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Appeal No. 339(Q) of 1985, decided on 14th September, 1986.

‑‑‑S. 4‑‑Civil services‑‑Promotion‑‑Plea of ante‑dated promotion‑ Appeal‑‑Period of limitation‑‑Cause of action, accrual of‑‑Appeal filed by civil servant within time from publication of seniority list, wherein he was placed junior to persons over whom he claimed seniority, held, would be deemed to be within limitation.

‑‑‑Promotion‑‑Delay in approval‑‑Effect‑‑Delay in approval of promotion by Appellate Authority for reasons it considered proper, held, would not amount to supersession of civil servant.

‑‑‑Seniority, accrual of‑‑Where batch mates of civil servant were recommended for promotion and appointed with immediate effect and not retrospectively civil servant /appellant, held, could not be given seniority over such promotees.

‑‑‑S. 4‑‑Civil service‑‑Seniority‑‑Determination of‑‑Seniority of civil servant, held, could not be ante‑dated to date when such civil servant completed five years service because he would become senior to persons who were originally senior to him but were not given promotion or seniority retrospectively on completing five years' service‑‑While partly accepting appeal of civil servant, Service Tribunal directed that the order passed would not prevent Government to consider case of civil servant and his batch mates from giving seniority to them from dates on which they completed five years' service in B. 17 on analogy of preceding and subsequent batches.

G.S. Khan for Appellant.

Niaz Ahmad Khan for the State.

Date of hearing: 10th September, 1986.

‑‑The appellant herein, Capt. (Retd.) Muhammad Yunus Jafar, was commissioned in the Army in 1968. In 1974, he, for the first time, on 4‑10‑1974, joined civil post when he was inducted in the Tribal Areas Group (TAG) in B‑17.

2. When the question of promotion of the appellant to B‑18 arose, a Departmental Promotion Committee (D.P. C.) was convened which held its meeting, on 10‑8‑1980. There were adverse reports on the performance of the appellant for the following periods:‑‑

(i) 1‑6‑1978 to 31‑12‑1978;

(ii) 1‑1‑1979 to 24‑5‑1979; and

(iii) 26‑5‑1979 to 24‑8‑1979.

In its meeting of 10‑8‑1980, the D.P. C. did not clear the appellant on account of the adverse reports and deferred his case, as the adverse remarks in the A.C.R. were under consideration of the departmental appellate authority. Another meeting of the D.P.C. was convened, on 8‑1‑1981 and still another, on 13‑5‑1981. In these two meetings also, the appellant's case was deferred, presumably because by that time the D.P. C. had not received information about the expunction of the adverse remarks appearing in the A.C.Rs . of the appellant and for the further reason that the report of one year was not available.

3. The fourth meeting of the D.P.C. was held on 6‑10‑1981 which recommended the appellant's name for promotion. However, when the matter came up before the appointing authority, it did not pass any order on the said report, observing that the record for another year should be awaited. On receipt of the report and without re‑referring the matter to the D.P.C., the competent authority approved the promotion of the appellant with effect from 19‑4‑1982.

4. Though lengthy statement has been made in the grounds of appeal, nevertheless, the appellant's claim is that the date of his promotion to B‑18 should be ante‑dated to 4‑10‑1979, the date on which he completed five years service in B‑17.

5. The learned counsel for State has argued that the order of the promotion of the appellant having been passed on 19‑4‑1982 to take effect immediately, the appellant got a cause of action at that time. He, however, made a representation on 11‑12‑1984, which was rejected on 13‑5‑1985, and the appellant received the rejection order on 13‑6‑1985. The learned counsel for State argued that the appeal at the latest should have been filed before the Tribunal by 12‑7‑1985, and that the present appeal having been filed, on 26‑10‑1985 is barred by time.

6. The appellant's case, on the other hand, is that he made a representation to the Prime Minister on 7‑10‑1985 and it was withheld on 7‑11‑1985 after the appeal before the Tribunal had been filed. He contends that the time started running against the appellant from 7‑11‑1985 and thus the present appeal which had been filed earlier became mature on that date and, as such, cannot be rejected on ground of limitation. In this argument, there is little force, inasmuch as, only one representation having once been rejected, second appeal was not competent. However, we find that immediately thereafter when the appellant came to know about the publication of the seniority list in which he was placed junior to the persons over whom he claims seniority, he again represented and then came to the Tribunal within time. The appeal cannot, therefore, be rejected on ground of limitation.

7. On merits, reliance has been placed by the learned counsel for the appellant on the General Principles of Seniority reproduced at page 153 of the ESTACODE‑‑1983 edition. Paragraph 'B' in clause (b) provides that when in a single reference, a case before the D.P.C. is held up in respect of a person for reasons beyond the control of such person, the recommendation of the D.P.C. when made subsequently, shall be deemed to have been made on the date when the recommendation in respect of the original batch was made. On this principle, therefore, the recommendation of the D.P.C. made in its meeting of 6‑10‑1981 shall be deemed to have been made on 10‑8‑1980 when for the first time the batch of the appellant was considered and his name was deferred. The learned counsel for State does not refute this position but argues that recommendation of the D.P.C. itself has no value, unless the appointing authority agrees with the recommendations. In the present case, it was argued, the competent authority did not accept the report of the D.P.C. on 6‑10‑1981 on the ground that the record of the appellant was indifferent and it ordered that one more report of the appellant should be seen. In other words, according to the learned counsel, promotion of the appellant was refused and he was superseded. In this contention, we do not find any substance. If the appointing authority had the intention of rejecting the promotion outright, then it could have said so, and the matter should have again gone to the D.P.C., for fresh consideration. This was a case of delay in approval by the appellate authority for the reasons it considered proper and in. our opinion, this does not amount to supersession of the appellant. Consequently, when the order of promotion was passed by the appointing authority on 19‑4‑1982, it had to take effect from the date the batch‑mates of the appellant were promoted, as a result of the first D. P. C . held on 10‑8‑1980, in which the appellant's name was deferred. Needless to say, that the last D.P.C. approved the name of the appellant as the representation of the appellant against adverse remarks had been accepted and the reports which were awaited, had also been received. In our opinion, therefore, the appellant is entitled to promotion and consequential fixation of his seniority from the date on which his immediate junior was promoted on the basis of D.P. C. held on 10‑8‑1980' and we order accordingly.

8. The appellant had also taken the stand that promotion should be ante‑dated to 4‑10‑1979 when he completed five years service in B‑17. This stand was taken because according to him the batches which were approved prior to 10‑8‑1980 and also subsequent to 10‑8‑1980 had been given seniority from the date they completed five years service in B‑17. According to him, this was done in the case of persons belonging to the officers of the Tribal Areas Group as also the officers of the District Management Group; the two groups having merged in the meantime with effect from 3‑12‑1981. We do not find any force in this argument. Since all the batch‑mates of the appellant who were recommended in the meeting of the D.P.C. on 10‑8‑1980, were appointed with immediate effect and not retrospectively, the appellant cannot be given seniority over them even if they are otherwise senior to him. If we ante‑date the seniority of the appellant to date when he completed five years service, then he would become senior to persons who were originally senior to him, but were not given promotion or seniority retrospectively on completing 5 years service. Therefore, this claim of the appellant is rejected.

9. For the reasons stated, the appeal is partly accepted as indicated above, and the parties be informed accordingly.

10. Nothing in order shall prevent the Government to consider the case of the appellant and his batch‑mates for giving seniority from the dates on which they completed five years service in B‑17 on the analogy of preceding and subsequent batches.

A. A.

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