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Case No. 748/1136 of 1984, decided on 18th July, 1985.

(a) Provisional Constitution Order (1 d 1981)‑----

‑‑‑Art. 15(2)‑‑Martial Law Instructions (M.L.A. Zone A's) No.21‑‑Punjab Service Tribunal Act (IX of 1974), S.4‑‑Reversion‑‑Appeal‑‑Order of reversion passed on recommendation of Review Committee constituted under M.L.I. No.21‑‑Jurisdiction of Service Tribunal‑‑Decision of Review Committee, was based on wrong presumption as to status of promotee civil servant‑‑Immunity and valid clause as contained in Art.15(2) of Provisional Constitution Order, 1981, held, did not extend to Acts‑of statutory functionaries which were beyond scope of their power.

P L D 1985 Kar. 319; P L D 1982 Leh. 264; P L D 1980 S C 22; P L D 1974 Lah. 545; P L D 1984 S C 409 and 1983 C L C 918 rd.

(b) Limitation Act (IX of 1908)‑

‑‑Arts. 5 a 14‑‑Civil servant seeking remedy before wrong forum‑ Limitation‑‑Civil servant, held, could not be considered at fault for seeking remedy before wrong forum, when everybody around him including Government was under same impression‑‑Service Tribunal condoned delay which had occurred due to choosing of wrong forum by invoking Arts. 14 & 5 of Limitation Act, 1908.

P L D 1974 S C 22; P L D 1960 (W.P.) Lah. 801 and P L D 1976 Kar. 252 rel.

(e) Civil service‑‑---

‑‑‑ Civil servant passing Departmental Professional Examination in 1964‑ Result held back by Government till 1976 in pursuance of enquiry‑ Enquiry terminating in favour of civil servant‑‑Government promoting such civil servant from back date‑‑Subsequent reversion of such civil servant by Government, held, was not justified‑‑Law and equities weighed heavily in favour of civil servant‑‑Order of reversion set aside and Government was directed to promote civil servant from relevant back date.

Ch. Muhammad Saeed for Appellant.

A.G. Humayun, District Attorney for Respondent.

‑‑Ghulam Murtaza Rizvi, Sub‑Engineer, Sialkot Drainage Sub‑Division, Narowal, has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974, in which he has impleaded the Government of the Punjab through Secretary, Irrigation and Power Department, Lahore, as respondent.

2. By virtue of this appeal he has prayed that the impugned orders, dated 31‑8‑1977, be set aside and appellant's, promotion and status be restored as officiating S.D.O. w.e.f .12‑12‑1964.

3. Brief facts of the case are as under:‑

The appellant joined service as Apprentice Overseer in the Irrigation Department on 4‑10‑1950 and was inducted as regular Overseer w.e.f. 4‑1‑1951. On the basis of his service record he was confirmed as Overseer w.e.f. 1‑3‑1953. In 1963, a Departmental Professional Examination was held in May, 1963, in which the appellant also appeared, which had been prescribed in the Service Rules for the purpose of promotion of Overseer/Sub‑Engineer as officiating Sub‑Divisional Officer. Although the appellant cleared the Department Professional Examination yet announcement of the result was withheld by the Department and it remained withheld for about 14 years from 1963 to 1976, apparently on the pretext that the appellant had indulged in unfair means. This contention was finally resolved in 1976 in which it was held that the appellant was absolutely innocent. After the result of the examination in 1976, the Government was pleased to decide that appellant's promotion which had been held on this account, should be restored from the due date. The Chief Engineer Irrigation was directed by Government that necessary orders be issued under intimation to Government. The Section Officer (VE) for Secretary to Government of the Punjab addressed a letter to the Chief Engineer, Irrigation, Lahore as under:‑

"On re‑consideration, it has been decided that on the basis of the findings of the last enquiry conducted by Ch. Shah Muhammad (then XEN) Mr. Ghulam Murtaza, Sub‑Engineer, having been found not guilty, should be declared to have qualified the departmental examination. His promotion withheld on this account, should be restored with effect from the date his next junior superseded him. Necessary orders may, therefore, be issued immediately, under intimation to this Department."

