1990SCMR1417 (PLP)

SAAD SAOOD JAN, J.

These are two petitions for Special Leave to appeal from the judgments dated 25-10-83 and 9-4-85 of the Provincial Service Tribunal.

2. Muhammad Safdar Khan, respondent No. 1 in C.P. 844 and respondent No.2 in C.P. 817, was serving as Tehsildar. He was promoted to the Provincial Civil Service (Executive Branch) on 1-8-1978 against the quota reserved for the Revenue Officers. He made a representation to the Provincial Government that he was senior to many other Tehsildars who had been promoted to the Provincial Civil Service prior to him and that he should also be given pro forma promotion from the date when the Tehsildar immediately below him was inducted into the said Service. His claim to seniority and consequential pro forma promotion from a back date were rejected by the Provincial Government. He filed an appeal before the Provincial Service Tribunal. By an order dated 25-10-1983 the learned Tribunal accepted his claim to seniority and gave a direction to the Provincial Government to consider him for pro forma promotion with effect from 11-7-1973 when the Tehsildar immediately before him was appointed to the Provincial Civil Service. In pursuance of this direction, the Provincial Government considered his case for pro forma promotion with effect from 11-7-1973 and allowed it. As a result, he became senior to the petitioners in the two petitions who were inducted into the Provincial Civil Service through a competitive examination during the period falling between May and July, 1974. The petitioners in C.P. No. 844 seek leave to appeal from the order of the learned Tribunal. The petitioner in C.P. No. 817 challenged the order of the Provincial Government in declaring Muhammad Safdar Khan senior to him, before the Provincial Service Tribunal. This was dismissed by the learned Tribunal by an order dated 9-4-1985. He too seeks leave to appeal from the order of the learned Tribunal. "`

3. C.P. No. 844 is barred by 584 days. There is an application for condonation of the delay. In the application, it is stated that as the petitioners were not party to the appeal filed by Muhammad Safdar Khan, they were not aware of the order made by the learned Tribunal. As the contentions raised in the two petitions before us are the same and one of them is within time, it is unnecessary to make any order on the application for the condonation of the delay at this stage.

4. In support of these petitions it is stated that the direction given by the learned Tribunal for consideration of the case of Muhammad Safdar Khan for pro forma promotion was illegal as by operation of the bar contained in proviso (b) to section 4(1), the Punjab Service Tribunals Act, no appeal lay before the Tribunal from an order or decision of a departmental authority determining the fitness or otherwise of a person to be promoted to a higher grade. This argument is clearly fallacious. Muhammad Safdar Khan was not considered for promotion to the Provincial Civil Service when Tehsildars junior to him were promoted on the ground that he was not senior to them. It is not a case where on examination of his service record he was found to be unfit for promotion and was allowed to be superseded by his junior. After the Tribunal accepted his claim to seniority, the Tribunal was competent to give a direction that his case for promotion from a back date should be considered. This direction, essentially, flew from the order of the learned Tribunal in declaring him senior to those who were promoted prior to him. In the circumstances, the bar contained in the proviso upon which the petitioners rely was not applicable. In this context reference may also be made to section 8(1), the Punjab Civil Servants Act, which reads as follows:

"A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a post for the time being reserved under the rules for departmental promotion in any higher grade of the service or cadre to which he belongs." In view of the fact that his case was not considered when Tehsildars junior to him were being promoted there was a violation of the right conferred upon him by the above subsection and the Tribunal could give him relief in the matter.

5. It is then argued that the appeal of Muhammad Safdar Khan before the Tribunal was out of time and it should have been dismissed on that ground. By way of elaboration of this argument, it is stated that the cause of action accrued to him on 1-8-1.978 when he was first promoted to the Provincial Civil Service; as the appeal was preferred by him in 1982..it was hit by the bar of limitation. This contention is again without any substance: As already pointed out, the claim to promotion of Muhammad Safdar Khan from a back date was based on his assertion that he was senior to those who were promoted prior to him. Till his claim to seniority was accepted, he could not seek the relief of being considered for promotion. The learned Tribunal found that the first seniority list of Tehsildars was published in 1.971 but then it was merely a provisional one intended for the purpose of inviting objections. The petitioner made representations and it was only in 1982 that he was told that his representation had been rejected. Muhammad Safdar Khan filed his appeal within 30 days of the final rejection of his claim. In view of this position, his appeal before the Tribunal could not be said to be barred by limitation.

6. We find no merit in these petitions which are hereby dismissed. AA./K-130/S Petitions dismissed.