ARSHAD BAIG Versus SECRETARY TO GOVERNMENT OF PAKISTAN, MINISTRY OF INTERIOR, ISLAMABAD
CH. HASAN NAWAZ (MEMBER): ‑‑ This appeal under section 4 of the Service Tribunals Act, 1973, was filed on 12‑3‑1990, after compliance with the statutory requirements of departmental appeal, in the background of the following material facts.
2. The appellant who was an Upper Division Clerk in the office of Deputy Director, Regional Registration Office, Lahore, was promoted as Superintendent (B‑10) on 3‑12‑1983 with the, following order (Annexure A/1):
"O FFICE ORDER NO 119
Consequent upon the selection by the Departmental Promotion Committee the following Upper Division Clerks of Grade‑7 are promoted to the post of Superintendent in Grade‑10 with effect from ‑ 3‑12‑1983 and posted to the station given against each:
Sr. No.
Name ??????????????????????????
Posting Station
(1) ???????
M/s. Waheed Ahmad, ?
DRO, Faisalabad
???????????
DRO, Faisalabad.
???????????????????????
(2)
Arshad Baig,
DRO, Sheikhupura
??????????? ???????????
DRO, Lahore at present working in R.R.O., Lahore.
???????????
(3)
Ghulam Haider, ???????????
DRO, Okara
???????????
DRO, Dera Ghazi Khan.
???????????????????????????????????
(4) ???????
Amir Bux,
DRO, Vehari
??????????? DRO, Vehari.
? (Sd.) MUBARIK BEG
??????????????????????????????????????????????? Administrative Officer,
??????????????????????????????????????????????????????????? for Deputy Director."
3. On promotion he was posted as Superintendent in the office of District Registration Office, Sheikhupura, where he served as such from 3‑12‑1986 to 7‑7‑1986, when he was transferred to District Registration Office, Lahore.
4. On 8‑7‑1989, he was reverted to his original post of U.D.C., with the following order (Annexure A/2):
In compliance to Director General of Registration, HQs Office, Islamabad O.M. No. Regn. 2/10/83‑(Admn.2) dated 29‑6‑1989, promotion order of Mr. Arshad Beg from the post of U.D.C. to the post of Superintendent Grade‑10, issued vide this offiri O.O.No.119 (Regn.56/5/83‑RRO (Admn.) dated 3‑12‑1983, whose name is appearing at Sr.No.2, is hereby withdrawn with immediate effect.
He is directed to report for duty at Regional Regn. Office, Lahore as U.D.C.
(Sd.) Akhtar Ali Rizvi
Deputy Director
Phone No.854558"
5. Instead of reporting for duty at the Regional Registration Office, Lahore as UDC in compliance with this order, he went on four days' casual leave from 9‑7‑1989 to 12‑7‑1989 during which, on 11‑7‑1989, he addressed a representation to Secretary, Ministry of Interior, Government of Pakistan, challenging the validity of the order of his reversion (Annexure A/4). On this representation, the Secretary stayed further proceedings in the matter and directed the concerned authority, to examine the matter and submit the case with his comments. In this order, it was observed by the Secretary as to why the junior most Superintendent was not reverted.
6. On the same date, i1‑7‑1989 that is to say; the appellant addressed an application to the District Registrar of District Registration Office, where it was requested that he may not be relieved of his duty as Superintendent in that office because of the Interior Secretary's order staying further proceedings (Annexure A/5). A few days later, on 19‑7‑1989, he addressed a letter to the District Registrar, again bringing the Secretary's order to his notice in support of the request that he may be informed whether those orders had been implemented, before he could join the new station of his posting.
7. It appears that the order of his reversion was not withdrawn irrespective of the Secretary's order and Memo dated 18‑7‑1989 (Annexure A/7) was addressed to him whereby he was directed to report at the Regional Registration Office immediately to join his duties. This Memo said that he was found roaming about or sitting in the office rooms during working hours without any official work, although he had been transferred to the Regional Registration Office, Lahore and relieved for his duties as Superintendent with effect from 11‑7‑1989.
8. The Lahore District Registration Office letter dated 20‑7‑1989 (Annexure A/8) addressed to the Deputy Director of Regional Registration Office, Lahore shows that the appellant made another representation after having been in receipt of Memo. dated 18‑7‑1989 where he requested that he may be intimated whether the remarks of Secretary, Interior had been implemented. The District Registration Officer, reported that he had already been relieved of his duties with effect from 11‑7‑1989 (A.N.) in absentia, before ?????? the Secretary's remarks had been received in the office. He also reported that he had not joined the office of his new posting as U.D.C. in spite of repeated directions, A request was made to the Deputy Director to advise the appellant to join the duty 'in the Regional Registration Office at Lahore. Letter dated 3‑8‑1989 (Annexure A/9) addressed to the Deputy Director also shows that appellant failed to join his duty in spite of repeated warnings and directions. It was recommended that disciplinary action may be taken against him.
