2000 P, L C (C (PLP)

CH. MUHAMMAD ARIF, J.‑‑‑The background in which the instant appeal with leave of this Court against the judgment dated 27th March, 1994 of the Federal Service Tribunal, Islamabad. hereinafter referred to as the Tribunal, has arisen is that while the appellant was serving as Senior Population Officer, 'her services were terminated by the Appointing Authority on 8‑9‑1981, in pursuance of section 6 of the Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance (No. XIV of 1981). 'According to the appellant, termination of her services came about for the reason that she failed to appear for interview before Federal Public Service Commission on 22‑7‑1981 although she was on medical leave with effect from 17‑6‑1981 to 9‑8‑1981. It was in pursuance of the judgment of this Court dated 29‑2‑1984 in Civil Appeal No. 140 of 1984 reported as Federation of Pakistan and another v. Riaz Ahmed Baig and another (1984 SCMR 759) that she was reinstated in service retrospectively by order dated 19‑7‑1984 with a direction to report for duty at the place of her posting, in compliance of orders to be passed by the Secretary/Director General, Population Welfare Department. Consequently, requisite posting -order was passed whereby she was posted as Deputy District Population Officer, Sheikhupura for assumption of charge which she did on 29‑8‑1984. She challanged the validity of this order on 11‑6‑1986 in .a representation addressed to the Secretary/Director‑General of the Punjab Population Welfare Programme Government of the Punjab. Three other representations were made on different dates, between 15‑5‑1987 and 16‑6‑1988 but, as the same were not dilated upon by the Tribunal, their details are of no consequence. However, another representation was made on 14‑1‑1990 which was succeeded by yet another on 13‑9‑1990. On 11‑5‑1991, she was informed that her representation dated 13‑9‑1990 had been rejected. It was the order dated 11‑5‑1991 which was challenged by her on ‑19‑7‑1993 in Appeal No.240(L) of 1993 under section 4 of the Service Tribunals Act, 1973 seeking the following relief: "In view of the matter, it is respectfully prayed that the impugned order dated 11‑5‑1991 may kindly be set aside and respondents Nos.1 and 2 may kindly be directed to grant the appellant Grade‑17 w.e.f. 2‑2‑1972 with all consequential benefits of seniority and promotion. Respondents Nos.1 and 2 may further kindly be directed to pay the appellant the benefits of pay and allowances for the intervening period of termination and reinstatement i.e. 9‑9‑1981 to 28‑8‑1984. The appeal may kindly be accepted."

2. Paras. 5 to 8 of the judgment of the Tribunal dated 27‑3‑1994, read thus: "

5. It is evident from the facts that the first part of the relief regarding grant of BPS‑17 with effect from 2‑2‑1972 with all consequential benefits of seniority and promotion, relates to the period when she was not a civil servant. The appeal so far as this relief is concerned is incompetent and untenable on the strength of Supreme Court's ruling in Lutfi Siddiqui v. Secretary, Establishment Division, Rawalpindi (1991 SCMR 125), where reliance was placed on Zainul Abedin v. Multan Central Cooperative Bank Limited, Multan (PLD 1966 SC 445). "

6. In so far as the other relief is concerned, we are of the view that the appeal is time barred. As already pointed out before, the validity of order dated 19‑7‑1984 was challenged for the first time on 11‑6‑1.986, obviously long after the passage of the order. No reason has been mentioned in the application for condonation in explanation of this delay. The only argument advanced by the appellant's learned counsel was that since the appellate authority had not rejected the representation on the ground of limitation, the appeal is within time. We are not inclined to agree and hold that it is within the competency of the Tribunal to go into the question of limitation for filing the departmental appeal, regardless of the circumstance pointed 'out by the appellant's learned counsel. Reliance in support of this view may be placed on 1989 SCMR 174 and 1991 SCMR

640. The appellant's learned counsel cited 1990 SCMR 1356 and 1986 SCMR 1213 in support of his contention. These authorities are, however, not of any avail to the appellant, because they were based on distinguishable facts." "

