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Civil Appeal No. 49 of 1983, decided on 30th September, 1985.

(On appeal from the judgment and order of the Punjab Service Tribunal Lahore, dated 29‑3‑1981, passed in Appeal No. 328/475 of 1975).

‑‑‑Art. 212(3)‑‑Civil service‑‑Leave to appeal granted to examine (i) whether there was a failure on part of Service Tribunal to enforce law laid down by Supreme Court in Ahmad Ali Memon v. The Government of Sind 1980 S C M R 260; (ii) Whether Service Tribunal justifiably allowed respondent to resile from a written undertaking submitted by him which he never earlier challenged though the undertaking was acted upon to his knowledge and (iii) whether Service Tribunal could substitute order of Governor by altering nature of his appointment from officiating to the regular one.

‑‑‑S.4‑‑Appeal‑‑Limitation‑‑No representation at all lay against order of Governor‑‑Time taken in filing representation, in awaiting disposal was a time wasted and, therefore, was not condonable‑‑Right of appeal where existed, it implied one such right and not its repeated exercise‑ Order relied upon for extension of limitation was not referable to first representation but to subsequent one, right of appeal under S. 4, held, came to an end with filing of first representation and expiry of period prescribed under S . 4.‑‑[ Limitation ] .

‑‑S.4‑‑Appeal‑‑Appellant avoiding undertaking on ground of having been taken from him under undue influence and pressure‑‑No such grievance was expressed by appellant in his representation, against person having pressurised him and exerted undue influence on him‑‑Such person was not personally impleaded in appeal to answer such allegations‑‑Appeal, held, was not competent in circumstances.

‑‑S.4‑‑Punjab Civil Servants Act (VIII of 1974), S.21‑‑Appeal‑ Limitation ‑‑Condonation of delay‑‑Representation against order of Governor to Secretary of Provincial Government was not sustainable‑‑period spent pursuing a misconceived representation, held, could be of no avail for explaining delay in circumstances.‑‑[Limit on].

‑‑‑S.4‑‑Punjab Civil Servants Act (III of 1974), S. 21‑‑Allegation of highhandedness, pressure and undue influence by a civil servant against Secretary to Provincial Government‑‑Such civil servant, geld, was entitled and could express himself against said seniority to provincial Governor‑‑Civil servant having not done so, could not have sought and obtained an adjudication on points of undue influence etc. Silence of civil servant on the subject, therefore, could not be accounted for on plea that he was in "terrorem" all the while‑‑Adjudication on such allegations also could not take place in absence of Secretary having been impleaded‑‑Service Tribunal, therefore, could not record an adverse factual finding without any material or there being proper parties before it.

Siddique Ahmad Chaudhry and others v. Chairman W.P.

Agricultural Development Corporation & others P L D 1968 Lah. 685 ref.

‑‑‑Art. 212(3)‑‑Punjab Service Tribunals Act (IX of 1974), S,4‑‑Punjab Civil Servants Act (VIII of 1974) S. 21‑‑0 & M Establishment Manual, Vol II (Revised), p.614‑‑Punjab Service of Irrigation Engineers (Class I) Rules, 1967, r.18‑‑Officer rendered surplus on account of dissolution of Thal Development Authority‑‑Employee of Authority was absorbed in other department and appointed on equivalent post and allowed pay last drawn by him, which thus made it not a case of direct recruitment stricto senso under Punjab Service of Irrigation Engineers (Class I) Rules, 1967‑‑Employee filing copy of order promoting him as officiating Divisional Engineer in Thal Development Authority and interpreted same to imply automatic confirmation on that post after expiry of probationary period‑‑No order o: confirmation was placed on record and even Service Tribunal did not record a finding of a fact that he was confirmed in his post in Thal Development Authority‑‑Such employee, held, had no case of automatic confirmation in circumstances.

Khawaja Muhammad Akram, Advocate Supreme Court and Ejaz Ahmad Khan, Advocate‑on‑Record (absent) for Appellants.

M. Nawaz Abbasi, Assistant Advocate‑General and Rao Muhammad Yousaf Khan, Advocate‑on‑Record for Respondent No.l.

D.M. Awan, Senior Advocate Supreme Court and Sh. Masud Akhtar, Advocate‑on‑Record for Respondent No.3.

Dates of hearing: 25th and 29th June, 1985.

Leave to appeal was granted under Article X212(3) of the Constitution to examine whether there was a failure on the part of the Punjab Service Tribunal to enforce the law laid down by this Court in Ahmad Ali Memon v. The Government of Sind and others 1980 S C M R 260; whether the Tribunal justifiably allowed the respondent to resile from a written undertaking submitted by him which he never earlier challenged though the undertaking was acted upon to his knowledge; and whether the Tribunal could substitute the order of the Governor by altering the nature of his appointment from officiating to regular Executive Engineer.

