Find a Lawyer

Appeal No.175, decided on 12th February, 1986.

‑‑‑S.4‑‑Appeal‑‑Limitation, for filing of‑‑Period prescribed for filing appeal before Tribunal would be thirty days from date of order, sought to be appealed against‑‑Where, however, other remedy in form of appeal, review petition or representation was available, aggrieved civil servant, held, could prefer appeal, after waiting for ninety days from date appeal, on such review petition or representation could have preferred by such civil servant.

‑‑‑S.4‑‑Limitation period‑‑Computing of‑‑Representation to Government, held, could only be made in matters, where no right of appeal or review existed‑‑In presence of right of appeal, right of representation would not be available to civil servant‑‑Time taken in proceedings with remedy allowed by law, could only be deducted, while time taken in seeking relief through remedy not allowed by law could not be excluded in determining point of limitation.

1983 P L C 256 ref.

‑‑‑S. 12(ii)‑‑Seniority‑‑Consideration of‑‑Concept of seniority, held, would be co‑related with right of being considered for promotion‑tTiua justifying competency of appeal where such right was not adhered to, by Department at time of promotion.

‑‑‑S. 12(ii)‑‑Kashmir Service Regulations, Art. 24‑A‑ Seniority‑ Determination of‑‑Seniority between civil servants relating to period prior to enactment of Civil Servants Act, 1976, held, would be determined in accordance with Art. 24‑A of Kashmir Service Regulations‑‑Seniority would have reference to number of sanctioned strength of posts in any particular department or functional unit of Department‑‑Equal grade in same Department or similar post outside cadre, in another Department, would not unite all persons for purpose of seniority and for being treated as belonging to same class or cadre‑‑Officials outside Department could not be promoted to post in Department, which were reserved for promotion, except those meant for transfers from other Departments‑‑ Cadre posts, could not be mixed up with ex‑cadre posts for purpose of seniority.

‑‑‑S. 4‑‑Appeal‑ Determination of‑‑Service Tribunal, while dismissing appeal on ground of limitation, advised Government and Department that question of seniority being a valuable right, wrong determination of same would cause frustration among subordinates‑‑Government and Department, held, would be at liberty to make corrections in seniority lists, keeping view, the direction that cadre posts could not be mixed up with ex‑cadre posts for purpose of seniority.

Manzoor‑ul‑Husson Gillani for Appellant.

Advocate‑General for Respondents Nos. 1 and 2.

Khawaja Muhammad Saeed for Respondent No.3.

.‑‑Arguments in this case were heard on 13‑1‑1986. Mr. Abdul Rashid Abbasi, counsel for the appellant appeared on 14‑1‑1986 and stated that he wanted to cite some case‑law in support of the averments, made in this appeal. He was allowed to do so by 24th January. On 25th, when present in the Tribunal, Mr. Abbasi was reminded and he assured that he will cite the case‑law by 28th ultimo. We waited upto 4^th February 1986 but the learned counsel failed to fulfil his commitment. It is improper for an Advocate to make any commitment or to request for granting time, for doing anything, which he actually does not intend to do. In vain, we waited for the learned counsel otherwise, this case could have been decided last month.

2. This appeal is directed against order of the Commissioner, dated 8‑10‑1.979, whereby respondent No.3 was promoted as Naib‑Tehsildar and order, dated 19‑9=1981, whereby order, dated 8‑10‑1979 was maintained by the Government. The appellant stated that he joined service as Patwari in 1965 having qualified the Patwari Course in 1962 and that he was promoted as Gardawar in 1973 and also contended that he had passed the examination of B.A. as well as L.L. B. He contended that respondent No.3 had passed the Intermediate Examination and was not a civil servant of' the Revenue Department. According to the appellant, the respondent had joined the service in the Organization of Demarcation of Forest, on 10‑10‑1966 and his service in view of Art. 177 K . S. R. Vol. Ist was not a regular service, therefore, promotion of respondent No.3 ordered on 8‑10‑1979 by respondent No.2 was illegal. It was also argued that only such a person could be appointed as Gardawar of Patwari in any District who was domicile of the District and certified as such by Collector of the District concerned. It was averred that Collector Settlement, District Poonch, vide his order, dated 2‑9‑1977 and 21‑7‑1979, declared appellant No.3 and, vide order, dated 21‑9‑1979 of Commissioner, it was declared that respondent No.3 was not a civil servant of the Revenue Department. These orders according to the appellant had never been challenged by the respondent No.2, therefore, appellant was senior to the respondent No.3 and as such, the promotion of respondent No. 3 without considering the appellant for the purpose was illegal.