7. Even on merits there is no case. It is claimed by the appellant that the order of her reinstatement was different in nature, in that it was treated as a medical case. It is contended that she is entitled to the emoluments of the period from 9‑9‑1981 to 28‑8‑1994, because her reinstatement was based on different considerations. However, this seems to be factually incorrect. The order relied upon by her in support of the contention is the one which was passed in respect of her posting as Deputy District Population Welfare Officer, Sheikhupura. This was not the order of her reinstatement. It was in fact the one passed on 19‑7‑1984 where there is no mention of the fact that she was being reinstated on any ground different from the ground relied upon in the cases of other officers. It is clear from the order that it was being passed, like in other cases, in pursuance of the judgment of the Supreme Court and that she was being reinstated prospectively. The order of her posting was only a consequential order and it cannot be made a basis for determination of the point whether she should be given a different treatment. She assumed duty as Deputy District Population Welfare Officer on 29‑8‑1984 in acceptance of the order and there is no reason why she should be treated to have been reinstated with retrospective effect." "

8. For these reasons, the appeal is dismissed. There will, however, be no order as to costs. Parties be informed."

3. It appears that the prayer for grant of Grade‑17 with effect from 2‑2‑1972 and for appointment in her original post of Deputy Director, was not previously attended to at the instance of the appellant in the representation/s detailed above. Her case against the private‑respondents herein who, we have been informed, have retired during the interregnum, was that she was senior to them in service. They were granted Grade‑17 with effect from 2‑2‑1972 alongwith consequential benefits of promotion and. seniority. She was also entitled to promotion with effect from 2‑2‑1972 being the date on which her juniors i.e., Mrs. Shahnaz Khan and Mrs. Ishrat Latif were promoted. The following chart, appearing in the middle of para.5 of the Memo. of Appeal before the Tribunal, is the main stay of the appellant in that behalf: "THE SENIORITY AND QUALIFICATIONS OF THE APPELLANT AND THOSE OF THE RESPONDENTS NOS.2 AND 3 ARE AS UNDER": Appellant Mrs. Respondent No.3 Respondent No.4 Bilqees Zaman Shehnaz Khan Ishrat Malik 1. . M. Se., Govt.

1. M.A. Sociology

1. M.A. Urdu College, Lahore

2. Graduated in

2. Service joined 2.Joined service Health Education in November, on 7‑5‑1968 from the 1967. University of Remained on North Canalena, long leave Chappel Hill, since 5‑5‑1974 U.S.A. to August, 1978 (Living in London).

3. Service joined in

3. Got Grade‑17

3. Got Grade‑17 December, 1966 w.e.f. 2‑2‑1972. w.e.f. 2‑2‑1972.

4. Got Grade‑17

4. Availed Ex‑ I 7, w.e.f. 1st July, Pakistan leave 1973. without pay from May, 1974 to August, 1978. Grade‑17 was first This period was of all given to the counted towards appellant w.e.f. seniority without 1‑7‑1974 and any justification respondents Nos.2 and in violation and 3 were given it of rules. w.e.f November, 1974 four months after the appellant.

According to the appellant, the grant of Grade‑17 to the private‑respondents No.2 and 3 w.e.f. 2nd February, 1972 was without considering her case and, therefore, her resort to the remedy of appeal under section 4 of the Service Tribunals Act, 1973 was in order.

4. Para.3 of the Leave Grant Order dated 27‑11‑1997 reads thus: "

3. With a view to examining her case in the proper perspective, we will have to interpret relevant provisions of the Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance, 1981, whereunder the petitioner and respondents Nos.2 and 3 were treated as civil servants. Any decision in this regard would be on a question of law of general public importance inasmuch as it will be of concern to a large number of functionaries involved in the Population Welfare Planning Programme. Therefore, leave is granted to the; petitioner to appeal against the' impugned judgment of the learned Service Tribunal."

