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Miscellaneous Petition No. 146 of 1984 in Appeal No. 267(L) of 1975, decided on 19th October, 1986.

‑‑‑S. 4‑‑Civil Servants (Appointment, Promotion and Transfer) Rules,1973, R.8‑B‑‑Seniority‑‑Dismissed civil servant re‑instated by order of Tribunal‑‑Persons junior to civil servant promoted during period of his dismissal‑‑Civil servant promoted after his re‑instatement but placed junior to such persons‑‑Batch mates of civil servant having been promoted with same length of service from earlier date, case of civil servant, held, could not be distinguished‑‑Promotion of juniors of civil servant on regular basis without requisite length of service being in violation of R.8‑B of 1973 Rules which required such promotion to be on acting charge basis, promotion of civil servant though subsequent would place his junior batchmates automatically junior to him in promoted cadre.

‑‑‑S. 4‑‑Establishment Code, 1983 Edn., p. 193, General principles of seniority, para. B‑‑Seniority‑‑Civil servant, eligible for promotion‑ Inadvertent omission‑‑Effect‑‑Though para. B of General principles of Seniority of Establishment Code, related to inadvertent omission of civil servant whose case could not be referred for promotion, yet such principles, held, could be extended to case of a person who for no fault of his own, was not considered for promotion on specified date‑ Civil servant entitled to be promoted and given seniority from date when his batchmates had been promoted.

‑‑‑S. 4‑‑Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R.8‑B‑‑Seniority‑‑Promotion‑‑Requirement‑‑Civil servant once promoted, held was to be dealt with according to Rules applicable for such promotion /seniority.

Syed Jamshed Ali for Appellant.

Hafiz Tariq Naseer for the State.

Date of hearing: 14th October, 1986.

‑‑The appellant -petitioner, Farooq Ahmad Malik, while serving as Income‑tax Officer in B‑18, was dismissed from service but on appeal, he was re‑instated by order of this Tribunal with all consequential benefits. The order was passed in September, 1978, but he was actually taken back as Income‑tax Officer, B‑18, with effect from 2‑6‑1979.

2. With effect from 3‑6‑1978, the cases of batchmates of the appellant were examined by the Central Selection Board and as a result of its recommendations, they were promoted to B‑19 with effect from 3‑6‑1978 notwithstanding the fact that they had not completed the requisite number of years of service, as provided in the rules for promotion to B‑19. The appellant‑petitioner was promoted with effect from 3‑6‑1980 and seniority was also given to him from that date. The effect was that notwithstanding the quashment of the order of his dismissal by the Tribunal, he became junior to his batchmates in B‑19. In this petition, the prayer sought is that the petitioner should be deemed to have been promoted to B‑19 for the purpose of seniority with effect from the date his next junior was promoted, i.e. 3‑6‑1978. It was pointed out that two persons namely Jamil Bhutto and Abdul Ghafoor Junejo, who too had been re‑instated into service by the Tribunal, had been approved for promotion retrospectively, but in case of the appellant‑petitioner, different decision has been taken.

3. The question involved here is whether on promotion to B‑19, the appellant‑petitioner shall reckon his seniority or whether he would count his seniority from the date of actual promotion notwithstanding the fact that persons junior to him had been promoted much earlier. The record of the case has been placed before us. It appears that when the appellant‑petitioner was cleared for promotion, he too like his batchmates had not completed the requisite length of service and consequently the Selection Board cleared him for promotion subject to waiver of condition of length of service. Needless to say, that the batchmates of the appellant‑petitioner having been promoted with the same length of service from an earlier date, the case of the appellant- petitioner could not be distinguished. In fact, the appointment of his A juniors on regular basis was in violation of Rule 8‑B of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 which provides that when a civil servant otherwise eligible for promotion does not possess the specified length of service, his appointment shall be on acting charge basis. Had this been done, then on promotion of the appellant‑petitioner, his junior batchmates would have stood automatically junior to him in B‑19. In any case, we are not to reopen the case of persons junior to the appellant‑petitioner, but would observe that there were no good reasons for making a distinction between the appellant- petitioner and his batchmates in relation to the length of service. The only question to be determined was whether the appellant‑petitioner would have been or would not have been promoted if he had not been dismissed from service. Such an eventuality is covered by para. B of the General Principles of Seniority, printed at page 153 of 1983 edition of ESTACODE, which reads as follows:‑

"(a) an officer eligible for promotion who is inadvertently omitted from consideration in the original reference and is superseded, when he is subsequently considered and approved for promotion, he will take his seniority with the original batch."

Though the rule relates to inadvertent omission nevertheless, it can be extended to the case of a person who for no fault of his, was not considered for promotion. In the present case, the appellant‑petitioner was not considered for promotion in 1978, because he was out of service on account of order of dismissal, which had been subsequently set aside. He should have, therefore, been given the seniority from the date when his batchmates were promoted.

4. The learned counsel for State has argued that the question of ante‑dating the promotion of the appellant‑petitioner had come up before the competent authority, but it had rejected the same. No doubt, this is so, but then the fact cannot be denied that the appellant‑petitioner having once been promoted should have been dealt with according to the rules applicable for such an eventuality. The contention of the learned counsel for the respondents is that in his report for the year 1974, the Reporting Officer had remarked that he was not fit for promotion, but was likely to become fit in due course. These remarks were recorded when the appellant was under suspension as a result of charges against him, and we do not think this report can be considered as basis for denying him promotion from a date from which he was entitled to be promoted with his batchmates. Needless to say that all the subsequent reports on re‑instatement speak highly of the officer and he had been graded as 'good' or 'very good'.

5. In view of the above facts, therefore, we accept this petition and direct that the date of promotion of the appellant‑petitioner for the purpose of seniority should be ante‑dated, so as to place him senior to the persons who were next junior to him in B‑18.

6. Order accordingly.

A. A./348/S.T.

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