1993 PLC(CS) 217

GUL MAST Versus GENERAL MANAGER, PAKISTAN RAILWAYS

Citation1993 PLC(CS) 217

CourtFederal Service Tribunal

Case No.Appeal No. 272(P) of 1991

Date1992-10-26

Judge(s)Abdur Razzaq A. Thahim, Chairman, S.M. Ishaq and Ch. Hasan Nawaz Member

ResultAppeal dismissed

CH. HASAN NAWAZ (MEMBER) .‑‑‑We are concerned, in this judgment, with the disposal of an appeal under section 4 of the Service Tribunals Act, 1973, filed in the background of following facts:

2. While he was working as SCA (Goods), Peshawar, the appellant was appointed to officiate as Claim Inspector on "ad hoc basis pending selection." The order made it clear that the appointment will not confer any right on him to claim seniority over his seniors.

3. He was reverted to his substantive post of SCA (Goods) and posted at Mardan against an existing vacancy by order dated 21‑12‑1988 passed by the Divisional Superintendent, Pakistan Railways, Peshawar, (respondent No.5). The order dated 21‑12‑1988 was subsequently withdrawn by order dated 4‑1‑1989 passed by the General Manager, Commercial. However, another order was issued on 14‑9‑1989 by the Divisional Personnel Officer, Pakistan Railways (respondent No. 6) which said that the order of reversion dated 21‑12‑1988 still holds the field and that the appellant stands reverted to his substantive post of SCA (Goods) and posted at Mardan. He was to be replaced by one Mr. Abdur Rahman who refused to join and on 1‑10‑1989 Mr. Ali Muhammad was appointed to officiate as Claim Inspector in place of the appellant.

4. He challenged the validity of dated 7d‑9‑1989 in an application under section 34 of the Industrial Relations Ordinance, 1969, which was returned for want of jurisdiction on 28‑3‑1991. Thereafter, he addressed departmental appeal dated 22‑4‑1991 to the General Manager, Pakistan Railways, Lahore.

5. It may also be mentioned as a material circumstance that during the pendency of his petition under section 34 of the said Ordinance when he was still working as Claim. Inspector on the strength of an injunction issued by the Court concerned, he was approved for promotion as Claim Inspector (BPS‑12) in consequence of the Selection Committee's meeting held on 18‑4‑1990. He was then appointed to officiate as Claim Inspector against an existing vacancy by order dated 12‑7‑1990 and posted at Headquarters Office, Lahore.

6. The relief sought is that "the impugned orders of reversion may please be set aside and the respondents be directed to regularise and confirm the appellant as Claim Inspector in BPS‑12 from 22‑1‑1986 and to pay all the arrears of pay from 20‑1‑1986 in BPS‑12, with such other consequential relief to which the appellant may be found entitled in the circumstances of the case."

7. The basis of the appellant's case is that he performed the duties of the post of Claim Inspector for a period of more than three years and that he was entitled to be regularized and confirmed against the post under the rules and instructions issued by the Department from time to time. During the course of arguments it was pointed out to the appellant's learned counsel that the instructions relied upon by him and placed on record had no application to the instant case as they dealt only with the confirmation of the staff. Some of the instructions were in respect of continuation of a temporary post for a period of more than three years. On expressing an implied concession, the learned counsel did not appear to have pressed his claim regarding regularization of the appellant's posting as Claim Inspector with effect from 20‑1‑1986. It was, however, contended that he was entitled to draw pay of the post with effect from the date he had been performing its, functions.

8. However, even relief regarding pay of the post cannot be granted under the circumstances of the case. In the first place, it is difficult to spell out from his prayer that he has asked for pay of the post of Claim Inspector. His I main grievance, as we see from the prayer part, is that the order of his reversion was illegal and that he was entitled to be regularized and confirmed as a Claim Inspector with effect from 22‑1‑1986. Therefore, he asked for an order setting aside the order of his reversion with a direction to the respondents to regularize him as Claim Inspector from 22‑1‑1986. The prayer regarding payment of arrears clearly appears to have been made only as a necessary consequence of his regularization as Claim Inspector.

9. This view is also supported from the allegations made in the grounds of appeal. The emphasis is on the fact that the order of his reversion was illegal and that he was entitled to be regularized as Claim Inspector with effect from 22‑1‑1986. There is nothing in the allegations to suggest that the appellant had any intention of making out a case for payment of the emoluments of higher post against which he had been working.

10. Further, he does not appear to have made a statutory and factual foundation for claiming pay of the post by making any departmental appeal or representation. As already pointed out, he was appointed as such with effect from 20‑1‑1986 on ad hoc basis. He was well aware of the fact that the pay of the post of Claim Inspector (BPS‑12) is not being paid to him. In spite of this awareness, however, he never made any representation to the competent authority claiming emoluments of the higher post. He was reverted to his substantive post on 21‑12‑1988 and, after this order was withdrawn, again on 14‑9‑1989. He made representations to the General Manager, Commercial, Chief Personnel Officer and the Divisional Superintendent ‑ of Pakistan Railways. But the grievance in all these representations was only with regard to his reversion and not in respect of the emoluments of the higher post he was holding.

11. Even in the departmental appeal addressed on 22‑4‑1991, after his petition under section 34 of the Ordinance had been dismissed for want of jurisdiction, he does not appear to have made out a case for the payment of emoluments of higher post. What he prayed for was that he may be confirmed and regularized from 20‑1‑1989. The prayer regarding fixation of pay in BPS‑12, was, clearly incidental, along with the grant of seniority with effect from the, date of regularization. The result is that no case for emoluments of higher pose has either been made in the grounds of appeal or in the departmental representations.

12. Even if it be assumed, for the sake of ratiocination; that any such claim can be spelled out from his representations or grounds of appeal, we hold the view that the departmental appeal addressed to the general manager on 22‑4‑1991 was not within time. There is substance in the allegation by the respondents in the written statement that he accepted his ad hoc appointment as Claim Inspector of his own volition, on the same pay which he had been receiving as SCA (Goods). As we have already pointed out before, he' has all along been aware of the fact that he was being paid the emoluments of the post of SCA (Goods) (BPS‑8). There was no reason why, if at all he was aggrieved on account of payment of the pay of lower post, he should not have made a representation well in time to agitate the matter. There seems to be some weight in the Department's contention, that his reticence was for fear than in the event of a representation, he may not be relegated to his substantive post. Any way the fact remains that no representation was made with in time to the competent Authority for the redress of any such grievance. We hold on the strength of the Supreme Court's rulings 1985 SCMR 799 and 1989 SCMR 174 that the appeal is time‑barred.

13. For these reasons, the appeal is dismissed as being without` any force, incompetent and time‑barred.

14. There will be no order as to costs.

A.A./783/Sr.F Appeal dismissed.