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Civil Appeal No. 288 of 1983, decided on 15th June, 1986.

(From the judgment of the Federal Service Tribunal, dated 10‑5‑1983, .passed in Appeal No. 71 (R) of 1981).

‑‑‑Art. 212(3)‑‑Service Tribunals Act (LXX of 1973), S. 4‑‑Leave to appeal granted to consider whether in view of circumstances of case appeal of civil servant before Federal Service Tribunal was at all competent and not barred by limitation.

‑‑‑S. 4‑‑Appeal‑‑Limitation‑‑Once Tribunal after 4pplying its mind held an appeal to be barred by time it could not ignore its own finding and come to a different conclusion.

‑‑‑S. 4‑‑Appeal‑‑Seniority‑‑Civil servant, an employee in Embarkation Headquarter, himself seeking transfer to G . H . Q. and giving an undertaking that he would not claim seniority towards any further promotion on transfer to General Headquarters and would be deemed to be on deputation‑‑Civil servant after a stay of six years in G.H.Q. making prayer for counting his seniority as U . D . C . in G . H . Q. from date he was confirmed as such in his parent department‑‑Civil servant, held, was not entitled to seniority as claimed, but his seniority would be determined from date on which he joined G.H.Q.‑‑Order of Service Tribunal to the contrary set aside.

Munir A. Sheikh, Deputy Attorney‑General instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Appellant.

Abid Hasan Minto, Senior Advocate Supreme Court with Ch. Ghulam Dastgir, Advocate‑on‑Record (absent) for Respondent No. 1.

Remaining Respondents: Ex parte.

Date of hearing: 15th June, 1986.

This appeal, by leave of the Court, arises from the order of the Federal Service Tribunal, Islamabad, dated 10‑5‑1983, by which the appeal of Muhammad Maqsood was accepted and he was allowed seniority in the Grade of U.D.C:, with effect from 12‑5-1952 and it was further ordered that on that basis of his seniority roc Assistant also he determined.

2. The facts of this case, in brief, are that Muhammad Maqsood respondent joined the Embarkation Headquarters, Karachi, as L.D.C. on 8‑3‑1949. He was promoted as U . D . C . on 10‑1‑1952 and confirmed as such on 12‑5‑1952. In 1956 it was proposed by the Movement and Quartering Directorate to utilise the services of clerks trained by Embarkation Headquarters at Karachi and Chittagong in the G.H.Q., Rawalpindi. The respondent was asked to join service in G.H.Q., Rawalpindi but he expressed his unwillingness and thus the proposal was dropped. It was somewhere in 1962 when the respondent on his own expressed the desire to join service in the General Headquarters as U . D . C . on temporary basis. Before joining the service in the G . H . Q . the respondent on 19‑9‑1962 gave an undertaking in writing that he would not claim seniority towards his further promotion on transfer from the Embarkation Headquarters, Karachi to G.H.Q., Rawalpindi and that his services in the G. H. Q. would be deemed to be on deputation. He thus joined the present Department as U . D . C . , with effect from 14‑6‑1963. After about six years he approached the Quartering Directorate with the request that he should be treated as permanent U.D.C. in the G.H.Q., with effect from 12‑5‑1952, i.e., from the date on which he was confirmed as U . D . C . in his parent Department. This plea was, however, rejected by the Chief Administrative Officer on 8‑6‑1970 holding that his seniority in the G.H.Q. would be counted from the 14th June, 1963. It was also held that during the tenure of his service in the G. H . Q. he would continue holding his lien on his substantive appointment of U . D . C . in his parent office till he got higher appointment in the Embarkation Department. His seniority was thus fixed as U.D.C. at serial No. 310‑A in the G.H.Q., with effect from 14‑6‑1963 and a list was duly published in August, 1972. The respondent made another effort in respect of his seniority but the same was also turned down on 2‑9‑1972. Subsequently on the basis of seniority list of 1972, the respondent No. 1 was confirmed as U . D. C. in the G . H . Q . on 3‑9‑1977 , promoted as temporary Assistant on 18‑9‑1976, confirmed on the said post on 4‑9‑1977 and is now working as a Superintendent, with effect from 24‑1‑1983. Another seniority list of temporary Assistants was published on 24‑9‑1980 and objections were called for by 31st October 1980. Accordingly the respondent made a representation praying for determination and re fixation of his seniority, with effect from 12‑5‑1952 but the same was rejected holding that the seniority would be considered on the basis of orders, dated 8‑6‑1970 and 2‑9‑1972 and he was informed accordingly on 7‑12‑1980. His appeal before the Chief of General Staff did not materialise and, therefore, as a last resort he filed an appeal before the Federal Service Tribunal which has resulted in the impugned order.

3. Leave was granted to consider whether in view of the circumstances of the case, the appeal of the respondent before the Federal Service Tribunal was at all competent and not barred by limitation.