The respondent No.3 remained employed with the Thal Development Authority in various capacities from 1960 to September, 1966, when he was suspended and his services were finally terminated with effect from 5‑11‑1966. He challenged the suspension as well a>. termination of service and succeeded in the High Court (decision in Siddique Ahmad Chaudhry and others v. Chairman West Pakistan Agricultural Development Corporation and others P L D 1968 Lah. 685. While he was out of service, he applied and got appointment as a temporary Assistant Engineer in the Irrigation Department of Government of Punjab. He joined that department on 3‑10‑1967. As a result of the decision of the High Court, he was reinstated in service of the Thal Development Authority on 14‑2‑1970. As the Thal Development Authority had been in the meantime dissolved and a decision taken on 20‑1‑1970 that all the personnel of Agricultural Machinery Organization shall be absorbed in the Agriculture Department the respondent No.3 being an officer of that organization was required to be absorbed in the Agriculture Department. It appears that he did not want to be absorbed in the Agriculture Department nor did he want to be treated as a temporary Engineer in the Irrigation Department and dealt with as such after his reinstatement in service in the Thal Development Authority. On the 4th of July, 1971 he addressed a letter to the Secretary Irrigation Department stating, inter alia, that "I have no intention to be inducted in Class‑1 first and then appointed as Executive Engineer permanent under Irrigation Engineers Service Rules Class‑I 1967 and further that "I may kindly be given a post of equal status held by me under T.D.A. i.e. officiating Executive Engineer and pay and allowances last drawn by me w.e.f. 15‑2‑1970". The case was accordingly put up to the Governor who in consultation with the Public Service Commission appointed /absorbed him as officiating Executive Engineer in the Irrigation Department with immediate effect on 17‑3‑1972. Seniority list of Executive Engineers in the Irrigation Deptt. was notified on the 14th of October, 1972 wherein the name of the respondent appeared at S.No.162. He claims to have represented against the fixation of his pay at the minimum of the scale and also against his appointment being officiating instead of permanent. It was rejected according to him, on 22‑8‑1979. He, therefore, approached the tribunal claiming that his appointment be declared to be permanent and not as officiating Executive Engineer and he should be reassigned seniority accordingly in the two lists published, the first in 1972 and the second in 1975. As regards his undertaking contained in letter dated 4‑7‑1971, he stated before the Tribunal that it was procured from him by pressure and under undue influence by Mr. Alimuddin, the then Secretary, Irrigation and Power Department.

The Service Tribunal, after hearing the parties, came to the conclusion that the letter dated 4‑7‑1971 was procured as alleged under undue Influence; was against law and did not bind the respondent and he could avoid it. On the assumption that Secretary's Committee had decided to absorb the employees of the defunct‑T.D.A. on equal posts and pay and the Public Service Commission had agreed to his appointment as Executive Engineer, the alteration, in the character of the appointment to make it 'officiating' was against law and the Tribunal substituted it with his regular appointment from the date the recommendation of the Public Service Commission was received. Consequential adjustment, in the seniority list were also ordered. The objection to the appeal being barred by time was rejected by the Tribunal.

It is the private respondents alone who have preferred this appeal. They have taken up the same grounds as were urged before the Tribunal viz. that the appeal was hopelessly barred by time, that he having himself represented and having obtained a favourable order could not avoid portions of that very order which were in terms sought for by him but no longer suited him. According to the appellants the respondent No.3 had no legal claim to be absorbed in Class‑I Irrigation Service; that his induction in the Service was ab initio void as his appointment did not satisfy the requirements of Irrigation Engineers' Service (Class‑I) Rules, 1967 particularly its rule 18.

The order impugned before the Tribunal was dated 17‑3‑1972 and was as follows:‑

"NO.PF‑2/1‑S.C.11(E)/67. The Governor of the Punjab, in consultation with the Public Service Commission, Lahore is pleased to appoint/absorb Mr. Siddique Ahmad Chaudhary, Ex‑Officiating Divisional Engineer of the defunct‑Thal Development Authority, Punjab as Officiating Executive Engineer in the Irrigation Department with immediate effect. He will draw Rs.750 p.m. as his basic pay salary in the time‑scale of Rs.750‑75‑1,500 plus Rs.100 p.m. as Technical Pay, admissible under the Rules."

The first representation that he filed was dated 21‑5‑1972 and the second was submitted in 1977 and both were addressed to the Secretary Irrigation Government of Punjab. What was demanded in these representations was regularization of period from 15‑2‑1970 to 17‑3‑1972 in grade 18 and benefit of past service rendered in Thal Development Authority towards promotion. Nothing was said in these representations about the seniority lists that had issued in 1972 and 1975 or about the undertaking dated 4‑7‑1971 having been obtained under undue influence or pressure. What was rejected by the Under‑Secretary Establishment I for Secretary Irrigation and Power by his letter dated 22‑8‑1979 was a representation received from the Chief Engineer by his letter dated 6‑6‑1979 which the Chief Engineer had received from the respondent No.3 vide his letter dated 30‑5‑1979. It is this letter dated 22‑8‑1979 which the respondent No.3 claimed afforded him a fresh period of limitation because it was the final order on his representation.

