2011 PLP (C (PLC(CS))

MUHAMMAD HASHIM KHAN KAKAR, (CHAIRMAN).

This appeal under section 4 of the Balochistan Service Tribunals Act, 1974 has been filed by the appellant with the following prayer: (i) Declare the respondents' act of striking off appellant's name from the seniority list of Zhob Division and omission to include his name in the seniority list of Sibi Division or any other list, as illegal and without lawful authority. (ii) Declare that appellant is entitled to pro forma promotion and ante-dated seniority from the date he was eligible for promotion as Naib-Tehsildar but ignored due to administrative fault/negligence and for no fault of appellant. (iii) Declare that continuous posting of appellant as Naib-Tehsildar on acting/current charge basis for indefinite period, when he was eligible to be promoted on regular basis, is illegal and whimsical and he is entitled to be confirmed as Naib-Tehsildar from the date he was given charge of said post. (iv) Direct the official respondents to process the cases of appellant for grant of pro forma promotion, with all back/consequential benefits, on merits and strictly in accordance with law. (v) Direct the official respondents to prepare and circulate a seniority list of Naib-Tehsildars strictly in accordance with law. (vi) Grant any other relief which may be deemed just and appropriate in the circumstances of the case; and (vii) Award costs under section 35 and compensatory costs under 35-A, C.P.C., 1908, as amended by the Civil Law Reforms Act, 1994 (PLD 1995 Central Statutes 1)."

2. It is the case of appellant that after passing the departmental examination he was appointed as Patwari (B-5) in the year 1982 at the strength of Quetta Zhob Division and posted at Loralai District. On 30-11-1986 Quetta/Zhob Division was bifurcated and a new division namely Zhob Division was formed and appellant remained posted at Loralai District at the strength of Zhob Division. In the year 1993, he was promoted as Kanungo (B-9) by commission Zhob Division and his services were placed at the disposal of Deputy Commissioner Loralai. The Deputy Commissioner Loralai vide order dated 26-6-1993 posted the appellant at Sanjavi (Sub-Tehsil Loralai) Zhob Division. Tehsil Sanjavi of Loralai District was merged with Ziarat District of Sibi Division on 1-1-2001 and all the employees of Sanjavi Tehsil including appellant continued to serve in Revenue Department of said Tehsil Sanjavi. The name of appellant was at S.No.11 in the tentative seniority list of Kanungos in Zhob Division as it stood on 1-1-2001. The name of appellant was struck off from the seniority list of Zhob Division, as a consequence whereof his name was to be included in the seniority list of Sibi Division but it was not done due to sheer negligence of department. The appellant approached the department on a number of occasions but all in vain. Although the appellant had been holding the post of Naib-Tehsildar since 2003 but is not confirmed against any post in spite of the fact during this period his juniors were promoted on regular basis as Naib-Tehsildars. The appellant being aggrieved made departmental representation dated 19-8-2009 which has not been decided so far. Lastly while finding no other way out, he approached this Tribunal by filing the instant appeal.

3. On the other hand the respondents contested the appeal on legal and factual aspects by filing their written reply.

4. We have heard the learned counsel for the parties and also perused the record with their valuable assistance.

5. The record reveals that the appellant is holding the post of Naib-Tehsildar on acting/current charge basis since 2003 and could not promoted due to non-mentioning his name in the seniority list of Qanungos of Zhob or Sibi Division. The record also indicates that the name of appellant was struck off from the seniority list of Zhob Division after merger of Tehsil Sanjavi of Loralai District Zhob Division with Ziarat District of Sibi Division on 1-1-2001. In such peculiar circumstance of the case, the authority i.e. Board of Revenue was under statutory obligation to include appellant's name in the seniority list of Sibi Division specially after striking off his name from the seniority lists of Qanungos of Zhob Division as required under section 8 of the Balochistan Civil Servants Act 1974. It is very strange and astonishing that the appellant is regular employee of the Board of Revenue but his name is missing in both the seniority lists of Zhob and Sibi Division. The appellant was not only deprived of his due promotion but has also been made, shuttle cock between different authorities and driven from pillar to post for no fault of his own since 1-1-2001.

6. Admittedly in view of the policy for grant of pro forma promotion vide Notification No.SO 111-6(47) (R) S&GAD-75 dated' 17-5-1981 and Fundamental Rule-17, the appellant is entitle for pro forma promotion from the date when his juniors, were promoted as Naib-Tehsildar. It would be appropriate to reproduce Fundamental Rule-17 hereinbelow which speaks as under: "Provided that the appointing authority may, if satisfied that a civil servant who was entitled to be promoted from a particular date was, for no fault of his own, wrongfully prevented from rendering service to the Federation in the higher post, direct that such civil servant shall be paid the arrears of pay and allowances of such higher post through pro forma promotion or upgradation arising from the ante-dated fixation of his seniority."

7. We are of considered view that the authority for the proper administration of service under section 8 of Balochistan Civil Servants t Act, 1974 is required to cause/prepare a seniority list. We are also of the view that the appellant has been deprived of his due promotion due to sheer negligence on the part of department.

8. For the discussion made hereinabove, the appeal is allowed. The respondents Nos.1 and 2 are hereby directed to include the appellant's name in the seniority list of Sibi or Zhob Division and regularize the services of appellant as Naib-Tehsildar from the date when his juniors were promoted as Naib-Tehsildar. There shall be no order as to costs. H.B.T./10/BST Appeal allowed.