9. Subsequent correspondence on the subject, the details of which are unnecessary, shows that the appellant failed to join the new office of his posting in spite of directions of the concerned authorities to that effect. Finally, he was again directed by Memo. dated 9‑8‑1989 (Annexure A/12) to report for duty immediately, failing which he will be considered to have been placed under suspension from the date of absence without permission and proceedings against him will by held under the Government Servants (Efficiency & Discipline) Rules, 1973. He was told that this is in compliance with the order of Director (Admn.), Headquarters Office, Islamabad conveyed to the District Registration Office, Lahore on 6‑8‑1989.
10. This Memo, of 9‑8‑1989 appears to have prompted him to file a Constitutional, petition before the Lahore High Court on 17‑8‑1989 for a Writ directing the respondents to refrain from acting upon the impugned order of reversion dated 8‑7‑1989. It was further prayed that the impugned order may be declared as illegal, inoperative and mala fide. On this petition, the High Court suspended the operation of the impugned order on 2‑9‑1989. This older was confirmed by the High Court on 9‑9‑1989.
11. Finally, on 7‑3‑1990 when the petition came up for hearing in the High Court, on an objection raised by the respondent's learned counsel regarding jurisdiction and competency of the petition, the petitioner's learned counsel stated at the Bar that in view of the legal position annunciated in PLD 1975 Lah. 813, he had instructions to refrain from pressing ‑the petition, to be able to avail his remedy in accordance with law.
12. Whereafter the present appeal was filed on 12‑3‑1990 with two prayers. First, the order of reversion dated 8‑7‑1989 may be set aside. Second, mala fide disciplinary proceedings initiated against the appellant may be ordered to be dropped.
13. The appeal was subsequently amended and prayer made in the amended appeal was that the order of reversion dated 8‑7‑1989, based upon the Director General's letter dated 29‑6‑1989 (Annexure A/2/1) may be set aside. The other prayer was the same as made in the earlier appeal.
14. We are, however, of the considered view that the appellant is not entitled to any relief under the circumstances of this case. The following reasons are in support.
15. The order of appellant's promotion dated 3‑12‑1983 was passed in utter disregard of the relevant rules on the subject. Notification dated 27‑4‑1976 'shows that the Interior Division, laid down the method, qualifications and other conditions for promotion to the posts of Superintendents, in pursuance of sub‑rule (2) of Rule '3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. It was laid down that these posts shall be filled by promotion from amongst Upper Division Clerks employed in the Provincial/District Census & Registration Office concerned who have rendered 3 years service as Upper Division Clerks, provided that if no suitable person is available, the post may be filled from amongst the UDCs employed in other Provincial/District Census & Registration Offices who have rendered three years continuous satisfactory service in the grade.
16. There is no dispute about the fact that on a vacancy in the post of Superintendent, in the Registration Office, Sheikhupura an Upper Division Clerk of that office with three years service was to be promoted as Superintendent. If no suitable UDC could be available, the post was then to be filled from amongst the UDCs employed in other District Registration Offices, with the requisite qualifications. However, there is absolutely nothing on the record to show that no suitable UDC with the requisite service was available for promotion as Superintendent from the District Registration Office, Sheikhupura. During the course of arguments, respondents learned counsel rather contended, on the basis of record, that such a person was available for promotion. This being so, there was no justification for promotion of the appellant who was serving as UDC in the Regional Registration Office at Lahore.
17. Violation of the rules apart, the order of promotion was passed under the signatures of Mr. Mubarik Beg who is admittedly the appellant's real brother and was serving at that time as Administrative Officer in the Regional Office. The signatures appear to have been put for the Deputy Director who was the competent authority. We can ill‑afford to ignore or disregard the respondents pleadings on this aspect of the matter; where it is alleged that order of promotion "was based on misrepresentation of facts and fraudulently obtained with the collaboration of real brother of the appellant who is the Administrative Officer in Regional Registration Office, Lahore".
18. Furthermore, the Administrative Officer, the appellant's real brother that is to say, could affix his signatures for the Deputy Director only if there had been any order on the file for the appellant's promotion passed by the competent authority. No such order has, however, been produced before us. This being the situation, it is impossible to hold that Mr. Mubarik Beg had any authority to sign the order of promotion of his brother and post him at Sheikhupura.