There could be three objections to the competency of the appeal including the ground of limitation. The first was that against the order of the Governor no representation at all lay. Therefore, all the time taken in filing representation in awaiting its disposal was a time wasted and not condonable. Secondly even where a right of appeal or representation exists it implies one such right and not its repeated exercises. As the order relied upon for extension of limitation is not referable to the first representation but to subsequent one the right of appeal under section 4 of the Tribunal Act came to an end with the filing of first representation and expiry of the period prescribed under section 4 of the Tribunal Act. The third ground is that undue influence and pressure was alleged against Mr. Alimuddin, Secretary Irrigation for avoiding the undertaking. Not only that no such grievance was ever expressed against the officer in any of the representations he was not personally impleaded in the appeal to answer the allegation.

Section 21 of the Punjab Civil Servants Act prescribes a right of appeal or representation "except where such order is made by Governor". In this case the respondent felt aggrieved against the order of the Governor. There was no right of appeal or representation available against it. He could not have waited for any final order. The order of the Under Secretary does not qualify as a final order. The decision of this Court in Ahmad Ali Memon assumed that the remedy of review was available and its disposal was awaited too long. In the case before us the period spent in pursuing a misconceived representation could be of no avail to the respondent for explaining the delay. Besides, the representations were addressed to the Secretary of the Department. How could a subordinate functionary deal with the representation directed against an order of his own superior.

If the respondent was at any stage aggrieved by the high handedness of the Secretary in so far as he exerted pressure of undue influence to extract from him an undertaking not to his liking then he should have promptly expressed himself against it, represented against it under section 21 of the Punjab Civil Servants Act to the authority next above him that is the Governor. Not having done se he could not have sought and obtained an adjudication on this point. His earlier silence on the subject could not, as in the case of Fauji Foundation v. Shamimur Rahman P L D 1983 S C 457 at page 566 be accounted for on the plea that he was "in terrorem" all the while.

The allegation of undue influence finds mention in para. 10 of his grounds of appeal before the Service Tribunal in the following words:‑

" .----------he was dramatically summoned by Mr. Alimuddin, the then Secretary, Irrigation and Power Department. He appeared before Mr. Alimuddin on 4‑7‑1971. A letter was got typed in the Office of the Deputy Secretary (Operation) and the appellant was made to sign the same under pressure and undue influence of Mr. Alimuddin, the then Secretary Irrigation and Power Department."

Adjudication on such an allegation should not have taken place in the absence of Mr. Alimuddin from the proceeding, or without notice to him. The Service Tribunal was clearly in error in recording an adverse factual finding without any material or there being proper parties before it.

The respondent was an Officer of the Thal Development Authority rendered surplus on account of the dissolution of that Authority. The general instructions of the Government on the subject are contained in O & M Establishment Manual Volume‑II (Revised) page 614 in the following words:‑

"I am directed to say that the question how the seniority of the staff rendered surplus from various Departments of the Provincial Government on the eve of Re‑organization of 1962 and absorbed in different departments should be determined has been engaging the attention of Government for some time. It has now been decided that the permanent/ temporary officials who were rendered surplus should be treated as direct recruits in the Departments in which they are absorbed and their seniority should be determined in accordance with the order of merit assigned by the Public Service Commission, Selection Board or the Appointing Auhority, as the case may be. The previous service rendered by them in the abolished Department 'will count only towards leave and pension. Government realise that it will cause some hardship if a senior official is assigned a lower order of merit than a person who was junior to him in the original department. In such a case the Commission /Selection Board /Appointing Authority may ordinarily assign such a position to the senior official in the order of merit as would be in consonance with his seniority in the original department."

Even the Secretaries meeting of which the Tribunal has taken full notice decided that "It was agreed that the staff thus absorbed in other Departments will be appointed on equivalent posts and allowed the pay last drawn by them. But otherwise they would be treated as new entrants".

(Underlining is ours).

The respondent filed copy of the order promoting him as officiating Divisional Engineer and interpreted it to imply automatic confirmation on that post after the expiry of the probationary period. No order of confirmation was placed on record. Even the Service Tribunal did not record a finding of fact that he was confirmed in his post in Thal Development Authority. His was not a case of direct recruitment Stricto Senso under the Punjab Service of Irrigation Engineer's, Class 1, Rules 1967. His case was of absorption of an officer rendered surplus on dissolution of Thal Development Authority. In the circumstances he had no case on merits either. Consequently we accept this appeal set aside the impugned order of the Service Tribunal and dismiss the service appeal of the respondent as incompetent, time‑barred and without merit. No order as to costs.

M . B . A . Appeal accepted.

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