IFTIKHARULLAH MALLHI Versus CHIEF SECRETARY

1. MUNAWAR ALI KHAN (CHAIRMAN).‑‑‑ The appellant, Iftikharullah Mallhi who retired from Government service as Executive Engineer on 16‑12‑1990, has filed this appeal on 25‑4‑1992, with the prayer; that this Honourable Tribunal may be pleased to allow this appeal, set aside the impugned orders of the respondents Nos.‑l and 2 dated 23‑12‑1991 and 24‑3‑1992 (dates written in pencil) and order that Appellant's promotions with all back benefits (words underlined written in ink) to the posts of Assistant Engineer Class‑11, Executive Engineer, and Superintending Engineer be notified respectively from 13‑10‑1955, 25‑11‑1960 and 23‑6‑1973. "

2. The factual background of the appellant's case is that with 3 years diploma in Civil Engineering the appellant joined Government service as an Overseer on 11‑8‑1952. Although he was promoted as Sub‑Divisional Officer on 18th May, 1954, yet on reference from the then Provincial Government of West Pakistan, the then West Pakistan Public Service Commission had agreed to the appellant's promotion to the unclassified Gazetted post of Sub- Divisional Officer up to 16‑8‑1984 and Class‑II post (Temporary) from 17‑8 1964. Despite this, the appellant's case is that his correct seniority was never determined. He therefore, kept on making representations for the same, claiming seniority over all those persons who at the time of his appointment as well as confirmation in service did not possess the prescribed qualification. In May 1990 the appellant came to know that his appeal-dated 27‑1‑1988 had been accepted by the Chief Secretary, and the latter's decision was conveyed to him by the memo dated 1‑10‑1990 of the Secretary, Communication and Works Department. By the said memo the S&GAD's advice dated 14‑4‑1990 was forwarded to him which showed that his appeal had been allowed and he was assigned seniority over all those Assistant Engineers who acquired the prescribed qualification of diploma after his appointment in service. In compliance of the said advice of the S&GAD, the appellant was assigned seniority immediately above Mr. Dattar Dino Shaikh XEN vide the notification dated 29‑9‑1991, obviously issued after his retirement on 16‑12‑1990. On receipt of that notification the appellant made application dated 12‑10‑1991 to the Secretary, Communication and Works Department, praying for allowing him the benefits accruing from the said notification. His request was somehow turned down vide the Communication and Works Department's memo dated 23‑12‑1991. The appellant preferred departmental appeal from the said order but that too was rejected by the impugned order dated 24‑3‑1992 and hence the appellant was constrained to file the present appeal.

3. We heard Mr. Hassan Akbar for the appellant and Mr. Abdul Latif Ansari, AA.‑G. on behalf of the official respondents. We also carefully went through the relevant material made available to us by the parties.

4. In course of the arguments made at the Bar, two very significant legal flaws were brought to our notice. It was first contended that this Tribunal had no jurisdiction to grant the relief sought by the appellant. Elaborating this argument, the learned AA.‑G. submitted that, as provided in proviso (b) Section 4 of the Sindh Service Tribunals Act, 1973, where the question of determining fitness for appointment or promotion was involved the jurisdiction of this Tribunal stood barred. According to him in this case too the Tribunal was called upon to decide whether the appellant was entitled to promotion from back dates, which could be allowed to him only when he was declared fit for promotion on such dates. In order to appreciate his view point the said proviso is reproduced as under:

2. "(b) no appeal shall lie to a Tribunal against an order or a decision of a departmental authority determining the fitness or otherwise of a person, to be appointed to or hold a particular post or, to be promoted to a higher post or grade; and"

3. The question was whether the order impugned in this appeal fell within the above proviso. In other words we have to see if the impugned order involved the determination of the appellant's fitness for promotion to the specified posts at particular point of time. Reverting to the prayer reproduced in earlier part of this judgment, it would appear that the appellant had grievance against two orders which he has sought to be set aside; i.e. order dated 23‑12‑1991 and order dated 24‑3‑1992. However, as stated in the opening paragraph of the memo of this appeal, the appellant felt aggrieved by the Chief Secretary's order contained in the S&GAD's Memorandum dated 24‑3‑1992. The said memorandum reads as under:‑‑

4. "Please refer to your appeal dated 22‑1‑1992 addressed to the Chief Secretary on the subject noted above.

