2006 SCMR 1862 (PLP)

SAIYED SAEED ASHHAD, J.

This petition for leave to appeal has been filed against the judgment dated 18-4-2005 of Federal Service Tribunal, Islamabad (hereinafter referred to as the "Tribunal") in Appeal No.602(R)C.E. of 2002.

2. Brief facts of the case appearing in detail in paragraph 1 of the judgment of the Tribunal are reproduced as under:-- ??????????? "Appellant Khawaja Shahid Nazir was a Zonal Administrator (BPS-18) in ??????? Evacuee Trust Property Board (ETPB) Rawalpindi. Vide Notification dated 29-6-?????? 2001 issued by the Minorities Affairs Wing of the Ministry of Minorities, Culture, ????? Sports, Tourism and Youth Affairs, he was appointed as Secretary in BPS-19 and ?????? was posted at Lahore w.e.f. 9th July, 2000. In para.2 of the Notification it was ?????? clearly stated that his appointment as Secretary in BPS-19 shall be on the same ?? terms and conditions as were applicable in the case of an official promoted to ?? BPS-19 on regular basis. In pursuance of Secretary, ETPB on 10-7-2002 a fresh ?? notification was issued by the same Ministry by which Mr. Muhammad Ijaz a ?? BPS-19 Officer of the District Management Group was appointed as Secretary ??????????? ETP Board Lahore on deputation. The appellant was directed to continue to serve ?? the Board in his substantive pay scale i.e. BPS-18. It is against this order that the appellant has filed the present appeal under section 4 of the Service Tribunals Act, ??????????? 1973. Earlier his departmental appeal filed on 8-4-2002 was not responded. It is ????????? prayed by the appellant that the impugned order by which he was downgraded ??????? from BPS-19 to 18 be set aside and he be restored as Secretary to the Board of ??? BPS-19."

3. The Tribunal by its impugned order allowed the appeal of the respondent, impugned order/notification dated 14-2-2002 was set aside and the respondent was restored to the position of Secretary in BPS-19. The Tribunal did not make any order with regard to his back benefits and further directed the department to take proceedings against the petitioner if so desired in accordance with the Rules. Hence this petition for leave to appeal.

4. We have heard the arguments of Mr. Muhammad Qamar-uz-Zaman, Advocate Supreme Court on behalf of the petitioners and Syed Asghar Hussain Sabzwari, Advocate Supreme Court on behalf of respondent.

5. Mr. Muhammad Qamar-uz-Zaman, Advocate Supreme Court assailed the order of the Tribunal on the following grounds: ??????????? (i) that the Tribunal erred in holding that vide notification dated 29-6-2000 the ? respondent was promoted to the post of Secretary (BPS-19) of the Evacuee Trust ???????? Property Board; ??????????? (ii) that by virtue of section 11(1) of the Evacuee Trust Properties (Management ?????????? and Disposal) Act, 1975 (hereinafter referred to as the "Act") Secretary lo the ??? ETP Board is to be appointed by the Federal Government and it was not a ???????? promotional post; ??????????? (iii) that the Tribunal wrongly interpreted the provisions of notification, dated 29-??????????? 6-2000 in holding that he was promoted to BPS-19 post on regular basis and in ? doing so completely ignored the stipulations contained in the said notification that ??????????? respondent was appointed as Secretary (BPS-19) until further orders; and ??????????? (iv) that the Tribunal completely ignored the objection raised by the petitioners ? relative to the incompetency of the appeal on the ground that his ??? appeal/representation to the departmental appellate authority was barred by time.

6. Syed Asghar Hussain Sabzwari, Advocate Supreme Court appearing on behalf of the respondent while supporting the impugned judgment submitted as under: ??????????? (i) that vide notification dated 29-6-2002 respondent was promoted to the post of ??????? Secretary in BPS-19 on regular basis and he could not have been reverted or ??? downgraded in BPS-18 without giving him an opportunity of hearing; and ??????????? ??????????? (ii) that the petitioners could not agitate the question of limitation as it would be ? deemed to have been decided by the Tribunal in favour of the respondent.