Acting on the said direction of the Secretary to Government of the Punjab, Irrigation Department, so mentioned above, the Chief Engineer Irrigation, Lahore, vide Annexure 'C', wrote to the Secretary Irrigation and Power Department, Lahore, by his letter, dated 26‑6‑1976, in which he strongly recommended the case of the appellant and justified his promotion from the date when his juniors were so promoted i.e.‑12‑3‑1964. Relevant para. of the aforesaid letter is as under:‑

"Had the promotion case been taken in March, 1964, Mr. Rizvi could have been promoted as Officiating S.D.O. in preference to the following officiating S. D.0's. who become eligible for promotion after March, 1964: The persons so promoted were as under:‑

Name Date of Passing Date of promotion

DPF DRE

(1) S. Hussain Ali 3/64 6/64 12‑12‑1964

(2) Ch. Rashid Ahmad 7/64 8/61 11‑12‑1964

(3) Malik H. Hussain 7/64 8/61 11‑12‑1964 (Retired)

(4) Mr. Shaukat Ali 7/64 4/62 12‑12‑1964 (in BWP Region)

As this power vested with Government the said Chief Engineer Irrigation asked the Government to do justice in the case of the appellant as mentioned above. Vide Annexure D. Mr. S.M. Ayub, Secretary Irrigation and Power Department, passed an order on behalf of Governor in which although the appellant was promoted as Officiating S.D. 0. on pro forma basis as a provisional and purely temporary measures, subject to final clearance from the Finance Department. In the endorsement, it was mentioned that in the meantime the expenditure involved on account of payment of arrears to Mr. Ghulam Murtaza Shah Rizvi since 12‑12‑1964, be worked out. However, M.L.I.‑21 came into operation in August 8, 1977. The case of the appellant was put up before the Review Committee presuming that the appellant was not promoted on regular basis but was an ad hoc promotee. The Review Committee acting on the said presumption reverted the appellant once again to the post of Sub‑Engineer. This decision was implemented vide notification, dated 31‑8‑1977. Aggrieved against his demotion the appellant went before the civil Court while pressing his case otherwise he asked for temporary injunction, which was not granted. He then went before the District Judge, who accepted the appeal and granted interim injunction and asked the Civil Judge to proceed afresh. The Government of the Punjab in the Irrigation Department file a Revision Petition before the high Court Lahore in which they challenge the said order of the District Judge. The appellant realising that this real remedy lay before the Punjab Service Tribunal, which was a competent forum under Article 212 of the Constitution, he has now filed this appeal before this Tribunal while F. A .O. is still pending before the Lahore High Court.

4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the entire record of this case carefully with their assistance. 5. Learned counsel for the appellant has submitted that it has been established on the record that the appellant was due for promotion since he had cleared the Departmental Professional Examination. According to the learned counsel for the appellant if the result of the Department Professional Examination would have been announced so referred to above in this case the appellant could have been promoted right from 1964, earlier than his juniors who were so promoted after clearing the said examination. It has been vehemently argued that the conduct of the respondent Government who withheld the result and indulged in protracted and uncalled for inquiries which spread over a period of 16 years and ultimately came with a finding that the appellant had not indulged in any unfair means, was unjustified. in this situation it has been forcefully argued that to punish the appellant for the fault of Government would be both unjust as well as against all cannons of justice and fair-play. Learned counsel for the appellant has referred to a number of documents which are very relevant in this case i.e. the order of Secretary Irrigation in the name of Chief Engineer to promote the appellant with all back benefits which was actually took place so referred to above in the earlier part of our judgment. He has made a grievance that the case of the appellant was wrongly placed before the Review Committee constituted under M.L.I.‑21 as the appellant was never an ad hoc promotee but was promoted on regular basis by the competent authority. It has been further argued that effect of the decision which was made absolutely on wrong premises in no way should stand in the way of the appellant's rights which accrued in his favour since 1964.

6. With regard to the delay which has so occurred as the appeal so filed before us has been presented in the year 1984 although the grievance dates back from 1964, learned counsel for the appellant has submitted that the appellant went before the civil Court on the advice of Senior Counsel who is practising in the Lahore High Court as well as Supreme Court of Pakistan and the jurisdiction was assumed by the District Judge, a fact which goes in favour of the appellant.' A certificate from the Senior Counsel is placed on record. It has been further pointed out that respondent Government could not be absolved of this misunderstanding because they also went before the High Court to challenge the order of learned District Judge and did not advert to the Punjab Service Tribunal, which in fact is the right forum for this purpose. According to the learned counsel for the appellant the Government which has all the facilities of competent legal advice of Law Department, chose to agitate against the order of District Judge before the High Court could not come forward with an argument that the appellant should not have wasted time before a wrong forum looses all force. It has been prayed that the delay thus occurred in this case by agitating grievance before a wrong forum be waived/ condoned.

7. On the other hand learned' District Attorney has adopted the comments of the Department and has submitted that the appellant had no business to go before the civil Court as the Service Tribunal was very much in existence at that time. He has further submitted that the reversion so made by the Review Committee constituted under M.L.I. 21 cannot be challenged before this Tribunal as the same would be an order from the M.L.A. which stands protected under Article 15 of the P.C.O., 1981.

