Delay in filing departmental appeal/representation
Kalim Arshad Khan
(Querist) 10 December 2012
This query is : Resolved
Salam to all the learned experts.
I am serving as Additional Sessions Judge in KPK Province of Pakistan. I had topped the merit list in 2001 but was dropped. i challenged the order and was ultimately appointed in Feb, 2005 but was placed at the bottom of the list of Addl Sessions Judges as they were in 2005. On 14.11.2009 seniority list was circulated while i was away even from my province being on study leave. I was not officially communicated the list. when i got the knowledge and obtained the list i filed representation on 14.01.2010 i.e. within five days of receipt of the list and then appeal. 0n 08.12.2012 my appeal was dismissed on the ground that my departmental representation was barred by time. i requested that i was on leave and was not communicated the seniority list but my request was not acceded. Am i right in saying that i filed departmental appeal/representation within time i.e. within 30 days of receipt of list and my service appeal seeking seniority along with my batch mates was not be thrown out on purely technical reason? Should i file appeal in the Supreme Court? Please guide. Thanks. Regards. Kalim Arshad Khan, Additional District & Sessions Judge, Bannu, Khyber Pakhtunkhwa, Pakistan. 00923009091414 kalimarshadkhan@yahoo.com
Guest
(Expert) 10 December 2012
Dear Mr. Khan.
So far as ruling position is concerned, I believe, the service/seniority rules prevalent in India and Pakistan are of the same pattern and procedure with no much difference in ruling position of both the countries. So, I am expressing my views accordingly.
First of all, so far as seniority list is concerned, it was the duty of the departmental authorities to ensure circularion of the seniority list to all the concerned cadre men well in time and each time the sniority list is prepared or revised. So, if you were on study leave, they should have sent a copy of the seniority list to you individually to note your position and to file objection by soecific fixed date/time, if there was any. Seniority list cannot be deemed to have been circulated to all the employees by keeping that dumped in office.
So far as your virtual seniority in the absence of your joining earlier than the existing additional judges was concerned, that could depend firstly what relief actually you sought from the court of law and secondly on the nature of relief you were provided with through the court judgment in your case, i.e., whether the court specifically ordered the adminstration to place your position amongst the 2001 batch or not. In the absence of such order, your position was possible to be fixed down below the exising serving additional district judges. So, if you did not seek relief for restoration of your original seniority of 2001, there is no mistake on the part of the administration to fix your seniority below the existing serving additional district judges. However, if you like, you may file a separate case for court order for restoration of your original seniority along with the 2001 batch candidates, instead of fighting with the departmental administrative authorities for restoration of the seniority. You cannot get your seniority refixed from administrative authorities, if the court order did not contain such order for seniority to be fixed anongst the cadidates of 2001.
But, must not forget to file an application for condonation of delay.
But still further, even if your seniority is restored along with the candidates of 2001 by an order of the competent court, your next promotion would be possible only after rendering certain specific number of years of service in the present cadre, if has already been specified in the recruitment rules for the next post.
Raj Kumar Makkad
(Expert) 10 December 2012
I fully agree with the detailed advice of Dhingra G.
Kalim Arshad Khan
(Querist) 13 December 2012
Thank you very much Mr Dhingra G and Raj Kumar Makkad G indeed. I am sorry i should have sent a very clear query clarifying even the questions raised by learned Dhingra G. Let me clarify the situation. The prayer in the writ petition was that the official respondents should be directed to issue appointment order to the petitioner(me) and all others in accordance with the merit order assigned by the selection authority. the petition was allowed as prayed for with the direction to the competent authority to appoint, adjust and accommodate me as Additional District & Sessions Judge on the available seat. Appointment letter was issued in pursuance of the judgment and the terms and conditions enumerated in the offer of appointment letter, which contained the very first term that i would be governed by the NWFP Judicial Service Rules, 2001. Rule 10 of the said rules is pertaining to seniority. which said that inter se seniority of the fresh recruits shall be determined by the High Court in accordance with the merit order assigned by the selection authority. since i was on the top of the selected candidates i had to be placed as senior most amongst the batch mates. but i was dropped from being appointed and i then filed writ petition which was allowed as above. Lahore High Court in a ruling reported as PLC 2002(CS)887 maintained/upheld/confirmed by the Supreme Court of Pakistan in PLJ 2002 SC 234 held that appointment and seniority are entirely two different things and that delayed appointment would not take away the right of seniority of the civil servant in accordance with the rules. the judgment has not been written as yet in the seniority appeal dismissed by the tribunal but apparently it would purely on question of limitation. it is necessary to point out here that during the pendency of seniority appeal before the tribunal, the then honourable Chief Justice Peshawar High Court had held my departmental representation to be infructuous due to filing of appeal before the tribunal and disposed of the same accordingly. The Chief Justice did not hold the same as BARRED BY TIME rather held that infructuous. Now please guide me on the point of limitation and merits too. Thank you very much once again sir.