3. The respondents contended that appeal being time‑barred should be dismissed on prelimiary objection and it was argued that time taken in the service appeal on revision petition could not be deducted for the extension of time, prescribed for filing an appeal before the Tribunal. The Advocate‑General also argued that terms and conditions of the appellant were not violated furthermore, the appeal being against an order of promotion, was not competent.

4. In our opinion, the following points need determination:‑

(a) Whether the appeal is time‑barred

(b) Is the appeal competent

(c) Whether the service of the respondent No.3 rendered in the Demarcation Division could not be taken into consideration for the purpose of seniority in the Revenue Department

(d) Whether the order under appeal is bad in law and liable to be vacated

For the purpose of limitation under section 4 of Service Tribunals Act 1975, the period prescribed for filing an appeal before this Tribunal is 30 days, from the date of order, sought to be appealed against. In case, where other remedy in the form of appeal, review petition or A representation is available to an aggrieved civil servant, he may prefer an appeal, after waiting for 90 days from the date, he could have preferred such an appeal, review petition or representation. In the instant case, the cause for an appeal accrued to the appellant on 8‑10‑1979 when the respondent No.3 was promoted as. Naib‑Tehsildar. No appeal was preferred by the appellant before this Tribunal against the original order within the time prescribed. Under the rules, he could file an appeal before the Secretary, Revenue against the order of Commissioner, which was in fact filed by him and dismissed by the Revenue Secretary on 26‑5‑1981. This was the Second order which could give cause of appeal to the appellant, subject to the limitations, hereinbefore stated. The appellant did not prefer any appeal before this Tribunal against order, dated 26‑5‑1981 for the reason best known to him. He preferred to approach to the executive authority viz. the Government through a second appeal, which not being maintainable was dismissed on 11‑7‑1981. He moved another application, dated 22‑8‑1981 for consideration of his appeal, dated 10‑6‑1981 as a revision petition. Now the appellant wants that time taken in the disposal of his second appeal as well as the application, dated 22‑8‑1981 be excluded and this appeal may be treated in time. Under the service rules, then prevailing, the right of only one appeal was available to the appellant. At the most he could prefer a review petition before the same authority. The second appeal, thus preferred against the order, dated 8‑10‑1979 was B not competent. So for as the revision petition is concerned, no provision for making a revision in such cases existed. The power of revision could be exercised by the Government, under rule 34, K . S. R . Vol. II Appendix II, only in the cases of penalties prescribed under clauses (vi), (vii) and (viii) of rule 30, which pertain to the removal or dismissal from service or compulsory retirement, before attaining the age of superannuation. This remedy was also not availabe to the appellant. His application for considering the appeal as revision petition was also not maintainable an the ground that the appeal was dismissed on 11‑7‑1981 and he made the application for the consideration of the same as revision petition on 2 ‑8‑1981. A cause, which had been already decided before 22‑8‑1981 could not be reopined and treated as revision) petition, even if, a revision petition would have been competent. Sol for as powers of Government regarding representation are concerned,' section 21 of the Civil Servants Act, 1975‑is reproduced hereunder:‑

"21. Right of Appeal or Representation.‑(1) Where a right to prefer an appeal or apply for review in respect of any order relating to the terms and conditions of his service is allowed to a civil servant by any rules applicable to him, such appeal or

application shall, except as may otherwise be prescribed, be made within sixty days of. the communication to him of such order.

(2) Where no provision for appeal of review exists in the rules in respect of any order, a civil servant aggrieved by any such order may, except such order is made by the Government, within sixty days of the communication to him of such order, make a representation against it to the authority next above the authority which made the order:

Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade."