4. The learned counsel for the parties heard and the order of the Federal Service Tribunal perused. The learned counsel for the appellant has challenged the orders of the Tribunal on two‑fold, ground. Firstly, he submitted that once the Tribunal having held on 13‑5‑1981 the appeal of the respondent with regard to ante‑dating promotion as barred by time, it acted in excess of its jurisdiction in re‑opening the question of limitation and overruling the objection of the appellant by holding that the appeal was within time and, secondly, that the Tribunal has misdirected itself in holding that since the respondent was transferred from E. H . Q. , Karachi to G . H. Q. Rawalpindi for administrative reasons and in public interest the respondent could not be deprived of the benefit of continuous service in E.H.Q. for the purpose of seniority.

5. We have carefully examined both the objections and have come to the conclusion that both must prevail. As for the first objection, the appeal of the respondent came up for preliminary hearing before the Tribunal on 13‑5‑1981 when the learned counsel for the respondent was heard and the following order was passed:‑

"The appeal resolves itself in the two distinct questions:

(1) Whether appellant is entitled to seniority w.e.f., the date of his appointment in G.H.Q.

(2) If from 1963 onwards i.e. from the date of transfer to G. H. Q. is there any error in the seniority list affecting him adversely

As regards claim of seniority from the date of original appointment in E.H.Q., the question was finally decided, vide A.C.A.0's. Letter No. 0117/5221/A‑2b, dated 8th June, 1970. The issue decided, never taken up in appeal before the department or brought before the Tribunal after its establishment in 1974, with regard to ante‑dating promotion will be time‑barred. The only live question would be whether there is any error in seniority as counted, from the date of his transfer to G . H . Q. in 1963. The appeal is admitted to the extent. Issue notice to the parties after due compliance with rules."

When the matter came up for regular hearing on 30‑3‑1983, the Tribunal absolutely oblivious and unmindful of its previous order, dated 13‑5‑1981 and on objection having been taken by the appellant after dilating upon the question of limitation in detail, which had no bearing on the facts of the instant case, held that the appeal filed by the respondent was within time. As the case stands, in view of the previous order of, the Tribunal, dated 13‑5‑1981, we have no hesitation in holding that the subsequent order of the

Tribunal, dated 30‑3‑1983 holding the appeal to be within time is not only erroneous but is in excess of its jurisdiction inasmuch as once the Tribunal after applying its mind having held the appeal to be barred by time could not ignore its own finding and come to a different conclusion. This proposition could not be controverted by the learned counsel for the respondent and thus the first objection of the learned counsel for the appellant is sustained.

6. So far as the second objection is concerned, the Tribunal obviously was labouring under a misconception in that it was of the view that the respondent was transferred from Karachi to Rawalpindi as a result of conscription being for administrative reasons and in public interest and thus was entitled to the benefit of continuous service rendered at the G.H.Q. for the purpose of seniority. True that at an earlier stage the service of the respondent was required at Rawalpindi for handling of stores but then he had expressed his unwillingness to come to Rawalpindi and it was then that after quite a long time he expressed his intention to join the G . H . Q. and in doing so gave an undertaking in writing on 19‑9‑1962 which is couched in the following words:‑

"I, Muhammad Maqsood (U . D . C .) hereby certify that I will not claim seniority towards my further promotion on transfer to General Headquarters, Rawalpindi, from Embarkation Headquarters, Karachi.

I clearly understand that on my transfer to General Headquarters I will be deemed as on deputation but no deputation allowance) will be admissible to me nor will I claim same.

Date: 19th September, 1962.

(Sd. Muhammad Maqsood (U.D.C.)"

The perusal of the undertaking makes it abundantly clear that the respondent was not transferred to Rawalpindi in the public interest, he would not be entitled to any seniority for further promotion and that he would be deemed to be on deputation. The respondent joined service with the G . H . Q. on 14‑6‑1963 as U . D . C . It was after about six years that he made a representation that he should be treated as permanent had in the G . H . Q. , with effect from 12‑5‑1952, the date he was confirmed as U . D . C . in his parent Department. This, however, was turned down and it was held that his seniority in the Grade o U . D . C . would be determined from 14‑6‑1963, the date on which he joined the G.H.Q., and he was informed accordingly on 8‑6‑1970. After that he made a number of representations but the same were turned down and rightly too because it was his own case that he would not claim seniority towards his promotion on transfer to G . H . Q. and that he would be on deputation. When the learned counsel for the respondent was confronted with this undertaking he was unable to advance the case of the respondent. To another question whether anybody junior to him in the Department has been promoted, the learned counsel candidly conceded that nothing of the sort has so far happened, meaning thereby that the respondent had no cause of action at all and the appeal before the Tribunal was no competent.

7. In view of the above, the appeal succeeds and is allowed and the order of the Tribunal, dated 10‑5‑1983 is set aside, with no order as to costs.

M.Y.H. Appeal accepted.

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