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Case No. 580/903 of 1984, decided on 30^th July, 1985.

---S. 4--Limitation Act (IX of 1908)--S.5--Appeal before Tribunal- Limitation--Provincial Selection Board having reconsidered case of civil servant on merit had in fact condoned limitation--Delay in filing appeal, if any, held, stands condoned by Provincial Selection Board to which Service Tribunal did not take any exception.

1981 P L C (C.S.) 109 ref.

---R. 4--Appeal before Tribunal--Financial benefits--Surrendering of by civil servant--No evidence produced by Authority in support of such surrender in spite of repeated demands by Tribunal--Civil servant, held, was entitled to financial benefits from the date of pro forma promotion.

Syed Jamshed Ali for Appellant.

A.G. Humayun, District Attorney for Respondent.

.--M. R. Khalid has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974, in which he has impleaded the Government of the Punjab through the Chief Secretary; Punjab Secretariat, Lahore, as respondent.

2. By virtue of this appeal he has prayed that the order dated 11-6-1980, in so far it deprives the appellant of financial benefits and the final order, dated 24-6-1984, be set aside with financial benefits be extended to the appellant.

3. Brief facts of the case are that the appellant joined the former P.C. S. (E. B.) cadre in 1955 through a Competitive Examination. He was granted selection grade w.e.f. I-1-1970, vide notification, dated 20-2-1974. On 26-1-1977, the appellant was promoted in Grade-18 as AC/ADC w.e.f. 1-3-1972. The appellant was due for promotion in Grade 18 as D.C./D.S. w.e.f. 26-6-1972, the grade to which Mr. Shaukat Ali Chaudhry, an officer next junior to the appellant was promoted. However, his promotion was deferred on the complaint of Mr. Riaz Hussain Shah. A full enquiry was made into the complaint and ultimately it was filed. Meanwhile the appellant was promoted in Grade-18 as D.C./D.S. by notification, dated 25-5-1974. Aggrieved against the said notification he made representation to the Chief Secretary, Government of the Punjab, as according to him this notification was not passed by the Governor but was issued on his behalf. This representation was rejected on 24-6-1984. Hence this appeal.

4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance.

5. Learned counsel for the appellant has submitted that the representation so filed by the appellant before the Chief Secretary, Government of the Punjab, was a bona fide mistake on his part, as the order, according to his information was not passed by the Governor but only on his behalf by the learned Chief Secretary. It has been further submitted that this representation was duly entertained by the Government, therefore, the case of the appellant would, by no means, be hit by law of limit. With regard to the justification of his claim it has been submitted that he nowhere has foregone his financial claim as averred by the respondent in this behalf as there is nothing on the record to show the same. It has been further submitted that once it has been proved that the appellant did not himself agree to forego his financial benefits so accrued to him from his promotion, his claim for the same, would be justified. While concluding his arguments, learned counsel for the appellant has submitted that his case for condonation of delay also rests on the verdict of this Tribunal as given in 1981 PLC (C.S.) 109 in which Ghulam Qadir Dahirs appeal was considered to be in time ignoring the technicalities of law, which according to this Tribunal, would not be strictly applied when the right of a person was so affected.

6. On the other hand learned District Attorney has submitted that in the meeting of the Provincial Selection Board held on 10-5-1980, the appellant was recommended to be given seniority w.e.f. 25-5-1972 in Grade-18 without financial benefits meaning thereby that no arrears of pay would be paid to him. It has been further submitted that this matter was put up before the Governor/M.L.A. Punjab, who approved the decision on 16-5-1980, therefore, in consequence of such decision a notification was issued on 11-6-1980, by order of the Governor of the Punjab, in which it was specifically mentioned that the officer will not draw any financial benefits on account of arrears of pay accruing due to the fixation of seniority. In this way learned District Attorney has argued that the period of limitation for filing appeal before this Tribunal would start from 11-6-1980, the day notification was published and was conveyed to the appellant. It has been further argued that in view of the settled law that no representation would be against the order of the Governor, the appellant was under legal obligation to come forward with his claim immediately, when the said notification was passed and there was no justification to condone the delay in his case. With regard to the case of Ghulam Qadir Dahir, it has been submitted that the facts of the said case are absolutely different with the case of the appellant as in the said case the legal position was still confused and only when Supreme Court of Pakistan came out with a decision in favour of the appellant (Ghulam Qadir Dahir) he came before this Tribunal.

7. Learned counsel for the appellant has strongly controverted the stand of the learned District Attorney that the case of the appellant was hit by law of limitation, on the ground that in fact, his second representation was duly considered by the Provincial Selection Board and the only reason by which the appellant case was ignored, was that he himself had voluntarily foregone the financial benefits, which had so accrued to him. In this manner it has been pleaded that in fact the case of the appellant would be considered from the date of second rejection by the Provincial Selection Board and the plea so advanced by it.

8. We have given our anxious thought to the arguments advanced by the parties and first of all would deal with the point of limitation so vehemently raised by the learned District Attorney in this case The fact of the matter is that the second representation so filed by the appellant was duly considered by the Provincial Selection Board and the only reason for which the case of the appellant was declined was that he himself had voluntarily foregone the financial benefits which so accrued to him. In this situation the law of limitation would not come in his way as the Provincial Selection Board, in a way, condoned the same by considering his case once again on merits and declined his request on the ground that he himself had voluntarily given up the financial benefits to which he was so entitled. In this manner we are fully satisfied that if there is any delay on his part, it stands condoned by the Provincial Selection Board to which we do not take any exception.

9. With regard to the merits of the case, the only reason advanced by the Provincial Selection Board in its meeting held for this purpose was that the appellant would not be entitled to the financial benefits because he himself has surrendered the same in favour of the Government. To satisfy ourselves on this point we called for the proceedings of the Provincial Selection Board as well as gave ample chance to the learned District Attorney to show us any undertaking given by the appellant in this behalf, which stood as impediment in his way being treated as waiver in favour of the Government. Despite a number of chances allowed to the learned District Attorney he was not in a position to produce anything on record to show that this observation of the Provincial Selection Board was supported by any documentary evidence or otherwise justified by it in any manner whatsoever. This being the correct position on record we have no alternative but to accept the appeal of the appellant by holding that he would be entitled to the financial benefits, to which he stands entitled by promotion to Grade-18. We are further strengthened in our finding on the strength B of seniority list which has been produced on record, which itself concedes that the appellant was given pro forma promotion w.e.f. 26-6-1972. The seniority list has been placed on record as Annexure 'H' and this fact is fully mentioned at serial No. 114 of the said list, wherein it has been recorded that the appellant was promoted from 3-6-1974 whereas the pro forma promotion was awarded from 26-6-1972. This would be an un-controverted documentary evidence in his favour on which the Tribunal places full reliance.

10. Resultantly the appeal is accepted with the direction that the appellant be given the financial benefits from the date he has been awarded pro forma promotion. There will be no order as to costs.

A.A. Appeal accepted.

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