19. It may also be mentioned that an inquiry seems to have been conducted into the circumstances of how the order of promotion was contrived. During this inquiry, the statement of Deputy Director concerned was recorded. It was put to him that he signed the other papers on 3‑12‑1983 and that he was present in the office. He could not deny this fact. If this was the case, there was no reason why he himself should not have signed the order of promotion. There is no plausible explanation in his statement for having failed to do the needful; which too shows that the respondents' allegation regarding fraudulent nature of the order of promotion is not wholly without substance.
20. In paragraph‑2 of the original appeal, it was pleaded that the appellant's promotion by order, dated 3‑12‑1983 was against a regular vacancy, which became available due to the retirement of Mr. Iqbal Hameed Qureshi. It has, however, not been clarified as to where he was serving at the time of retirement. Any way, in paragraph‑3 it is alleged that the appellant took over as Superintendent with effect from 3‑12‑1983 and posted in the Office of District Registration Office, Sheikhupura. In the amended appeal, however, the position adopted was that "vide Office Order No.120, dated 3‑12‑1983, adjustments were made in the post of Superintendent at Sheikhupura vice Manzoor Hussain Jaffary who was posted at Khushab.
21. This Office Order No. 120 was placed on record alongwith the amended appeal (Annexure A/1/1). As we see, it was also passed under the signatures of the appellant's brother Mr. Mubarik Beg on 3‑12‑1983. Thus we find that by Order No. 119 the appellant was promoted as Superintendent and posted in the District Registration Officer, Sheikhupura. On the same date, that is 3‑12‑1983, another Order No. 120 was issued under the signatures of appellant's brother transferring Manzoor Hussain Jaffary, Superintendent of the Registration Office, Sheikhupura to Khushab. It would appear that this was done to make room for the appellant's promotion. However, what is, not understandable is the fact as to why in the original appeal it was mentioned that his promotion had been brought about against a regular vacancy caused due to the retirement of Mr. Iqbal Hameed Qureshi.
22. The appellant's case is that a DPC was held and he was selected for promotion as Superintendent and that this promotion was immediately made on the recommendations of the Promotion Committee. Nothing has, however, been produced to show that any meeting of the Committee was held, and that the Committee recommended the appellant for promotion. There is no record of the minutes of any such meeting. It may be mentioned that the respondents have specifically denied that any meeting was held and there could be nor question of any recommendations for the appellant's promotion. In his statement recorded during the course of inquiry, the Deputy Director concerned did say that this meeting was held and that he too was a Member of the Committee. However, his solitary statement is not reliable, partly because the statements of the Chairman and other Members of the Committee have not been recorded and partly because it was a matter to be established by the production of documentary evidence.
23. It was contended by the respondents' learned counsel during the course of arguments that a seniority list of UDCs was circulated on 3‑12‑1983 inviting objections from concerned officials. This was not denied even by the appellant's learned counsel. If this was so, we are unable to understand how the DPC could make, if at all it did, any recommendation, before finalisation of the seniority list.
24. We may as well take notice of the respondents' pleadings in paragraph‑4 of the written statement. It was stated that factual position is that two senior most UDCs of District Registration Office, Sheikhupura namely Noor Ahmed Rana and Munawar Iqbal submitted representation against irregular promotion of the appellant. They claimed that their seniority is maintained Districtwise; that they were two senior UDCs in the Registration Office of Sheikhupura and they should, 'therefore, have been considered for promotion, to the post of Superintendent in that office instead of filling it by promotion of the appellant from Regional Registration Office, Lahore. It is further pleaded that Noor Ahmad Rana UDC made several representations to the Deputy Director Regional Registration Office, Lahore, but the matter remained pending all through this time and eventually the order of appellant's promotion was withdrawn under the orders of the Director‑General passed on 29‑6‑1989.
25. It was contended by the appellant's learned counsel that he was senior as UDC: to any of the Upper Division Clerks in the District Registration Office, Sheikhupura and that there was, therefore, nothing unjust or wrong about his promotion against a vacancy of that district. There is no denial of the fact that his promotion, various other circumstances apart, was in violation of the Promotion Rules. Leaving this aspect aside, we maintain that there is no force in the learned counsel's contention, because if at all somebody else was to be promoted against Sheikhupura vacancy, it could be done only on the basis of regional seniority including all UDCs of the region, and not those of the Regional office alone, there being no justification for giving a preferential treatment to the appellant. It may be mentioned that this is not his claim that he was the senior most UDC at the regional level. In fact it is nobody's case that the matter was considered on the basis of regional seniority and that the rules permitted any such course.