Raj Kumar Makkad
(Expert) 13 December 2012
Most welcome Mr. Kalim! As you were entitled to be personally communicated the Seniority List fixed by administration which could not be made due to your study leave so your application within 30 days of receipt of that list to the department/competent authority shall be regarded within limitation. Otherwise also, your that representation was rejected only on the ground that your writ is pending so the application is infroutuous. This application/representation was not rejected on the ground of limitation. Once limitation condoned by department, cannot be raised at later stage. So I am of the firm opinion that your representation is well within limitation and accordingly keeling in view the legal position as discussed in the citation referred by you, the place of your seniority should be duly considered as per rules. You are advised to file an appeal before Supreme Court of Pakistan as you have best case in hand.
Guest
(Expert) 13 December 2012
Dear Mr. Kham,
Nice of you for providing additional information. Since your prayer was limited to the extent of seeking direction for issue of appointment order, not for fixing inter-se seniority also along with the relief sought for appointment, the authorities concerned seemed to have restricted their action only up to the issue of orders to appoint you by ignoring the rules on inter-se seniority.
It is also correct that the appointment and seniority are two different issues. However, had you prayed in the main petition for fixation of your inter-se seniority amongst the 2001 batch, as per the merit obtained, the judgment would have contained orders for fixation of inter-se also, as a clubbed issue to become binding on the administration to act on both the issues simultaneously.
It is also correct that when a case is subjudice, any departmental representation becomes infructuous. So, you could have waited for the orders of the competent court about your appointment/seniority, as the case may be, before submitting your departmental representation.
As you have referred about the pending written judgment on the issue of delayed appointment being not supposed to take away the right of seniority of the civil servant in accordance with the rules, it would be better for you to wait for the issue of the formal judgment for the time being. If the judgment is not specific to your own case, on issue of the same, by quoting the same, you may at first represent departmentally to exhaust the departmental channel. If the department fails to rectify the mistake only then file a petition to the HC to seek orders of the court to get relief on the issue, as per the latest judgment.
However, to be double sure not to get your petition rejected on the plea of being time barred under the law of limitations, must not fail to file application for condonation of delay, IF ANY (term "if any" be specified on the application).
May the almighty Allah honour you with success, as you are not wrong to fight for your right.
Hope I am clear in providing you appropriate guidance on the issue.
Kalim Arshad Khan
(Querist) 14 December 2012
I am really very grateful to both you sir, Mr Dhingra G & Makkad G for your valuable advices. Indeed these will be helpful to me for further line of action. May Allah Almighty bless you always. Ameen.
Raj Kumar Makkad
(Expert) 14 December 2012
Most welcome for your apreciation Kalim Bhayee.
Guest
(Expert) 14 December 2012
You are welcome and thanks also for your good wishes, Mr. Khan.
In case of any future need for solution in any service related problem, you can feel free to contact me through email also [dcgroup1962@gmail.com].
Kalim Arshad Khan
(Querist) 14 December 2012
Dear Mr. Dhingra G,
Salam.
I have been thinking over your last opinion last night and almost all the day today. Following are the points your goodness has again opined. I may again say something on each of the same to make my submission more clear.
1. Since your prayer was limited to the extent of seeking direction for issue of appointment order, not for fixing inter-se seniority also along with the relief sought for appointment, the authorities concerned seemed to have restricted their action only up to the issue of orders to appoint you by ignoring the rules on inter-se seniority.
