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Appeal No. 286/29 of 1976, decided on 11^th November, 1979.

‑‑ S. 4‑Limitation‑Departmental representation rejected in 1972 Seeond representation made in 1976, held, could not enlarge time.

S. 4‑‑Seniority position as in list of 1972 neither challenged before Punjab Civil Services Appellate Tribunal nor at departmental level‑Appeal, held, not maintainable.

‑‑ S. 4(1), proviso (a)‑Appeal‑Not maintainable in absence of depart mental representation.

‑‑ S. 4(1), Proviso (c)‑Promotion of respondent made before 1‑7‑1969‑Appeal challenging same not maintainable.

By this appeal under section 4 of the Punjab Service Tribunals Act, instituted on 6‑10‑1976, the appellant Muhammad Ishaque of the Excise and Taxation Department, Sahiwal, seeks seniority over respondents Nos. 3 to 5 in the rank of Excise and Taxation Inspectors. The respective dates of appointments of the appellant and the respondents as Sub‑Inspector and Inspector, are as under :‑

The respondents were governed by the Punjab Excise Subordinate Service Rules 1932, whereas the appellant in the matter of his terms and conditions of service was governed by the Punjab Taxation Subordinate Service Rules, 1954. It appears that on 13‑7‑1964, the Government of West Pakistan vide Notification No. 934‑64/1640‑E (E & T), dated the 13th July, 1964, directed as follows :‑

" . . . . . both the cadres of Excise/Taxation Inspectorate staff should be amalgamated and made interchangeable with effect from 1st December, 1964. Their designation henceforth will be Excise and Taxation Inspectors and Sub‑Inspectors."

Subsequently, in the year 1966, the West Pakistan Excise and Taxation Department's Subordinate Service Rules, 1966, were framed and rule 9 of the same contained the provision for maintaining a common seniority for the Excise and Taxation Sub‑Inspectors and explanation 3 to the said Rule provided that junior official, on appointment to the higher grade, shall be deemed to have superseded the senior official only if both senior and junior officials were considered for the higher grade in juxtaposition. The claim of the appellant appears to be that Respondent Nos. 3 and 4 were given accelerated promotions as the rules applicable to them. The Punjab Excise Subordinate Service Rules, 1952, so provided. Moreover, his contention was that after the Notification dated 13‑7‑1964, issued by the Government, it was incumbent upon the department to maintain a joint Seniority List of the Excise and Taxation Subordinates effective from 1‑12‑1964, and to make the promotions accordingly. He further submitted that in any case on 11‑11‑1966, proper rules have been framed and thus the authorities were left with no power to make the promotions of respondent No. 5 on 3‑12‑1969 contrary to the aforesaid rules. He submitted that the Seniority List published in the year 1972 was clearly incorrect as the department did not amalgamate the services of the Excise and Taxation Department till 1971 and thus any promotions made in the year 1964 to 1971 could not affect his seniority rights. He also placed reliance on the two decisions of the Punjab Civil Services (Appellate) Tribunal, in Appeal No. 21,/25 of 1971, In re: Raja Muhammad Dedar Khan Excise & Taxation Department, Gujranwala v. The Member, Board of Revenue etc. and another decision dated 13th or October, 1970 on the appeal fried by Mr. Altaf Ahmad Waraich, Excise Sub‑Inspector in which the Tribunal expressed surprise that the services had not been amalgamated till then although the Government had directed in 1964 and also the rules had been framed in 1966. The Tribunal had directed that the cases may be reconsidered in the light of the above directions. With these submissions, he pressed for the acceptance of this appeal. 'The learned Government Pleader, in the first instance, raised a preliminary objection that the appeal was barred by time inasmuch as the appellant made the first representation on 25‑4‑1965 and again on 29‑3‑1972 which was rejected on the 25th of July, 1972. Thus the appellant was required to move this Tribunal within six months of the establishment of this Tribunal, and the appeal filed on 6‑7‑1976 was badly barred by time. He also pointed out that the second representation made by the appellant on 3‑5‑1976 which was rejected on 3‑9‑1976 was of no avail to the appellant. He submitted that it was also incumbent upon the appellant to approach the Punjab Civil Services (Appellate) Tribunal in 1972, like the other two other persons who approached the Civil Service Appellate Tribunal. His failure in this behalf precluded him to challenge the seniority at this belated stage. The learned Government Pleader went on to point out that in the Seniority List published in the year 1972, the name of the appellant appeared at serial No. 74 whereas the names of respondents Nos. 3 to 5 were shown at Serial Nos. 27, 32 and 59 respectively. Thus he himself wanted to be brought down to serial No. 26, but he has not impleaded the persons mentioned at serial Nos. 28 to 31, 33 to 58 and 60 to 73. He also pointed out that the appellant was not eligible to contest the appointment of respondent No. 5 made on the basis of merit quota in the year 1969, under rule 5(4)(a)(ii) of the West Pakistan Excise and Taxation Subordinate Service Rules, 1966. In fact his representation against the same was rejected in 1970. He also argued that the appointments of respondents Nos. 3 and 4 having made long before 1‑7‑1969, were immune from any attack in this appeal in view of the proviso (c) to section 4(1) of the Punjab Service Tribunals Act, 1974. He also brought to our notice that even in the year 1971, on the amalgamation of the Excise and Taxation Wings the appellant had to be reverted on 30‑4‑1971 and was again promoted on 14‑9‑1971. Thus his case was duly considered and as such he was not entitled to get any. seniority beyond the date of his continuous officiation as Excise & Taxation Inspector, w. e. f. 10^th of September, 1971. He thus pressed that the appeal merits to be rejected both on the ground of limitation and also on merits. Mr. Masud Ahmad Riaz, the learned counsel for the Respondent No. 3 brought to our notice that the appellant never contested the seniority and the representation filed by him pertained to promotion and the same was rejected by the department. He thus submitted that since the appellant had not disputed the fixation of seniority by any departmental representation, therefore, the appeal was hit by proviso (a) to section 4(1) of the Act. He thus pressed for the rejection of the appeal.

