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Appeals Nos. 8 and 9 of 1984, decided on 28th August, 1984.

‑‑‑S. 4(b)‑‑Jurisdiction of Tribunal‑‑Notional promotion‑‑Fixation of pay as a result of pro forma promotion cannot precede stage of grant of notional promotion‑‑Matter not within jurisdiction of Tribunal‑‑Appellant retired under M.L.R. 114 and re‑instated under M.L.O. 23‑‑Seniority in Grade‑17 disputed prior to retirement and settled during retirement period‑‑Placed in Grade‑17 on re‑instatement and subsequently promoted to Grade‑18‑‑Claiming seniority over juniors since promoted earlier in Grade‑18 and also notional promotion and fixation of pay in Grade‑18 from date of promotion of junior‑‑Tribunal, in circumstances, held, cannot entertain claim for fixation of pay taking into consideration date from which appellant ought to have been promoted.

Aftab Ahmad Shaikh for Appellants.

Hasan Akbar, A.A.‑G. for Respondents.

‑‑ The appellants in their service appeals under section 4 of the Service Tribunals Act, 1973 claim notional promotion from the dates their juniors were promoted in Grade‑18 and fixation of their pay, taking into effect the date from which they ought to have been promoted on the basis of Finance Department circular and proviso to M.L.O. 23, para. 5.

The facts in brief are that the appellant Faqir Muhammad Dahar, joined P. C. S. Executive Branch in Grade‑17 on 27‑9‑1965. His seniority in the cadre in Grade‑17 remained under dispute. Meanwhile, the officers who were, in his opinion, junior to him, viz., M/s. Ali Dino Panhwar, Abdul Wahab Shaikh and Muhammad Hashim Memon received promotions to Grade‑18 on 13‑10‑1970, 8‑2‑1972 and 28‑2‑1972 respectively. While this dispute regarding seniority was pending appellant Faqir Muhammad Dahar was retired under M.L.R. 114. The case of the other appellant Baldev Mathrani is also more or less similar. He joined the West Pakistan Civil Service, Executive Branch as direct recruit on 5‑4‑1963. His seniority was also in dispute and meanwhile the above three officers were promoted to Grade‑18 and this appellant too was retired under M.L.R. 114 on 13‑3‑1972.

Later on the Government of Sind, S&GAD issued notification in respect of the revised seniority list dated 19‑2‑1977 under which appellant Faqir Muhammad Dahar was shown at serial No. 61, Mr. Baldev Mathrani at serial No. 56 and the three earlier promoted officers, mentioned above, at serial Nos. 72, 74 and 81 in Grade‑17. At the time this list was published both the appellants were out of service having been retired. They were re‑instated in service under M.L.O. 23 on 8th April, 1978 and 21st July, 1978. They were promoted to Grade‑18 on 28‑10‑1978 and 26‑11‑1978 respectively.

Both the appellants have, therefore, claimed pro forma promotion from 13‑10‑1970 when their junior Mr. Ali Dino Panhwar was promoted to Grade‑18 and re‑fixation of their pay on the basis of a circular issued by the Finance Department, Government of Sind, as No. FD (SR. II) 7‑9‑/71, dated 19‑2‑1983. The circular is to the effect that in certain special cases civil servants promoted to higher grade suffer in fixation of pay and draw lesser pay than their juniors who were promoted earlier. That in order to remove the hardship it had been decided that such civil servants on promotion, shall be entitled to the benefit of fixation of their pay with retrospective effect, i.e., the date their juniors were promoted, without claiming any arrears of pay for the period in question. Thus, the appellants, claim for national promotion or pro forma promotion from 13‑10‑1970 in Grade‑18 and refixation of their pay on that basis according to the general circular issued in 1983 in respect of persons granted pro forma promotions.

Mr. Hassan Akbar, A. A.‑G has raised two legal objections regarding this claim. Firstly, he has argued that the appellants were in Grade‑17 when they were retired and they were re‑instated under M.L.O. 23. That under para. 5 of M.L.O. 23 the competent authority, i.e., the C.M.L.A or the M.L.A. of the Zone specially authorised, could pass such order as he may deem appropriate in respect of the officers re‑instated and the re‑instatement did not entitle the officers to claim any damages, compensation or arrears of emoluments or other benefits for the period they remained out of service. Mr. Hasan Akbar has then pointed out that the order of the Establishment Division, Cabinet Secretariat, dated 27th July, 1978 issued under M.L.O. 23 was adopted by the Government of Sind in respect of re‑instated Government Servants. Under this order the re‑instated persons were allowed normal seniority in the grade in which they were serving at the time of retirement. In other words they would be placed in the same position in that grade which they would have enjoyed had there been no retirement, but on promotion to higher grade they were to be allowed pay and seniority in accordance with the normal rules from the date of their regular appointment to posts in the higher grade. In their case any automatic promotion on the principle of 'next below' rule had been specifically ruled out It has accordingly been argued that the appellants could not, therefore, claim seniority in Grade‑18 nor could they claim the benefit of the 'next below' rule. That their seniority was to be governed by the ordinary rules of seniority for that service, viz., the Sind Civil Servants (Probation. Confirmation and Seniority) Rules. 1975.

Under rule 13 of this Rule, a civil servant who is not promoted on his turn or is not considered for promotion for any reason other than his unfitness for promotion shall on subsequent promotion, subject to any order made by the competent authority in this behalf for the purpose of inter se seniority in the higher grade be deemed to have been promoted in the same batch as his juniors. It has accordingly been argued that even rule 13 is subject to any order of the competent authority. That the competent authority had adopted the circular of the Cabinet Secretariat governing the seniority of re‑instated officers promoted on higher grades.

It has been pointed out by Mr. Aftab Shaikh on behalf of the appellants that the benefit claimed for appellants relates back to the period prior to their retirement under M.L.R. 114. That had there been no dispute they would have received the promotion earlier than their juniors. That their case, therefore, does not fall under M.L.O. 23, but they are claiming the ordinary benefit of pro forma pro motion from the date their junior was promoted to Grade‑18. The appellants are thus in effect claiming the promotion to Grade‑18 from an earlier date than the date of their actual promotion, and they want the Service Tribunal to come to their rescue. Under section 4 of the Sind Service Tribunals Act, 1973, subsection (b) of the proviso "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". This Tribunal cannot, therefore, entertain any claim in respect of even notional promotion of any officer. The fixation of pay as a result of pro forma promotion cannot precede the stage of grant of such notional promotion. This Tribunal cannot, therefore, fix the pay of these officers, taking into consideration the date from which they ought to have been promoted.

As a result of the above discussion the prayer of the appellants in both the appeals cannot be allowed and the appeals are accordingly dismissed with no order as to costs.

A. E. Appeal dismissed.

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