8. With regard to the merits of the case it‑has been submitted that although the fault lies with the Government in not announcing the result of the enquiry, which was being conducted against the appellant for using unfair means, yet the fact remains that as soon as the result was announced the appellant was so promoted.

9. We have given our anxious thought to the arguments advanced by the parties and first of all will advert to the objection of learner District Attorney that this Tribunal would have no jurisdiction to interfere with the decision of the Review Committee so constituted under M.L.I. 21. We have examined this point and find that the immunity and valid clause as contained in Article 15(2) of the P.C.O. 1981, does not extend to the acts of statutory functionaries which are beyond the scope of their powers. Reliance is placed on the following rulings: ‑‑

P L D 1985 Kar. 319, P L D 1982 Lah. 264, P L D 1980 S C 22, P L D 1974 Lah. 545, P L D 1984 S C 409 and 1983 C L C 918. In this manner we have no hesitation to repel the argument of the learned District Attorney that this Tribunal has no jurisdiction to interfere with the decision of the Review Committee at which they arrived due to wrong presumption/ wrong facts, as it is fully established on record, without being controverted, that he was a regular promotee and was never ad hoc promotee in any manner.

10. With regard to the argument of the learned District Attorney that the appellant should not have wasted his time before a wrong forum and the inordinate delay which has occurred in this case should not be condoned, we are not impressed with the argument of the learned District Attorney in the peculiar circumstances of this case. The fact of the matter is that the appellant went before the civil Court on the advice of Senior Counsel of the High Court/Supreme Court and this has been so certified. It is also an admitted fact that the civil Court also assumed the jurisdiction which was further assumed by the District Judge and even the Government itself was under the impression, that this matter is to be settled by a civil Court, therefore, it filed (first E regular appeal) before the Lahore High Court against the order of District Judge, which is still un-disposed of. All these facts will make ample clear that the appellant cannot be considered at fault for seeking remedy before a wrong forum, when everybody around him including the Government was under the same impression. Reliance is placed on P L D 1974 S C 22, P L D 1960 (W.P.) Lah. 801 and P L D 1976 Kar. 252. In view of the law so laid down we condone the delay, which has so occurred in this case by invoking Article 14 read with section 5 of the Limitation Act.

11. With regard to the merits of the case, 'it is crystal clear that the appellant was fully qualified and promoted as S.D.0, on regular basis, after he had cleared the examination in 1964. Learned counsel for the appellant has given particular names of his colleagues who were junior to him and promoted in 1964 although they had been declared successful in the Departmental Professional Examination subsequently. It is fact un-controverted that the result of the enquiry went in favour of the appellant and it was declared that he would be deemed to have cleared the Departmental Professional Examination in 1964, the learned District Attorney was unable to deny that after the appellant was so declared successful the Government was convinced of its own fault. The Chief Engineer, Irrigation was directed by the Secretary Irrigation to promote the appellant from 1964, with all back benefits, as his case was a case of hardship, which was imposed upon him by the red tapism in the Department. It is also not denied that the appellant was so promoted and pro forma promotion was bestowed upon him. The order relating to this promotion does mention that this is provisional and temporary because the case had yet to be cleared by the Finance Department. This would clearly mean that the Government had decided to promote him from the back date and only for the financial implications which had to be sorted out, these two words' provisional and temporary' were used as a matter of abundant caution to await the decision of Finance Department in this matter. With all these un-controverted facts on record, we are fully satisfied and convinced that the case of the appellant is case of hardship, which was inflicted upon him and denied his rights and promotion, which accrued to him in 1964. It reflects on the conduct of the respondent Government the way they handled the enquiry of unfair means so conducted against the appellant which they kept pending for full 16 long years and thus deprived the appellant of his valuable rights of promotion for such a long period. Not only the law is on the side of the appellant as discussed above but even the equities weigh very heavily in his favour. Sixteen long years of his life have been spent in agony, clamouring for his rights, which stood denied to him due to apathy, lethargy and callousness of the Department of withholding the result of enquiry in his favour for full 16 long years.

12. In view of the above we are of the considered opinion that the impugned order by which the appellant has been so reverted to the rank of Sub‑Engineer is liable to be set aside, we therefore, proceed to set aside the same.

13. The result is we accept the appeal, set aside the impugned order, dated 31‑8‑1977, and direct the respondent Government to promote the appellant as S.D.O. from the date his juniors were so promoted in 1964. There will be no order as to costs.

A.A. Appeal accepted.

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