1985 PLP (C (PLC(CS))

MUHAMMAD IRSHAD KHAN (MEMBER).‑It is the case of the appellant that in 1977 when he was an incumbent of a post of Experimental Officer in the Respondent‑Organization was wrongly omitted from consideration for promotion to the next higher post of Research Officer and persons junior to him in service, were promoted to various posts in the aforesaid higher grade while in terms of rule 2 of the Departmental Recruitment Rules, he was entitled to be considered for promotion from the post of Experimental Officer to that of Research Officer because the said rule 2 lays down the condition for such promotion as "B. Sc. or equivalent with five years' experience as Experimental Officer ; and he had then completed five years' service as Experimental Officer and also possessed minimum educational qualifications of B. Sc. He had, therefore, represented against his such supersession in violation of the Rules. He was, however, told by the departmental authorities that he did not belong to the "respective discipline" vis‑a‑vis the available posts, and was as such not eligible to be considered for promotion in regard to the posts in question. The appellant then filed a constitutional petition being No. 693 of 1978 in the Sind High Court which was disposed of in terms of a joint statement submitted by the appellant and the counsel for the Establishment Division, the Defence Production Division and the Defence Science and Technology Organization. In the aforesaid joint statement the departmental authorities had conceded that the appellant was entitled to be considered for promotion at the relevant time i.e. the 1st of June, 1977 irrespective of consideration of the `related discipline' and undertook that he would be considered for promotion to the grade of Research Officer on the aforesaid basis. The appellant was accordingly promoted as Research Officer with effect from the 12th of July, 1981, but his seniority was not properly fixed inasmuch as his seniority in the grade of Research Officer is being counted from the said date. Aggrieved thereby he represented departmentally urging that since he was eligible for promotion in 1977 in terms of rule 2 of the Departmental Recruitment Rules, but was not considered so wrongly, he shall count his seniority in the grade of Research Officer from the date on which the batch of Experimental Officer was promoted. The said representation was, however, withheld as per departmental communication, dated 4th September, 1982 received by the appellant on 25th September, 1982. The appellant then filed the present appeal claiming that in view of the aforesaid clear factual and legal position he is entitled to seniority in the grade of Research Officer with effect from the 26th of May, 1977 and fixation of his seniority from the 12th of July, 1981 is illegal and arbitrary.

2. It is quite clear that before filing the aforesaid constitutional petition by the appellant, he was not considered eligible for promotion by the departmental authorities on the ground that he did not belong to the respective discipline vis‑a‑vis the then available posts. However, in the joint statement, referred to above, this stand was changed and it was admitted on behalf of the departmental authorities that on the 1st of June, 1977 the appellant was entitled to be considered for promotion irrespective of consideration of the 'related discipline'. Indeed the concept of `related discipline' does not find a place in the Departmental Recruitment Rules, hence, such consideration was violative of the Rules it, therefore follows that the appellant was wrongly deprived of his right to be considered for promotion. The rule of seniority applicable in such a position is contained in General Principles of Seniority (Estacode pages 153 and 154 new edition) and may be with advantage reproduced below‑ "(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 ; (b) when in a single reference, the Selection Board/D. P. C. are asked to recommend more than one person and the recommendation of the Selection Board/D. P. C. is held up in respect of one or more such persons for want of complete papers etc., or for reasons beyond the control of the persons concerned, the recommendation of the Selection Board/D. P. C. in respect of such personas when made subsequently will be deemed to have been made on the date when the recommendation in respect of the original batch was made."

3. In our view, the case of the appellant is fully covered by the above Rules. It is manifestly clear that in 1977 he was eligible for promotion the post of Research officer but was wrongly omitted from such consideration. He is, therefore, entitled to take his seniority with the batch of Experimental Officers promoted to the post of Research Officers in June, 1977.

4. In view of the foregoing, the appeal is accepted and it is directed that the appellant's seniority in the post of Research Officer shall be fixed alongwith the batch promoted in June, 1977, with the same inter s seniority as he enjoyed in the lower post of Experimental Officer. He shall also be allowed all consequential benefits of such fixation of his seniority.

5. No order as to costs. A. E. Appeal accepted.