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‑‑). 21‑Representation to next higher authority‑Cannot be enter tained when question involved was promotion‑Pro forma promo tion granted by competent authority‑Such order, held, not open to representation before next higher authority.

‑‑‑Locus poenitentiae‑Pro forma promotion‑Once given ‑Cannot betaken back‑Incumbent starting receiving attendant financial benefits and acquiring valuable right regarding date of promotion on basis of pro forma promotion order‑Withdrawal of such order after four months, held, unlawful‑Service Tribunal setting aside impugned order‑Punjab Service Tribunals Act (IX of 1974),

Syed Muhammad Sakluin v. Punjab Government N I. R 1981 Service 60 rel.

P L D 1968 Lah. 1194 ; P L D 1978 B J 81 ; P L D 1977 Lab. 1082 ; P L D ‑1969 S C 407 and N L R 1980 Service 482 ref.

‑‑Seniority‑‑List can be revised sun motu by competent authority.

..‑This is an appeal against the order, dated 20th June, 1979 made by the Home Secretary, Punjab, whereby the order issued by the Director Civil Defence, Punjab, on l5tb February, 1979 granting pro forma promotion to the appellant was set aside. The appellant has impleaded, amongst others, Syed Ahmad Mirza, on whose representation, the Home Secretary took the decision to set aside the appellant's promotion.

2. Brief facts of the case are that the appellant joined service as Junior Clerk on 1st March, 1953. In that capacity he was senior to respondent No. 4 and to Noor Ahmad Malik (since retired) and Ajmal Hussain. The appellant was promoted as Senior Clerk, with effect from 29th May, 1960 and as such continued to be senior to the other three who were promoted after him. However, Noor Ahmad Malik and respondent No. 4 were promoted as Assistants earlier than the appellant, apparently to the basis of being graduates for which category 50% seats were reserved under the Civil Defence Department (Ministerial Establishment) Recruit ment Rules, 1962. After the publication of the seniority list of the ministerial establishment of the department in which respondent No. 4 and Noor Ahmad Malik were shown senior to him, the appellant repre sented against those promotions. The respondent No. 2 vide order, dated 8th November, 1973 accepted the representation in principal to the extent of confirmation as senior clerk. He again represented on 30th June, 1976 seeking confirmation/promotion with effect from the date his juniors were confirmed/ promoted. This time respondent No. 2 vide letter, dated 15th October, 1976 maintained the appellant's seniority by virtue of length of service and continued officiation as senior clerk. In still another representation made on 15th December; 1976 the appellant, who had since been promoted as Assistant asked for pro forma promotion to the post of Assistant with arrears of pay, etc. In his order, dated 15th February, 1979 respondent No. 2 (Director Civil Defence) granted him pro forma promotion. This is the order, which was set aside by respondent No: 1.

3. The parties were heard. On behalf of the appellant, the learned counsel assailed the order of respondent No. 1 mainly on the ground that section 21 of Punjab Civil Servants Act place a bar on representations against, promotion and that, therefore, the representation of respondent No. 4 could not have been entertained by respondent No. 1. Precedents contained in P L D 1968 Lab. 1194, P L D 1978 B J 11 and P L D 1977 Lab. 1082 were, cited to show that orders passed by higher authorities against promotions. were set aside as being without specific power to entertain appeal./representation. Moreover,

In re : Syed Muhammad Saklain v. Punjab Government (

) was quoted to bring home the. point that unlike normal promotion which can be withdrawn before the Civil Servant takes charge of the higher post, the mere declaration of the ,date of pro forma promotion creates valuable rights in favour of the promotee and such an order, once made, cannot be withdrawn or altered to the detriment of those rights. In a decision of this Tribunal, announced on 7th July, 1979, the authority of the Supreme Court was cited through P L D 1969 S C 407. Another case from this Tribunal cited before us was N L R 1980 Service 482 wherein the appeal of Hafeez Ahmad Munawar against the order withdrawing his pro forma promotion was accepted. Another argument in support of the appellant's cause was that respondent No. 4 having been appointed Assistant in the 50'1a quota of direct recruitment bad no locus standi to challenge the appellant's promotion, and in the context case No. 55 of 1979 decided by this Tribunal on 25th May, 1980 was cited. In that case, it was laid down that the appellants being direct recruits could not question the promotion of the respondents promoted in their own quota, Also, the appellant's pro forma promotion was a consequential, benefit following the acceptance of the appellant's seniority over Noor Ahmad Malik and Amjad Hussain, which seniority had been duly accepted by respondent No. 2.

4. Rebutting these arguments the learned Government pleader stated on behalf of the respondents that the appellant had been con sidered for promotion a number of times but was not found fit. On 12th June, 1969 he had even failed an examination held to determine fitness for promotion. It was urged that respondent No. 2 could not accept the appellant's representation for pro forma promotion it being time‑barred, and this fact had been duly taken notice of by respondent No.1 in the impugned order. Respondent No. I had given personal hearing to both the appellant and respondent No. 4 before deciding the matter and it was wrong to state that his order lacked application of mind. The impugned order had been issued on the grounds that by obtaining pro forma promotion the appellant had superseded respondent No. 4 who was senior to the appellant according to the seniority list, dated 14th September, 1978. The learned counsel for respondent No. 4 added to these arguments by observing that respondent No. 2 by making the order of pro forma promotion, had ignored standing instructions in the matter issued by the Finance Department.

5. We shall not go into the details of the respective seniorities of the appellant, of respondent No. 4 and of others, because we feel that we must accept this appeal on the ground that pro forma promotion, once given, cannot be taken back. The authorities are too weighty to be brushed aside and particularly that of the Supreme Court has to be accorded the respect it merits. There is also considerable weight in the assertion made on behalf of the appellant that respondent No.4 could not entertain any appeal representation made against promotion, although it was made out on behalf of respondent No.4 that his appeal which resulted in the impugned order was not against the appellant's promo tion but only against the seniority accorded to him. However, since the impugned order itself says that respondent No. 4 has appealed against the appellant's pro forma promotion we have to take it as such and as a mere representation against seniority. From the date the appellant was granted pro forma promotion be started receiving the attendant financial benefits and thus in this respect as well as in respect of the date of promotion he acquired valuable rights which it would be unlawful to withdraw after more than four mouths, when the impugned order sought to do. As for the objection regarding limitation raised by the learned Home Secretary in his order, we will only say that by entertain ing and then accepting the appellant's representation for pro forma pro‑t motion the Director Civil Defence impliedly condoned whatever delay the representation suffered from. Even otherwise, as head of the department, he was required to revise the seniority lists from time to time and could even alter it suo motu to the appellant's advantage if he felt so advised.

6. In view of the above discussion, we accept this appeal and set aside the impugned order, dated 20th June, 1979. There will be no order regarding costs.

A. E. Appeal accepted.

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