2. It is also correct that the appointment and seniority are two different issues. However, had you prayed in the main petition for fixation of your inter-se seniority amongst the 2001 batch, as per the merit obtained, the judgment would have contained orders for fixation of inter-se also, as a clubbed issue to become binding on the administration to act on both the issues simultaneously.
Answer to 1 & 2 both: Sir although my prayer was limited to the extent of seeking direction for issue of appointment order but that strictly contained the words “appointment letter may be issued to the petitioner (me) and other candidates in accordance with merit order” which meant that I had asked for the inter-se seniority. Similarly while making appointment the offer letter contained the very first term that I would be governed by the NWFP Judicial Service Rules, 2001. Rule 10 of the said Rules is pertaining to seniority, which required my placement along with my batch mates. Appointment Notification was issued subject to the terms & conditions enumerated in the offer letter. This means that the concerned authority had issued appointment order according to Rules but while preparing seniority I was relegated. Was not it the legal and bounden duty of the authority to place me appropriately under the Rules? And if the authority has not acted as such, whether the act or omission of the authority was not illegal act and does any limitation run against such illegal order? If at all, the question of limitation is considered to be there?
3. It is also correct that when a case is subjudice, any departmental representation becomes infructuous. So, you could have waited for the orders of the competent court about your appointment/seniority, as the case may be, before submitting your departmental representation.
Answer: I may very humbly differ. Sir after my appointment in 2005 seniority list was circulated amongst the cadre Judges on 14.11.2009 and which I filed representation to the authority and then after waiting for 90 days I filed appeal before the tribunal which is within time. Only the departmental representation was alleged by the tribunal during the course of arguments to be barred by time further observing that that delay could not be condoned by the tribunal as that was the prerogative of the authority. True but the department had held the representation infructuos only by saying that due to filing of appeal before tribunal that had become so and not on the ground of delay. The departmental representation before the authority is a step towards filing appeal before the tribunal. I think representation could not become infructuos merely by filing appeal, if am not wrong. Similarly there was nothing else pending before any other forum to wait the decision as your goodness observed. So whether decision of the tribunal, which has not yet reached/written, that the departmental representation before the authority was not within time, would be correct finding as the authority had not dismissed the representation holding that to be barred by time rather the authority declared infructuous because appeal was filed before the tribunal?
4. As you have referred about the pending written judgment on the issue of delayed appointment being not supposed to take away the right of seniority of the civil servant in accordance with the rules, it would be better for you to wait for the issue of the formal judgment for the time being. If the judgment is not specific to your own case, on issue of the same, by quoting the same, you may at first represent departmentally to exhaust the departmental channel. If the department fails to rectify the mistake only then file a petition to the HC to seek orders of the court to get relief on the issue, as per the latest judgment.
My Request: Whether after decision of the tribunal I could again represent departmentally as I think I had already exhausted the departmental channel? It may be noted that our departmental authority is again the Chief Justice of the High Court. Similarly whether in presence of the barring provision in the Constitution under article 199(5) no order of high court or any judge of the high court be that an executive order could be called into question in writ jurisdiction, how could I file petition to the HC to seek order of the court get relief on the issue especially when the view taken in judgment rendered in my writ petition for appointment was overruled by the Supreme Court of Pakistan?
5. However, to be double sure not to get your petition rejected on the plea of being time barred under the law of limitations, must not fail to file application for condonation of delay, IF ANY (term "if any" be specified on the application).
Answer: Okay sir.
Guest
(Expert) 14 December 2012
Dear Mr. Khan,
You would like to agree with me that piecemeal information often creates communication gaps where the person responding on the information has no scope to presume at his own about the gaps of information.
Anyway, still I stand on my views, as I opined on taking the case on its face value. The reason is quite obvious, as departmental/adminitrative and the judicial aspects are quite distinct from each other. Once the case goes for judical review the back office adminstration/ management becomes or feels handicapped to take an independent action otherwise than on specific orders from the judiciary with the fear that any of their action may not, even unintentionally, violate the law of land.
Of course, some people dealing with the administration are really fearsome of the judicial process of any case, may be due to their ignorance of law, carelessness, partial understanding, wrong interpretations, or even being influenced by others' opinions on the case. So, you could also have been the prey of any or more of such type of mistakes of the administration. Otherwise there was nothing wrong in fixing your inter-se along with the 2001 batch, when you had already been treated as a qualified candidate of the 2001 batch.