5. Sh. Hamid Mukhtar, learned Advocate Supreme Court appearing in support of this appeal, has contended that as the appellant was senior in service to respondents Nos.2 and 3 therefore, she was also entitled to the grant of Grade‑17 on or before‑ 2‑2‑1972. She is also entitled to all the benefits, including seniority over respondents Nos.2 and

3. It was next contended by him that section 8 of Ordinance (No. XIV of 1981) provides that the seniority of persons appointed under section 3 thereof shall be determined from the dates of their appointments in that grade in the 'Council' or as the case may be, the 'Board'. The seniority position of private parties herein in the 'Board' was all that was to be maintained in their ease. According to him, the appellant being a civil servant the ratio decidendi in the case reported as Lutfi Siddiqui v. Secretary, Establishment Division, Rawalpindi (1991 SCMR 125), has been incorrectly applied to her case by the Tribunal. He text contended that appellant's earlier Appeal No.227(L) of 1982 was withdrawn by her on 20‑12‑1985 ".. on the promise of the department to settle her claim . . " and as the Department did not raise any objection to her instant appeal being barred by time, the learned Tribunal was in error in treating her instant appeal as beyond time. Moreover, the services of the appellant were ripe for regularization on 19‑7‑1984 i.e. after her reinstatement and the learned Tribunal fell into an error in not considering the fact that she could not make a representation prior to the said date.

6. Mr. Maulvi Anwar‑ul‑Haq, learned Deputy Attorney‑General for Pakistan and Mr. Sh. Altaf Elahi, learned Additional Advocate General, Punjab, respectively appearing for respondents Nos.1 and 4 in this cause, have supported the judgment whole hog. The former has also referred to appellant's representation dated 9th September, 1975 to contend that the grant of Grade‑17 to respondents Nos.2 and 3 was challenged by the appellant as being unjust and partial then and that the same, from all standard, was beyond time with the result that the learned Tribunal was quite right in resolving the question of limitation against her.

7. We have considered the arguments addressed at the Bar and have also perused the available material, with the help of the learned counsel for the appellant and the learned Law Officers. The learned Tribunal was quite right in holding that the first part of the relief regarding grant of BPS‑17 w.e.f. 2‑2‑1972 with all benefits appurtenant thereto, relates to the period when the appellant was not a civil servant as held by this Court in Lutfi Siddiqui v. Secretary, Establishment Division, Rawalpindi (supra).

8. As regards the findings by‑the Tribunal that appellant's appeal before it was beyond time, we are not inclined to hold to the contrary on the assertion that the Appellate Authority had not rejected her representation on the ground limitations. It was within the competence of the Tribunal to go into the question of limitation for filing the departmental appeal. Learned counsel for the appellant had nothing to urge against the findings of the Tribunal, above, which are strictly accord with this Court's observations in, among others, the cases respond as Muhammad Younis and 3 others v. The Chairman, 'WAPDA, Lahore and another, (1989 SCMR 174) and Zafar Muhammad, Ex‑Line Superintendent, WAPDA v. WAPDA through Superintending Engineer (Electricity) and another (1991 SCMR 640).

9. The assumption of duty by the appellant as Deputy Director, Population Welfare Officer on 29‑8‑1984 was in acceptance of the order ,dated 19-7-1984 and the same has not even so much as been alleged to have contained any writing' to indicate that she had been reinstated with retrospective effect. A perusal of para.9 of the impugned judgment clearly brings it to the fore that appellant's plea regarding the order of her reinstatement in service being different from order/s in relation to other officers in that she was treated on medical leave which entitles her to the emoluments for the period from 9‑9‑1981 to 28‑8‑1984, was rightly repelled by the Tribunal with the observations that order of 19‑7‑1984 was passed, like in other cases, in pursuance of the judgment of this Court in the case of Lutfi Siddiqui (supra).

10. No other point was urged.

11. The above are the reasons for our short order of even date which reads thus: "For the reasons to be recorded later on, the appeal is dismissed. But no order as to costs." Q.M.H./M.A.K./B‑19/S Appeal dismissed.