26. Before leave of the matter is taken, we might as well advert to another fact. The order of promotion dated 3‑12‑1983 shows that certain other UDCs were also promoted as Superintendents and posted at various stations. Their reversion was not, however, ordered, like it was done in the case of the appellant. Relying upon this circumstance, his learned counsel contended that this was a case of discrimination and that he should not have been singled out for reversion. We have already mentioned before that his promotion was challenged by Mr. Noor Ahmed Rana UDC of Sheikhupura whose repeated representations, starting from 25‑1‑1984, put the concerned authorities on inquiry. Then, we have a feeling that in the appellant's case, the fact of his brother being there as Administrative Officer, appears to have made a difference and lent gravity to the matter in his case, ultimately leading the competent authority to the passage of impugned order.
27. This consideration notwithstanding, we feel like pointing out that promotion of certain other UDCs alongwith with that of the appellant was rather significant, which is to say the least. Be that as it may, the mere fact that the others have not so far been reverted, would not by itself impart legality to the order of his promotion. It would nevertheless remain as unlawful as ever.
28. Further, we may consider the matter from another point. It is difficult to agree that the impugned order of reversion under the circumstances, can in any manner be said to have caused any discrimination; which is because nobody can claim illegal advantage as a matter of right, merely because others have managed to receive it. Then, the other promotees are not before us as parties and any reference to their matter should be avoided. It must, however, be said that the order suffers from rank illegality and being void ab initio, could not create any right to be available for investiture. We, therefore, consider it expedient to leave the matter of other promotees alone to be dealt with by the department in accordance with law.
29. These considerations in view, we are in do doubt whatever that the order of appellant's promotion dated 3‑12‑1983 was contrived by taking undue advantage of his real brother's presence as Administrative Officer in the Regional Registration Office, Lahore; and that it was ab initio void and of no legal effect, as could have conferred any right upon him. It had to be withdrawn to promote the cause of justice and we see no reason for interference in the inpugned order of 8‑7‑1989.
30. We may also deal with the objection regarding limitation. We have already seen in the facts that after passage of the impugned order of reversion on 8‑7‑1989, the appellant addressed a representation to the Secretary, Interior on 11‑7‑1989. Under section 4(1) (a) of the Act he should have had recourse to the Tribunal within 30 days after the lapse of a period 90 days from 11‑7‑1989 when this representation was preferred. The present appeal filed on 12‑3‑1990 is evidently beyond the period of limitation. The reason mentioned in the application for condonation of delay is that he went to the High Court with a Constitutional petition under bona fide advice of his counsel and the statutory period of 120 days expired during the pendency of this petition. It was pleaded that delay had not been caused because of the appellant's indolence.
31. Under the circumstances of this case, of which due notice has been taken by us, the appellant cannot be said to have prosecuted his cause, before a wrong forum in good faith within the meaning of section 14 of the Limitation Act. We are in no doubt that he went to the High Court on 17‑8‑1989 after having been served with Memo dated 9‑8‑1989 where he was again directed to report for duty immediately at Regional Registration Office, Lahore, and warned that his failure will place him under suspension and justify the initiation of disciplinary proceedings. As we see from letter, dated 8‑8‑1989 (Annexure A/11) he was served with this Memo by way of last warning. His only purpose to go to the High Court was to obtain a stay order after a scare had been caused on account of Memo dated 9‑8‑1989, which was done in spite of the availability of legal advice. We think this alone is enough to eliminate the presence of any good-faith. There was no doubt about the fact that the matter was that of service and thus within the exclusive jurisdiction of the Tribunal. We are of the view, that recourse to the High Court hardly provided him with any excuse to delay the matter and the time spent there in pursuance of the petition cannot be excluded while determining the question of limitation.
32. Reliance has been placed by the appellant in his application for condonation on the following observations made by the High Court in its order, dated 7‑3‑1990. "The learned counsel for the petitioner, in this view of the legal position states that he has instructions not to press this petition in order to avail the remedy as provided under law. The petitioner will be within right to have benefit of sections 5 and 14 of the Limitation Act". It was contended that delay should be condoned in view of these observations. All we might say is that these observations do not have any bearing on the sufficiency or otherwise of the reasons for condonation and that they were only advisory in nature and this advice was meant only for the appellant. It was suggested that he had the right to make an application for condonation of delay and the observations were only obiter in nature. We will, therefore, find that the application under section 5 of the Limitation Act does not disclose any justification for condonation.
33. For the reasons mentioned above, we hold that the appeal is without any force. It is accordingly dismissed. No order as to costs.
H.B.T./715/Sr.F ?????????
Appeal dismissed.