About your prayer, I believe, when you preferred the case for judicial scrutiny, your prayer for relief about inter-se seniority should also have been separate and distinct from and in addition to the issue of appointment. Anyway, since every judgment/decision is a past thing, you need to restart your case on merits of the case and by filling up the past gaps or loopholes.
About your query, "after decision of the tribunal I could again represent departmentally as I think I had already exhausted the departmental channel?" you can knock the departmental channels again on every change of legal position. But your representation should bring only the fresh facts/ logic to light for consideration of the competent authority.
Raj Kumar Makkad
(Expert) 14 December 2012
I do agree with the opinion of Ld. Dhingra g.
Kalim Arshad Khan
(Querist) 14 December 2012
I m really very sorry to have bothered both of the very learned experts. Lastly please let me know any case law of your jurisdiction (Supreme Court of India) regarding second or new representation seeking seniority in accordance with law after dismissal of seniority appeal by teh service tribunal. Thanks sir.
Raj Kumar Makkad
(Expert) 14 December 2012
visit the following link and get the desired citation related with the judicial officers of India in almost similar matter and moreover this link contains many similar judgments:
http://www.indiankanoon.org/doc/594363/
Kalim Arshad Khan
(Querist) 11 January 2013
Salam,
Thank God at last the judgment has been handed down and copies delivered day before yesterday. I may reproduce the same verbatim for your kind perusal and for soliciting worthy opinion please. The judgment is as under:
JUDGMENT SHEET
IN THE PESHAWAR HIGH COURT PESHAWAR
JUDICIAL BRANCH
JUDGMENT
Service Appeal No.14 of 2010. Kalim Arshad Khan Vs. Peshawar High Court etc.
Date of hearing 08.12.2012
Appellant (Kalim Arshad Khan) By Mr Shakeel Ahmad Advocate
Respondent (Registrar PHC) Mr Abdul Samad Khan advocate, Mr Amjid Ali Advocate for 2, 3, 17, 18, 21, 32, 45, 47, 53, Mr Haider Ali for No.4 and Farhatullah Khan Additional Registrar Admn)
ROOH UL AMIN KHAN, J.- We propose to dispose of Service Appeals No.14 & 28 of 2010 and 93 of 2011 by this single judgment, wherein the same appellant has challenged the seniority list and promotion of the respondents.
2. The appellant is serving as Additional District & Sessions Judge in pursuance of his appointment order dated 22.02.2005 issued in the light of the judgment of the Peshawar High Court dated 03.03.2004. He has filed this appeal u/s-5 of KPK Subordinate Judiciary Service Tribunal Act, 1991 impugning the seniority list of AD&SJs notified on 14.11.2009. As per averments in the memo of appeal, the appellant has joined the sub-ordinate judiciary in the year 2005 as AD&SJ and since then performing his duties with clean and unblemished record to the entire satisfaction of his superiors. He alleged that he belonged to the group of AD&SJs of the year 2001 as the selection process of the appellant was completed and made in the year 2001, but his appointment order was not issued, therefore, he filed WP No.1412 of 2001, which was ultimately allowed by the High Court vide judgment dated 03.03.2004 against which Civil petition for Leave to Appeal was filed before the august Supreme Court of Pakistan, which was finally dismissed and the judgment of the Peshawar High Court attained finality; consequently the appointment order of the petitioner was issued on 22.02.2005; he could not join the post of AD&SJ in the year 2001 due to the inaction of the department, thus he was made of subject of discrimination by not putting his name at the relevant place in the seniority list along with his other batch mates. The appeal was contested by respondents No.1, 7, 9, 12, 15, 30, 31, 38, 44, 45, 47, 48, 52, 54, 56, 59, 65, 70, 71, 72 and 75. Rest of the respondents, despite service, did not appear thus were placed exparte.
3. Learned counsel for the respondents while arguing the case raised an objection on maintainability of the appeal in hand. He contended that seniority list was issued on 14.11.2009, while the appellant has filed representation on 14.01.2010, which is badly time barred. The appellant has not filed the departmental appeal within the prescribed period of limitation, thus the appeal before this tribunal is incompetent and not maintainable.