After hearing both the parties, we have no hesitation in rejecting this appeal which appears to be hopelessly barred by time and also incompetent tinder section 4 of the Service Tribunals Act, 1974. There was no rebuttal by the appellant that his representation had been rejected in July, 1972. It is obvious that after the rejection of his representation by the Department, the second representation preferred by the appellant on 3‑5‑1976fA could not enlarge the time. This appeal was filed on 6‑10‑1976 is evidently barred by time. Even otherwise the objection of the respondent appeared to be well founded that the appellant never challenged the seniority as he had been contesting the promotion of respondents Nos. 3 to 5. Thus the appellant ought to have questioned the seniority either before the Punjab Civil Services Appellate Tribunal, or at the departmental level without which s he could not maintain this appeal and that too at this belated stage. In the absence of any departmental representation, the appeal was also hit proviso (a) to section 4(1) of the Punjab Service Tribunals Act. Even the promotion of respondent Nos. 3 and 4 was made long before 1‑7‑1969. The appeal was also hit by proviso (c) to section 4(1) of the said Act. As regards Respondent Nos. 5. he was promoted against a vacancy falling in merit quota for which the appellant was not considered eligible. Thus the appellant had no claim for promotion to this post on seniority basis. Even in the orders passed by the Civil Services (Appellate) Tribunal, in the cases relied upon, by the appellant himself, we find that respondents Nos. 3 and 4 had been impleaded as respondents Nos. 2 and 6, and, therefore, their promotions were upheld by the said Tribunal also on merits too. We find that appellants' date of continuous officiation is later. We, therefore, find no substance in this appeal. The appeal is accordingly dismissed both on the legal grounds and also on merits. Consequently, the appeal fails and is rejected. However, there will be no order as to costs.

Appeal rejected.

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