supreme Court contended chat there was no proof that order dated 8‑3‑1982 was communicated to the appellant by a letter posted on 17‑4‑1982. The respondents had filed affidavit of a Clerk named Farooq in which it was stated that the order dated 8‑3‑1982 was sent by post to the appellant on 17‑4‑1982. This has been accepted by the Tribunal and, therefore, the appeal was held to be barred by time. The appellant has taken the stand that the affidavit of Farooq merely establishes that the said letter was given to the peon for posting, but there is no proof that the same had been posted and received by the appellant. It is true that the letter seems to have been prepared and diarised in the register, but there is no further material to prove that it was posted or received and duly communicated to the appellant. If the decision on this aspect would have been restricted to the affidavit of the e appellant and counter‑affidavit by the respondents, perhaps the Court may have been inclined to presume that it must have been received by the appellant, but there are many other facts and circumstances, which have been brought on the record and have been completely ignored by the Tribunal thereby causing complete miscarriage of justice. The appellant had been making representations referred above one after the other, but none were replied. In all these representations and reminders, he had been stating that his earlier representation against the promotion of respondents Nos. 4 and 5 in Grade‑18 with effect from October, 1973 be decided. The mysterious silence of respondents Nos. I to 3 in completely ignoring or refusing to convey any decision if at all taken, reflects upon their conduct and working and in these circumstances, burden was heavily shifted on respondents Nos. 1 to 3 to prove that the order dated 8‑3‑1982 was duly communicated to the appellant. They have not placed on record a single letter by which they had rejected or even replied the representation made and the reminders sent from time to time. The appellant even went to the extent of filing a Constitution petition seeking direction that the respondents may be directed to decide the representation filed by him. In such circumstances, the Court would be justified to believe that no communication as alleged by the respondents was made because according to normal official conduct while dealing with the Government servants, the Government Department ought to have replied at least once or twice as they had been showered by so many reminders making allegations of not deciding his representations. The order dated 8‑3‑1982 came to the appellant's knowledge when he filed the writ petition and the same was filed with the counter‑affidavit on 22‑8‑1985. As we have observed that the appellant came to know about it on 22‑8‑1985 and filed appeal on 18‑9‑1985, the appeal would be within time.

4. The learned counsel for the respondent No. 4 contended that the appellant should have waited for 90 days for the reply and thereafter should have filed the appeal within 30 days before the Service Tribunal and thus there would have been no question of his appeal being time‑barred. That was a possible way to take proceedings, but the law gives option to wait for the decision of the authority and if such decision has been rendered and communicated to him, thereafter he can file appeal within 30 days of such communication. The appellant had opted for the second course and no sooner the order rejecting his representation was communicated to him, he filed appeal, which, in our view, is within time.

5. The next question for determination is about the jurisdiction of the Service Tribunal, which was held to be barred under proviso (b) to section 4 of the Sindh Service Tribunals Act, 1973. The learned counsel for the appellant contended‑that he would not pray for retrospective promotion, but would like the seniority to be determined under Rule 13 of the Sindh Civil. Servants (Probation, Confirmation and Seniority) Rules, 1975. Looking to the restricted and limited prayer the appellant has made, there can be no two opinions that such prayer was not barred under proviso (b) to section 4 of the Sindh Service Tribunals Act, 1973 as the question of fitness for promotion is not involved. The admitted position is that the appellant was senior to respondents Nos.4 and 5 in Grade‑

17. Respondents Nos. 4 and 5 were, however, promoted on ad hoc basis in Grade‑18 in the year 1973, but by Notification dated 24‑2‑1981, respondent No. 4 was ordered to be treated on regular basis in Grade‑18 with effect from October, 1973. The seniority of a civil servant who is not promoted on his turn but is subsequently promoted, is to be determined in the light of the provisions of rule 13 of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, which reads as follows:‑‑ "

13. A civil servant, who is not promoted on his turn on the ground that‑‑ (i) his seniority is under dispute or is not determined; or (ii) he is on deputation, training or leave; or (iii) disciplinary proceedings are pending against him; or (iv) he is not considered for ‑ promotion for any reason other than his unfitness for promotion; shall on subsequent promotion, subject to any order made by the competent Authority in this behalf, for the purpose of inter se seniority in the higher grade, be, deemed to have been promoted in the same batch as his juniors." The aforesaid clause (iv) of rule 13 is the amended version, which was so amended by Notification No. SOIX‑REG(S&GAD)2/I/1‑74, dated 9‑9‑1976. It clearly provides that a civil servant, who was not considered for promotion for any reason other than his unfitness for promotion, is subsequently promoted subject to any order made by the competent Authority in this behalf for the purpose of inter se seniority in the higher grade, shall be deemed to have been promoted in the same batch as his juniors. If a civil servant, who has not been considered for promotion at a stage and is subsequently promoted and no order for inter se seniority has been passed by the competent Authority; then such civil servant would be entitled to have been promoted in the same batch as his juniors, meaning thereby that he will maintain the seniority of his batchmates. Merely because of non‑consideration for any reason, he will not be deprived of his seniority among the civil servants promoted in the same batch, who may even be junior to him. The appellant was not considered as it was alleged that there was an adverse remark in his A.C.R. for the year 1972. The appellant challenged that this adverse A.C.R. for the year 1972 was never communicated to him. The respondents have not brought anything on record at any stage to prove that such adverse remarks were duly communicated within the time contemplated by the Rules. Non‑communication of adverse remarks makes the authenticity of such remarks completely ineffective. On the basis of such un-communicated remarks, a civil servant cannot be subjected to any adverse order. Therefore, the entire ground for not considering the appellant while promoting respondents Nos. 4 and 5 was completely without any basis and legal justification. Rule 13 (iv) of the aforesaid Rules is wide enough as it speaks of non‑consideration due to any reason, which has not been specified at all. The only restriction is that the authority must pass an order for inter se seniority at the time of promoting out of turn while not considering a civil servant for any reason. The respondents have not‑passed any such order to comply with the provision of rule 13(iv) and were, therefore not justified in not considering him alongwith respondents Nos. 4 and

5. The appellant when considered and promoted in Grade‑18, shall maintain his seniority as provided by rule 13(iv). To this extent the appeal is allowed. A.A./A‑1378/S Appeal accepted