4. When the learned counsel for the appellant was confronted with the above said objection, he stated that at the time of issuing of the impugned seniority list the appellant was on study leave and had received the impugned seniority list at the address of the University at Lahore just five days prior of filing departmental representation.
5. The record divulges that the impugned seniority list was issued on 14.11.2009, while the petitioner has filed the representation on 14.01.2010. Along with the representation, the appellant has not filed any application for condonation of delay. Nothing is available on record to suggest that at the time of the issuance of seniority list he was out of station or received the seniority list five days prior to filing of his departmental representation. In absence of any sufficient cause for not filing representation within due time of limitation, it can be easily concluded that the appellant has filed the representation before the departmental authority with a delay of more than 30 days. Undisputedly the departmental appeal was not filed by the appellant within the prescribed period of limitation, consequently; the instant service appeal is incompetent and merits dismissal on this score alone. The question of competency of appeal in similar circumstances came up for hearing before the honourable Supreme Court of Pakistan in a case reported as Muhammad Ramzan versus Inspector General of Police Punjab & others (2007 SCMR 346), which was decided with the following observations:-
“As the departmental representation of the appellant was admittedly filed by him before the departmental authority beyond the prescribed period, therefore, appeal filed by the appellant before the Punjab Srevice Tribunal was not competent as law laid down by this court in various pronouncements, some of them are as follows:-
(i) Inayatullah’s case 2006 SCMR 535;
(ii) Unreported judgment dated 24.04.2006 in CP No.53/Q of 2004;
(iii) Muhammad Younis’s case 1989 SCMR 174;
(iv) Nasim Malik’s case PLD 1990 SC 951;
(v) Anwar ul Haq’s case 1995 SCMR 1505;
(vi) Khyber Zaman’s case 2004 SCMR 1426;
(vii) Zafar Mehmood’s case 1991 SCMR 640;
(viii) Anwar Muhammad’s case 1995 SCMR 950;
(ix) Asrar Ahmad Khan’s case 1990 SCMR 1356 and
(x) Ehsan Ali’s case PLD 1969 SC 176.
In view of what has been discussed above, the appeal filed by the appellant was not competent/maintainable in view of the aforesaid judgments as the appellant had not filed the departmental representation within the stipulated period.”
6. Similar view was taken by honourable Supreme Court of Pakistan in case titled as Muhamamd Islam versus Inspector General of Police, Islamabad & others (2001 SCMR 8) and Inayatullah and others versus Director General & others (2006 SCMR 535).
7. For the foregoing reasons, the appeal filed by the appellant was not competent/maintainable in view of the dicta laid down by the august Supreme Court of Pakistan in the above cited judgments as the appellant had not filed the departmental representation within the stipulated period, therefore, the appeal in hand being incompetent is hereby dismissed with no order as to costs.
8. In the connected service appeal No.28 of 2010, the appellant has impugned the Notification dated 30.06.2010, whereby respondents No.2 to 7 were promoted to the posts of Sessions Judges/Zilla Qazis BPS-21, on the ground that he belongs to the batch of AD&SJs of the year 2001, while appointment order was issued in the year 2005 and he is senior in rank from respondents 2 to 7. It is pertinent to observe that in the seniority list of AD&SJs issued vide Notification dated 14.11.2009 the names of the respondents No. 2 to 7 have been shown at serial No.4 to 9 and 11 respectively, while the appellant has figured at serial No.79. The appellant has challenged the seniority list dated 14.11.2009 through service appeal No.14 of 2010, which has been dismissed in the preceding para, therefore, in the circumstances, this appeal being meritless is hereby dismissed.
So far as the other connected service appeal No.93 of 2011 is concerned, the appellant has challenged the Notification/order dated 20.05.2011 by way of which respondents No.2 to 4 have been promoted from the post of the ADJs BPS-20 to the posts of DJs BPS-21. This appeal is also dependent upon service appeal No.14 of 2010, wherein he has questioned the seniority of respondents No. 2 to 11, but the same has been dismissed in the preceding paras, therefore, service appeal No.93 of 2010 is also dismissed as having become infructuous.
Announced: Sd/-
Dated 08.12.2012 Waqar Ahmad Seth.J
Sd/-
Rooh ul Amin Khan.J
