HAFEEZ-UR-REHMAN NAJMI Versus SECRETARY, ESTABLISHMENT DIVISION, GOVERNMENT OF PAKISTAN, ISLAMABAD
CH. HASAN NAWAZ (MEMBER): ‑‑This order purports to deal with six appeals at the pre‑admission stage and with identical questions of law and facts under section 4 of the Service Tribunals Act, 1973.
2. With the exception of Sabir Hussain Sabir of Appeal No.93(L) of 1993, whose date of induction in the group is 18‑11‑1984, the other appellants were inducted into the Accounts Group on 26‑11‑1987. It appears that they held current charge appointments in B‑18 for a short-while and then appointed on acting charge basis in the same grade by the following Notification, dated 14‑12‑1988:
"DEPARTMENT OF THE AUDITOR‑GENERAL OF PAKISTAN,
GULBERG‑III, LAHORE
Dated the 14th December, 1988
NOTIFICATION
No. 196‑ARC/5‑1/84. Having been approved by the competent authority for appointment on acting charge basis against the post of Deputy Accountant‑General/equivalent (BPS‑18), Mr. Hafeez‑ur- Rehman Najmi, a BPS‑17 Officer of Accounts Group, presently posted as Deputy Director in the office of the Director‑General Audit, Income Tax, Lahore, on current charge basis is appointed on acting charge basis to hold the same post, with immediate effect and until further orders.
(Sd.)
Suhail Safdar,
Director (Adorn.)
Phone: 875046"
3. The appointment of Sabir Hussain Sabir to B‑18 was made by Notification dated 21‑12‑1988 which was to the following effect:
"DEPARTMENT OF THE AUDITOR‑GENERAL OF PAKISTAN,
GULBERG‑III, LAHORE
Dated the December 21,1988
No. 212‑ARC/5‑1/84. Having been approved by the competent authority for appointment on acting charge basis against the post of Deputy Accountant‑General/equivalent (BPS‑18), Mr. Sabir Hussain Sabir, a BPS‑17 Officer of the Accounts Group presently posted as Deputy Director (BPS‑18) in the office of the Director‑General, WAPDA Audit, Lahore on current charge basis is appointed to hold the same post in the same office on acting charge basis with immediate effect and until further orders.
(Sd.)
Suhail Safdar,
Director (Adorn.)"
4.Thereafter, by Notification dated 13‑2‑1990, they were all promoted to BPS‑18 in the Accounts Group on regular basis with effect from 15‑1‑1990, after having been approved by the competent Authority. The notification said that they were officers of BPS‑17 holding acting charge/current charge of the post of Deputy Accountant‑General in BPS‑18.
5. They addressed separate representations to the Secretary, Establishment Division on 24‑4‑1990 praying that notification dated 13‑2‑1990 be revised and their promotion to BPS‑18 may be regularised from 29‑11‑1989 "as recommended by the DPC". They were informed through letter dated 12‑7‑1990 by the Office of Auditor‑General of Pakistan that the Establishment Division had refused to regularise their promotion to BPS‑18 with retrospective effect. Their representations were rejected.
6. Subsequently, on 9‑7‑1990 they addressed representations for grant of move‑over from BPS‑18 td BPS‑19 with effect from 1‑12‑1989. These representations did not find favour with the competent authority and information regarding their rejection was conveyed to them through the following letter of 4‑8‑1990:
"DEPARTMENT OF THE AUDITOR‑GENERAL OF PAKISTAN,
GULBERG‑III, LAHORE‑II
No. 685‑DIR(A)/10‑58/90‑II, Dated 4th August, 1990
To
The Director,
Income Tax Audit, Lahore
Subject:‑ Move‑over from B‑18 to B‑19 with effect from 1‑12‑1989 of M/s Sabir Hussain Sabir and Hafeez‑ur‑Rehman Najmi, Dy. Directors Audit, Income Tax .
Please refer to your Memo. No. 443/DITA/Adorn/5‑89, dated 9‑7‑1990 forwarding the applications of M/s. Sabir and H.R. Najmi on the above subject.
2. According top criteria for move‑over given in the guidelines for considering cases of move‑over circulated with the Finance Division's O.M. No. F.1(82)/R‑3/85, dated 1‑1‑1986, the officer should be a regular member of the service, cadre or post concerned on the date the move‑over may be due to him.
3. In cases of M/s. Sabir Hussain Sabir and Hafeez‑ur‑Rehman Najmi, it is pointed out that both of them were allowed move‑over from BPS‑17 to BPS‑18. According to item XII of para. 1 of the said O.M. dated 1‑1‑1986, the employees shall not be allowed two successive move over. However, if an employee having been moved‑over to a particular scale, is subsequently promoted to a post carrying the same scale, he may again become eligible for further move‑over.