The provisions reproduced above indicate that representation to the Government can only be made in the matters, where no right of appeal. or application of review exists, under the rules in respect of any order. In the instant case, the right of appeal existed and duly exercised by the appellant. Therefore, the right of the representation before the Government was no longer available to the appellant. Under the law, the time taken in proceeding with a remedy allowed by law, can only be deducted, but the time taken in seeking a relief through the remedy not allowed by law cannot be excluded, when determining the point of limitation, as already decided in the cases of Fida Muhammad Rathore v. Azad Jammu and Kashmir Government 1983 P L C 256. Sh. Mahmood Ahmad v. Azad Jammu and Kashmir Government, 1984 P L C 1629 and in a number of other cases of this Tribunal, as well as the cases decided by the superior Courts of Pakistan. In view of the aforesaid reasons, it is held that the appeal is hopelessly, time‑barred.

(b) The second point relates to the competence of appeal before this Tribunal against an order of promotion. The Advocate‑General objected that impugned order related to the promotion, therefore, appeal was not competent before this Tribunal. He also contended that terms and conditions of the appellant were nowhere violated, therefore, even, on this score, this appeal was not maintainable. The appellant claims that he is senior to respondent No.3. The concept of seniority is co‑related with the right of being considered for promotion. Otherwise, this concept looses all its value because it has no bearing with the pension, pay other privileges. Therefore, we are unable to subscribe to the view that the appeal is not competent in the circumstances, when the appellant is not shown to have been superseded by competent authority. We repel the arguments of the learned Advocate‑General and hold that this appeal is competent.

5. The next point relates to the temporary nature of the appointment of respondet No.3, who admittedly joined the service in the Demarcation Organization on 10‑10‑1966. It is not denied by the respondent No.3, that his appointment was made in the Demarcation Organization. It is also not denied that Demarcation Organization was not a part of the regular service of the Revenue Department. The respondent, did not rebut the assertion of the appellant. He has, however, made reference to a decision of this Tribunal, delivered in the case of Aftab Hussain Shah, whereby he was declared senior to some other Gardawar Qanoongo on the basis of his date of appointment, which was in fact his date of appointment in the Demarcation Organization. We have examined that file and find ourselves unable to follow that decision in this case for the reason being enumerated hereinafter:‑

(a) The case of Syed Aftab Hussain Shah was not properly contested by the Government. The counsel of the Government was negligent, who even did not file the written statement and the decision is also ex parte, against respondent No.2.

(b) The summonses in the aforesaid case do not appear to have been served properly on the respondent No.2. There is no proof of service of summonses issued on 9‑12‑1979 for 2‑1‑1980 on the file of the Tribunal, nevertheless, he was proceeded against ex parte.

(c) The question that Aftab Hussain Shah was appointed to an Organization, which was not a part of the Revenue Department and service of such departments could not be computed towards the seniority to be maintained in the Revenue Department was not taken in the defence and is not at all determined in that judgment. Thus point involved in this case, has not been decided in the case cited by the appellant.

(d) The decision is based on the misrepresentation of facts before the Tribunal for the reason that date of appointment of Aftab Hussain Shah as Gardawar Qanoongo in the department has been shown as 16‑9‑1986 in the seniority list, as quoted in the said judgment, which was factually incorrect. He had in fact joined the service in the Demarcation Division and not the Revenue Department on 16‑9‑1966. It was for the first time on 16‑11‑1971 that his lien was kept in the Revenue Department, and the date of his appointment should have been shown 16‑11‑1971 in the list and not 16‑9‑1966. The incorrect entry misl 3d the Tribunal.

(a) The seniority list Annexures 'G' and 'F' relied upon by the Tribunal were not authentic. Annexure 'G' is just a typed paper, not signed by any officer of the Revenue Department. It bears the signatures of the Advocate of the appellant, which is not at all piece of evidence, under any law of the land. Annexure 'F' is a list, not issued under law, although it bears some attesting signatures of some official, whose name or designation nowhere appears and on the top of it, the words appear but it is neither original nor a certified copy. Therefore, we have to determine the present case independently of the earlier ex parte decision quoted by the respondent No.3.

6. The question of seniority between the appellant and respondent No.3, relates to the period prior to the enactment of Civil Servants Act, 1976, therefore, it has to be determined in the light of K.S.R. then governing such matters. For this purpose, the relevant provision embodied in Art. 24(a) is reproduced below:‑

"24(A) The seniority of person who is subject to these rules has reference to the service, class, category or grade with reference to which the question has arisen. Such seniority shall be determined by the date of his first appointment to such service, class, category or grade, as the case may be."

