P L D 2003 Supreme Court 175 (PLP)

Dare of hearing: 10th September, 2002. QAZI MUHAMMAD FAROOQ, J.‑‑This appeal, by leave of the meant to impugn the judgment dated 8‑11‑1995 of the Federal Service Tribunal, hereinafter referred to as the Tribunal, whereby the respondent's promotion‑related appeal was allowed with the following observations:‑‑ "For the reasons discussed above we accept the appeal and direct the respondent‑Authority to consider the appellant for pro forma promotion on the basis of revised seniority in the cadre of Commercial Superintendent determined vide Order dated 29‑11‑1994 from a date his Junior Superintendent was promoted as Revenue Officer. We further hold that on promotion as Revenue Officer the appellant is entitled to get B‑17."

2. The relevant facts are that the respondent joined WAPDA as Control Clerk on 7‑7‑1967 and was promoted as Machine Operator (BPS‑11) on 1‑7‑1969. He was declared surplus and absorbed on transfer as an Assistant in another department on abolition of Data Processing Centre, Lahore in the year 1982. He filed an appeal in the Tribunal for determination of his seniority as Assistant which was allowed on 15‑6‑1993 and the case was remanded to the authority for examination of his case in the light of the observations made in the judgment. The judgment of the Tribunal was duly implemented and the respondent's seniority as Commercial Assistant was refluxed by order dated 5‑1‑1994. He was placed at Serial No.6‑A of the integrated seniority list of Commercial Assistants of Power Wing of WAPDA. As a corollary thereto, he was allowed pro forma promotion as Commercial Superintendent with effect from 12‑4‑1980 vide order dated 19‑5‑1994 and was placed at Serial No. 12‑A of the integrated seniority list of Commercial Superintendents. He was further promoted as Revenue Officer (BPS‑16) on 14‑2‑1995 with immediate effect. He made a representation against his promotion with immediate effect and solicited promotion from the date his junior Superintendent had been promoted as Revenue Officer, on the basis of his revised seniority fixed on 14‑2‑1995. He also requested for grant of BPS‑17 instead of BPS‑16 on promotion as Revenue Officer. Receiving no reply to his representation he filed an appeal in the Tribunal which was allowed, as stated above.

3. Leave was granted to consider the following points:‑‑ (1) Whether appeal of the respondent before the Tribunal was time‑ barred? (2) Whether the respondent had no vested right to claim promotion in a particular grade and from a particular date? (3) Whether the respondent was governed by the Pakistan Power Wing Commercial and Revenue Officers Rules, 1982 or some other Rules. (4) Whether the Note incorporated in column 6 of Appendix 1 of the Pakistan Power Wing Commercial and Revenue Officers Rules, 1982 barred the respondent from being allowed Grade 17 as Revenue Officer, if he did not fulfil the conditions laid down in the said note. (5) Whether promotion of the respondent as Revenue Officer should have been ordered with retrospective effect from 28‑12‑1986 in view of the seniority given to him by the order dated 29‑11‑1994?

4. It was contended by the learned counsel for the petitioner with vehemence that the respondent's appeal before the Tribunal was time‑barred as it was filed on 13‑7‑1995 whereas his seniority was finally fixed on 14‑2‑1995 and there was no provision in the West Pakistan Water and Power Development Authority Act, 1958 for filing a representation against the order of the Authority. Learned counsel for the respondent on the other hand contended that notwithstanding the absence of a provision in the West Pakistan Water and Power Development Authority Act, 1958 with regard to tiling of a representation the respondent being a civil servant for the purpose of section 4 of the Service Tribunals Act was well within his right to file a representation for redressal of his grievance. Reliance was placed on Gulbat Khan v. WAPDA (1992 SCMR 1789) and Muhammad Ibrahim Mangrio and, others v. Chairman, WAPDA and another (2001 SCMR 848). The contention raised by the learned counsel for the respondent has a definite edge over the submission made by the learned counsel for the petitioner in view of the principle enunciated in the case of Gulbat Khan and reiterated in the case of Muhammad Ibrahim Mangrio and others. Relevant portion of the observations made in the case of Gulbat Khan reads as under:‑‑ "We are inclined to hold that the above broader view is more apt to the object of above subsection (1‑B) of section 17 of the Act read with the definition of the expression 'service of Pakistan' given in Article 260 of the Constitution. The object of above subsection (1‑B) was to make the remedy of appeal under the Service Tribunals Act available to the employees of WAPDA and to achieve the above objective, by fiction of law, they were made civil servants. Since a civil servant cannot file an appeal without exhausting the remedy of a departmental appeal or review of representation provided under the Act of 1973 (i.e. Civil Servant Act) by virtue of proviso (a) to subsection (1) of section 4 of the Service Tribunals Act, the appellant being a civil servant by fiction of law could not have filed an appeal before the Tribunal without exhausting the remedy of representation under subsection (2) o section 22 of Act of 1973."

5. The appeal before the Tribunal having been filed on 13‑7‑1995 was within time as the period of limitation is to be reckoned from the date of filing of the representation i.e. 15‑3‑1995.

6. Lengthy arguments were addressed by the learned counsel for the parties on the question of existence or otherwise of a vested right to claim pro forma promotion. We need not discuss the same in view of the observations made in Walyat Ali Mir v. Pakistan International Airlines Corporation (1995 SCMR 650) that although the dictum that no employee has a vested right for promotion is correct yet where rules, regulations and policy have been framed for regulating appointment and promotion, any breach or deviation for mala fide reasons or due to arbitrary act of competent Authority would entitle an aggrieved person to challenge the same.

7. There is no need to pin‑point the rules which govern the case of the respondent inasmuch as in view of the settled law he is entitled to be promoted with effect from the date when his junior was promoted for reasons beyond his control. It has been rightly held by the Tribunal that the respondents is entitled to pro forma promotion as Revenue Officer on the basis of his revised seniority in the cadre of Commercial Superintendents from the date his junior Superintendent was promoted as Revenue Officer.

8. The next point for determination is the interpretation of the note incorporated in Column 6 of Appendix I of Pakistan Power Wing Commercial and Revenue Officers Rules, 1982 which reads as under:‑‑ "A promotee or transferee on selection will be allowed Grade‑17 but shall have to qualify the prescribed departmental examination within two consecutive chances, the examination is held, otherwise he will be reverted to his original grade/post." The above rule was interpreted by the Tribunal as under:‑‑ "We have thoroughly examined the rules on the subject and are of the view that Note of the Appendix does not conceive of promotion to B‑16 itself. Contrarily the Note contemplates granting of B‑17 to a promotee. Such grant cannot be deferred to two years or made contingent upon qualifying the test." The interpretation made by the Tribunal is unexceptionable. The dote makes it manifest that a promotee on selection will be allowed B‑17 and will be reverted to his original grade/post if he fails to qualify the prescribed departmental examination within two consecutive chances. For the foregoing reasons, the appeal is dismissed. M.B.A./M‑646/S Appeal dismissed.