4. In para. 3(a) of their application's, both the officers have stated that they are regular member of the' service. This is not true, because both the officers were promoted in BPS‑18 w.e.f. 15‑1‑1990. Hence they were not regular member in BPS‑18 on 1‑12‑1989, the date from which they have requested to allow move‑over to BPS‑19 (they were not regular members of the service, cadre or post in BPS‑18 on 1‑12‑1989).
5. However, they will become eligible for further move‑over w.e.f. 1‑12‑1990 on their promotion (on regular basis) to BPS‑18 (w.e.f 15‑1‑1990). As such they may apply for move‑over to BPS‑19 w.e.f. 1‑12‑1990 and not from 1‑12‑1989 as applied by them presently. Both the officers may be informed accordingly.
6. It has been noticed that while giving detailed particulars of his service in para. 2 of his application, Mr. Sabir Hussain Sabir has not mentioned about the event of move‑over' from BPS‑17 to BPS‑18 which was allowed to him by the competent authority w.e.f. 1‑12‑1986 vide this Office Memo. No. 1361/ARC/10‑58/88‑I, dated 13‑10‑1988. He may be directed to furnish the reasons as to why it was not mentioned by him, for the information of the Deputy Auditor‑General (Adorn. and Coord.).
(Sd.)
Suhail Safdar,
Director (Adorn.)"
7. Another representation made on 30‑9‑1990 on the same subject was also rejected by the Finance Division in consultation with the Establishment Division and move‑over was ultimately allowed to the appellants from B‑18 to B‑19 with effect from 1‑12‑1990 through Auditor'‑General's O.M dated, 18‑1 1990 which makes the following reading:
"Department of the
AUDITOR‑GENERAL OF PAKISTAN,
Gulberg‑III, Lahore.
No. 31‑DIR(A)/MO‑19/20/91, dated the January 18,1992.
OFFICE MEMORANDUM
Sub: MOVE‑OVER OF OFFICERS FROM BPS‑19 TO BPS‑20 AND BPS‑18 TO BPS‑19 OF THE ACCOUNTS GROUP
In pursuance of the Establishment Division's O.M. No. 7/41/86‑CP.5 of 7th January, 1992 the competent authority has been pleased to allow move‑over from BPS‑19 to BPS‑20 and from BPS‑18 to BPS‑19 to the under‑mentioned officers of the Inter‑departmental Cadre of the Accounts Group with effect from the date noted against each:
S.No.
Name of
Officer
Designation
Date of move‑over
MOVE‑OVER FROM BPS‑19 TO BPS‑20
1. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑
2. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑
MOVE‑OVER FROM BPS‑18 TO BPS‑19
1 to 7 ...
8.
Sabir Hussain Sabir Najmi
Senior Accounts Officer
Pakistan Railways,
Lahore.
1‑12‑1990
9.
Hafiz‑ur‑Rehman
Deputy Director Income
Tax Audit, Lahore
1‑12‑1990
10 . .....
11.
M. Siddique
Akhtar
Deputy Director,
Accounts, Pakistan Post Office Deptt., Lahore
1‑12‑1990
12. ......
1‑12‑1990.
13.
Sh. Abdul Majid
Deputy Accountant‑
General, Punjab,
Lahore.
1‑12‑1990
14.
Abdul Waheed 15 to 30. Chohan
Deputy Accountant General, Punjab, Lahore.
1‑12‑1990.
15 to 30
-----------
--------------
--------
31.
Nazir Ahmad
Deputy Director Audit
WAPDA, Lahore
(since retired)
1-12-1990
3. The officers belong to non‑technical category.
4. Further necessary action may be taken at your end.
(Sd.)
Muzammil Tayed Sultan, Director (Adorn.)"
8. Writ petitions were‑then filed on 26‑9‑1992 in the Lahore High Court with the prayer for move‑over to B‑19 with effect from 29‑11‑1989 instead of 1‑12‑1991. A direction was given in those petitions to the Secretary, Finance Division for disposal of the reference sent by the Establishment Division on merits and in accordance with law. The appellants were informed by the respondents through office Letter No. 595‑IDC‑II/8‑26/92, dated 22‑11‑1992 (Annexure M) that move‑over could not be allowed to them with effect from 1‑12‑1989. It makes the following reading:
"Subject: WRIT PETITION NO. 9211 92 ABDUL WAHEED CHOHAN v AUD ITOR‑GENERAL
Please refer to your W.P. No. 9211/92, dated 26‑9‑1992, on the above subject.
2. The competent authority has decided that you were promoted on regular basis to BPS‑18 w.e.f. 15‑1‑1990. The Establishment Division have not agreed to the grant of promotion with retrospective effect with effect from 29‑11‑1989 as requested by petitioners: Because you were promoted to B‑18 on 15‑1‑1990, you cannot be allowed move over to BPS‑19 w.e.f. 1‑12‑1989 i.e. the date prior to the date of regular promotion. You would become entitle to move‑over to next higher scale w.e.f. 1‑12‑1991.