The words 'service, class, category or grade used in the aforesaid provision of law are significant and out of these words 'class' has defined in Rule 1, sub‑Rule (iv), which is as under:‑

"(iv) "Class" means the posts borne on the cadre of a service between which .and the other posts borne on the cadre of the same service, promotions and transfers are not ordinarily admissible."

In the definition of the word 'class' the word 'cadre' has also been used. The word 'cadre' has been also defined in Rule 1, sub‑Rule (i) ibid as under:‑

"(1) ................................ .

(i) "Cadre' means the sanctioned strength of service, class, category or grade (permanent or temporary)."

The combined reading of sub‑Rules (i) and (iv) of Rule 1, and Rule) 24 (a) will make it clear that seniority has a reference to the number of sanctioned strength of posts in any particular department or a functional unit of the Department. Thus, an equal grade in the same department or a similar post outside the cadre, in another department F or organization will not unite all the persons for the purpose of seniority and for being treated as belonging to the same class and the cadre. Precisely speaking the number of posts of Gardawar Qanoongo on the strength of Revenue Department cannot have a common seniority with any other official having the same designation in any other Department. If that is taken so, then clerks, typists and many other officials, serving in different departments, will claim common seniority with all the departments, and there will be no common yardstick. An official serving in other department can claim the seniority with the officials of his own class in the department where he holds a lien on a similar substantive post, although deputed for duty to some other department. The Demarcation Organization from its very concept not in fact a department. It is a temporary organization, whose expenditure are met by Forest Department and some of the Revenue Officers or officials are deputed to that department, by Revenue Department, while others are directly recruited for that organization without right of reversion to the Revenue Department. It is neither shown nor pleaded that respondent No.3, was ever appointed on the post of Gardawar Qanoongo prior to or subsequent to 10‑10‑1966 in the Revenue Department but before the appointment of appellant, as such. It is also not shown nor pleaded that his lien was ever kept in the Revenue Department on a post bearing this designation, so that period from that date onwards could be counted for the purpose of determination of his seniority. The seniority of the civil servant is a valuable right and one of the incentives for the serving officials of a department that they should perform their duty honestly and earnestly, so that at the time of a promotion, they should be considered for it. The officials outside the department cannot be promoted to a post in the Department, which are reserved for promotion except those meant for the transfers from other departments. When an official of one department is transferred to a post, in another department, unless they belong to a common cadre, the person entering a department will be placed at the bottom of the persons, holding such post in the department, prior to the entry of that person in the department.

7. The Demarcation is in fact a programme which has been undertaken by the Forest Department of the Government, and it is periodically renewed by the Government from time to time, therefore, it is a temporary phase, even though it has to be continued for a long time and service in this Organization except those of deputationists cannot be equated with the service of permanent employees of the Revenue Department. In view of a aforesaid observations, it is held that the respondent No.3, who was appointed as Gardawar Qanoongo in the Demarcation Organization had no right to be considered for promotion to the posts of Naib‑Tehsildars, reserved for the promotion of Qanoongos of the Revenue Department, on the basis of the service rendered by him, outside the Revenue Department. We are, therefore, unable to agree with the view, otherwise expressed in any earlier case and direct that such earlier decision if delivered in similar circumstances of misrepresentation will not be followed by the Government or any other subordinate authority in the matter of determination of seniority of other officials. The cadre posts shall in no case be mixed up with the ex‑cadre posts for the purpose of seniority.

8. The last point relates to the legality or otherwise of the order of respondent No.2. The post of Naib‑Tehsildar can be filled in from amongst the Qanoongoa and even by initial recruitment. Although the case of initial recruitment has not been pleaded; yet we are unable to express our opinion about the legal aspect of this order because we are not assuming jurisdiction for setting aside the order in view of the bar of limitation. It is, however, emphasized on the Government as well as the Commissioner that the question of seniority is very valuable', and its wrong determination in a number of cases has caused frustration's amongst the subordinate officials and the officers, therefore, every care should be taken to apply the relevant rules, while making promotions or preparing seniority lists. The corrective measures can also be taken while preparing seniority lists of the officials of the Revenue Department because there are a number of cases of this Department in the Tribunal, which are causing undue expense to the Government as well as confusion in the minds of the affected officials and officers.

The appeal is dismissed on the ground of limitation but the Government and the Revenue Department are al liberty to make corrections in the seniority lists in light of the observations of this Tribunal. In circumstances of this case, we make no order as to the Costs.

A. A. Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.