5. Your appeal has already been decide by Appellate Authority on 14‑4‑1990 and you were informed accordingly. In case you felt aggrieved with the decision you had the remedy of filing an appeal before the Sindh Service Tribunal within a period of 30 days.

6. It is also barred by the maxim Res-judicata as the Departmental Appellate Authority has already decided the appeal for the same cause of action and the relief sought in the present appeal.

7. This is for information."

8. It would appear that the above memorandum was not an order but merely information apprising the appellant that his departmental appeal was decided as far back as 14‑4‑1990 and that such intimation was conveyed to him. So the actual order of the Chief Secretary whereby the appellant's departmental appeal was decided was order dated 14‑4‑1990. The material portion of the said order reads as under:‑‑

9. "2. The appeal preferred .by Mr. Iftikharullah Mallhi, Assistant Project Director‑II, Central Police Office, Karachi has been considered by the Chief Secretary and allowed. He will accordingly stand senior to those Asstt. Engineers who completed the requisite qualification of diploma after his appointment in service."

10. Obviously the above order did not in any way aggrieve the appellant but it rather allowed his prayer for seniority vis‑a‑vis the Assistant Engineers who completed their prescribed qualification after his appointment. In pursuance of the said order the appellant was assigned seniority immediately above Mr. Datar Dino Shaikh, Executive Engineer, since retired vide Communication and Works Department's notification dated 29‑1‑1991. On the basis of the said notification the appellant made representation dated 12‑10‑1991 to the Secretary Communication and Works Department, praying therein for promotion to the posts of Assistant Engineer Class‑II, Engineer, S.E. and Chief Engineer respectively from 13‑10‑1955, 25‑11‑1960, 23‑6‑1973 and 31‑3‑1977. His said prayer was turned down vide order dated 23‑12‑1991 of the Communication & Works Department. As pointed out above the said order (dated 23‑12‑1991) together with the order dated 24‑3‑1992 have been called in question. But as has been explained earlier the latter order was merely an information and not the order. It was actually the former order dated 23‑12‑1991 by which the appellant's request for promotion to various posts from various dates had been turned down. Again it was this order, which has been made the real target in this appeal. While rejecting the appellant's request for the said promotions. The order states;

11. "In this connection it may be pointed out that you were duly promoted to higher posts on your turn in accordance with the rules on the subject, as and when you were found fit. Moreover, promotion is also covered by the same rules. Hence question of promotion from back dates does not arise."

12. Thus, it has been made abundantly clear in the above order that the appellant was promoted on his turn as and when he was found fit for promotion in accordance with the relevant rules. Consequently his request for promotion from back dates was found to be without any force and hence it was turned down. In other words the competent authorities did not consider the appellant fit for promotion from back dates. Since the appellant's fitness for promotion was involved in the above order. The interference of this Tribunal was not called for. Moreover, the appellant's original grievance with regard to his seniority having been redressed, his further demand obviously was about consequent benefits arising from his revised seniority. 'The consequent benefit following revised seniority in the mind of the appellant could only be his promotion from back dates for which he actually requested in his representation and his such request was turned down. The benefit of promotion could not accrue to the appellant automatically in the wake of his improved seniority. Of course seniority is an important factor to be considered for the purpose of promotion. But more important is the fitness of the person considered for promotion. This is precisely the reason for laying down the prescribed procedure for making promotion under which the Departmental Promotion Committee is set in motion and after scrutinising the service record of various candidates gives its approval for promotion of the cleared candidates. It is on basis of the said committee's recommendations that promotion is notified. In the case of the appellant by the above order his request for promotion from back dates has rightly been rejected. In any case this Tribunal has no jurisdiction to interfere with the above order of the rejection. In support of the appellant's case, his learned counsel has placed reliance on several cases decided by other Service Tribunals. On perusal of those gases it was found that the facts involved in the said cases were distinguishable from the facts of the instant case and hence the decisions taken therein were not helpful to the appellant.