(Sd.)
Muzammil Tayed Sultan,
Director Administration"
9. On receipt of this information, they have had recourse to the Tribunal with these appeals where it is prayed that (a) order dated 13‑2‑1990 be modified to the extent that the date of promotion is changed from 15‑1‑1990 to 29‑11‑1989 and that (b) order dated 22‑11‑1992 be set aside as being unlawful.
10. It is evident from the facts that two orders have been impugned in these appeals. The first is notification of 13‑2‑1990 about their regular promotion to posts in B‑18 as Accountant‑General. Their representations for modification of this order were rejected and they were informed of this fact through letter dated 12‑7‑1990. The second is with regard to the rejection of their representations for move‑over from B‑18 to B‑19 with effect from 1‑12‑1989. They were first informed of the rejection of their representations through letter dated 4‑8‑1990. Their subsequent representations, with a prayer to the same effect were finally considered and rejected by the Finance Division in consultation with the Establishment Division and they were informed of this fact through letter dated 22‑11‑1992. The appeals are evidently time‑barred with regard to both the prayers.
11. The appeals are accompanied by applications under section 5 of the Limitation Act for condonation of delay. The reason mentioned is that they approached the High Court for the requisite relief with a bona fide belief that the remedy lies with that Court. From the High Court's order dated 9‑2‑1993 they learnt that the jurisdiction of the High Court was barred and that the necessary relief could be sought only from the Service Tribunal. It is contended that the time consumed in the High Court may be taken into account while deciding the question of limitation. Since the delay has come about on account of proceedings in the High Court, it should be condoned.
12. We hold that the applications hardly disclose any justification for condonation. In the first place ignorance of law is no excuse. The appellant's earlier Writ Petition No. 9211 of 1992, dated 26‑9‑1992 was disposed of by order dated 18‑10‑1992 with the observation that the matter of move‑over had been referred to the Finance Division (Regulation Wing) for appropriate orders. The Secretary, Finance Division was accordingly directed to dispose it of on merits and in accordance with law. Their claims were considered by the Finance Division which held that they were not entitled to move‑over with effect from 1=12‑1989. They were accordingly informed through letter, dated 22‑11‑1992 of the rejection of their claim. There was no justification for filing another Constitutional petition on receipt of this information and the appellants should have come to the Tribunal for the necessary relief within 30 days of the communication of letter dated 22‑11‑1992. We see hardly any justification for condonation of delay.
13. Further, there is another point worth consideration. We ‑have noticed that the appellant's representations for retrospective regularisation of their promotion to B‑18 as Deputy Accountant‑General were rejected by the competent authority and they were informed of this fact through letter dated 12‑7‑1990. The order rejecting their appeals is also the subject of challenge of these appeals. No justification for condonation of delay has, however, been given in the application under section 5 of the Limitation Act. What with the absence of explanation, even a request for condonation of delay is not there in so far as the prayer for retrospective regularisation of promotion is concerned.
14. It may be pointed out that grant of move‑over with effect from 1‑12‑1989 depends upon allowance of prayer regarding retrospective regularisation of promotion. If the date of their regular promotion be taken as 15‑1‑1990, as it is, it can be nobody's case that they were entitled to move‑over from B‑18 to B‑19 with effect from 1‑12‑1989. Fact of the matter is that prayer regarding move‑over is contingent upon grant of prayer in respect of modification of Notification dated 13‑2‑1990 for retrospective regularisation of promotion. If this prayer is not granted, it will have to be conceded even by the .appellants that they are not entitled to move‑over to the next higher grade with 'effect from 1‑12‑1989.
15. Therefore, in the context of these considerations, the question of limitation in respect of the first prayer for modification of Notification dated 13‑2‑1990 is more important. It may be said that it is the only material question in this case. The appellants slept over their rights all through this period after having received information through letter dated 12‑7‑1990 regarding rejection of their representations and the appeals filed on 22‑3‑1993, 30‑3‑1993 and 31‑3‑1993 are hopelessly time‑barred. It may be pointed out that they are not accompanied by any request for condonation of delay in so far as they relate to the matter of promotion.
16. Another aspect of the matter is also worth notice. The appeals appear to be suffering from misjoinder of causes of action. It goes without saying that the point regarding regularisation of promotion from a particular date is based on different facts. It is also clear that altogether different considerations apply for determination of the question regarding date of move‑over to a higher grade. We hold the view that facts in the background of both the questions give rise to distinct causes of action, which should have been made the subject of separate appeals.
17. . For the aforementioned reasons, the appeals are dismissed in limine as time‑barred and untenable. No order as to costs.
H:B.T./849/Sr.F Appeals dismissed.