7. After taking into consideration the arguments of learned counsel for the parties and perusal of record it may be observed that the impugned judgment suffers from grave and serious illegalities and infirmities. The Tribunal had failed to interpret the notification dated 29-6-2000 in its true perspective by ignoring the clear stipulation contained therein that respondent was appointed as Secretary BPS-19 and such appointment was till further orders. From such stipulation it can be inferred without any doubt that it was not a regular appointment in accordance with section 11(1) of the Act and was by way of stopgap arrangement. This Court in the case of Abdul Majid Sheikh v. Mushafee Ahmed and another PLD 1965 SC 208 while examining the effect of the phrase "a person holds an appointment till further orders" pronounced that it only means that he hold it till orders are passed terminating his services. The mere fact that the notification also contained another stipulation that the appointment was on the same terms and conditions as are applicable to an officer promoted to BS-19 post on regular basis would not confer any vested right on respondent to claim appointment to the post of Secretary, Evacuee Trust Property Board.

8. The Tribunal also failed to take into consideration that the Evacuee Trust Property Board with the approval of the Federal Government framed Regulations namely Evacuee Trust Property Board Employees (Service) Regulations, 1984 according to which promotion of the employees of ETP Board has been confined upto BS-18 and the post of the Secretary of the Board being in BPS-19 is not a promotion post for such employees. As the appointment of the respondent as Secretary to the Board was by way of stopgap arrangement until further orders, he could be reverted without issuing him a show-caused notice or providing him an opportunity of hearing as no vested right has been created in his favour to hold the post of the Secretary of the Board. In the circumstances notification dated 14-2-2002 issued by Government of Pakistan, Ministry of Minorities, Culture, Sports, Tourism and Youth Affairs, appointing one Muhammad Ijaz an officer of District Management Group on deputation as Secretary of the Board and reverting the respondents in his own substantive pay scale of BS-18 was not in violation of any law, rules or regulation.

9. Petitioners in objections/parawise comments had objected to the competency of the appeal before the Tribunal on the ground that his appeal was barred by time having been filed after 52 days of the impugned notification. The reason advanced by. Syed Asghar Ali Sabzwari for delay in filing the appeal was that the notification/order, dated 14-2-2002 was not brought to his notice by the Board which fact came to his knowledge through a newspaper, he filed the departmental appeal on 8-4-2002. Even if admitting for the sake of arguments thy above explanation, it has not been stated as to when he came to know about the notification, dated 14-2-2002 through a newspaper to determine whether appeal filed on 8-4-2002 was filed within 30 days of his acquiring knowledge of his reversion. However, the contention that respondent had no knowledge of the notification dated 14-2-2002 as it was not brought to his notice is absolutely a false plea as from the material on record it is established that notification dated 14-2-2002 had been brought to his notice on very that day as he relinquished the charge of post of Secretary on 14-2-2002 in the forenoon. On 15-2-2002 he applied for 120 days earned leave and such application was signed by him as Ex-Secretary. Respondent should have filed his departmental appeal/representation/review within 15 days from 14-2-2002 but the same was filed on 8-4-2002 in accordance with section 9 of Removal from Service (Special Powers) Ordinance, 2000, which was in force at the relevant time, which on the face of it was barred by time. This Court has laid down the principle that when the departmental appeal/representation is time-barred then the Service Appeal would not be competent. Reference is made to the case of State Bank of Pakistan v. Khyber Zaman and others 2004 SCMR 1426.

10. The contention of Syed Asghar Hussain Sabzwari that the delay in filing the appeal would be deemed to have been condoned by the Tribunal, is without any substance as there is no provision in the Ordinance of 2000 for condonation of delay in filing a departmental appeal/representation/review.

11. For the above facts, discussion and reasons reversion of the respondent from the post of Secretary (BS-19) to his original position/status as an officer in BS-18 did not suffer from any illegality, irregularity or infirmity. The notification appointing Muhammad Ijaz as Secretary and reverting the respondent to BS-18 did not violate any right of the respondent as according to the Service Regulation of the Board an officer of the Board was not legally entitled to hold the post of the Secretary which is to be filled in by way of appointment and not by way of promotion.

12. Accordingly this petition is converted into appeal and is allowed. The impugned judgment of Federal Service Tribunal is set aside with no order as to costs. M.H./C-7/SC?????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.