5. The other legal flaw highlighted in course of the arguments was with regard to limitation. The learned A.A.‑G. submitted that the appeal was hopelessly time‑barred. No doubt as per recitals contained in the memo of appeal, the cause of action accrued to the appellant, sometime in the middle of sixties when he was promoted as Sub‑Divisional Officer. But he has filed this appeal admittedly after his retirement on 16‑12‑1990. The only explanation furnished by the appellant for this undue delay of over three decades is that he kept on making representations for fixation of his proper seniority, which was ultimately determined by the order-dated 14‑4‑1990. This explanation, in our opinion, was far from convincing. He waited for passing of the aforesaid order obviously by his own choice: He thereby incurred the great risk of getting his future litigation time‑barred. He was not supposed to wait indefinitely for the departmental decisions. Since he did not get the desired relief from the departmental authorities within reasonable period of time, he should have resorted to judicial remedy available to him. Instead the appellant spent the entire tenure of his service in only making empty representations, one after the other. He did not bother to follow the prescribed procedure, which required him to move from one step to another, taking care at the same time that all his such steps were taken within prescribed period of limitation. Quite obvious of all such legal requirements, the appellant has chosen to make the S&GAD's Memorandum, dated 24th March, 1992 as the basis for this appeal. The said memorandum has been reproduced hereinabove. It is clear that the said memorandum was not an order or decision challengeable in this appeal. It was merely an information that the appellant's departmental appeal was decided on 14‑4‑1990.

13. Apart from the S&GAD's Memorandum, dated 24‑3‑1992, the other order which has been challenged in this appeal is of the Communication and Works Department, dated 23‑12‑1991. This order was passed on the appellant's representation, dated 12th October 1991 wherein he had prayed for his retrospective promotions to various posts. He had made that representation after he was allowed seniority over Datar Dino Shaikh by Notification dated 29‑9‑1991. Thus, the order dated 23‑12‑1991 was an original order. No doubt it was challenged in the departmental appeal dated 22‑1‑1992. But instead of passing any definite order on that appeal, the appellant was informed that his appeal had already been decided on 14‑4‑1990, intimating him further that his so‑called departmental appeal (dated 22‑1‑1992) was hit by res judicata and if he felt aggrieved by earlier order dated 14‑4‑1990 he could have challenged that order in his departmental appeal. As pointed out above the said order was prima facie not an adverse order. But if it was read alongwith the appellant's appeal in which it was passed, entirely different situation would emerge. In paras, 6 and 7 of his memo. of appeal it is stated: "Sometime in the month of May 1990, the appellant learnt that his appeal dated 27‑1‑1988 has been accepted by the respondent No. 1 .... ... ... ... .... At long last, order of the respondent No. 1 on appellant's appeal dated 27‑1‑1988 (copy annexed as B/1 'I was communicated by the respondent No. 2 by Memo. No.EI(C&W)1‑10/89, dated 1‑10‑1990 ... ... ... ... ... ..." Thus, the order dated 14‑4‑1990 was passed on the appellant's departmental appeal dated 27‑1‑1988. Photocopy of the said appeal was produced by the appellant's learned counsel. On its perusal, it was revealed that apart from fixation of his seniority, the appellant had prayed for retrospective promotion also. In this connection the relevant portion of the appeal is reproduced as under:‑‑

14. "18. The following relief may be granted to me‑‑‑

(1) .............................................

(2) ......................................

(3) that the appellant be given promotion to BS‑18 as Executive Engineer and promoted retrospectively with effect from the date when all the above‑named his other juniors were promoted in BS‑18.

(4) .

15. Despite his specific request for retrospective promotion to BS‑18, the order passed on the appellant's appeal was silent in this regard, and such omission. amounted to rejection of his request for the said promotion. This being the position, the appellant should have preferred departmental appeal against the order dated 14‑4‑1990 relating to retrospective promotion. But he chose to ignore that aspect of the said order. Having adopted such attitude the appellant was not entitled to agitate for his retrospective promotions in his subsequent departmental appeal riled after about two years, on 22‑1‑1992. Because it was also barred by the principle of res judicata. For these reasons we find some force. in the argument that the appeal was time‑barred.

16. The upshot of the above discussion is that appeal must fail. Accordingly it is dismissed with no order as to costs.

17. H.B.T./407/Sr.S Appeal dismissed.