2002 PLP (C (PLC(CS))

2. A number of posts in BS.21 are reserved for promotion of Ex. PCS officers. The said posts are filled in on the basis of selection on merit from among the senior most officers of Ex. PCS (BS‑20).

3. Ch. Nazir Ahmad, Ex. PCS (BS‑21), Additional Chief Secretary to the Government of the Punjab retired in October; 1994 and thus vacancy in BS‑21 occurred.

4. To till in the said vacancy, the appellant being senior most Ex. PCS (BS‑20) officer was recommended for promotion by the Provincial Selection Board in its meeting held on 28‑12‑1994. The Chief Minister, Punjab/Competent Authority approved the case of the appellant for promotion to BS‑21 on 28‑1‑1995. The decision of the Competent Authority was conveyed to Service and General Administration Department on 5‑5‑1995. The appellant was promoted to BS‑21 vide Notification No.Sl.2‑2‑/95(A), dated 3‑11‑1995. The appellant assumed the charge of the post of Chairman, Chief Minister's Inspection Team on 7‑11‑1995.

5. The Accountant General, Punjab refused to grant annual increment to the appellant on 1‑12-1995 on the ground that the appellant has not completed six months in BS‑

21. The appellant retired on 1‑7‑1998 on attaining the age of superannuation.

6. The appellant preferred departmental representation on. 29‑2‑1996 requesting that revised notification for his promotion to BS‑21 from the date on which vacancy in BS‑21 occurred on the retirement or Ch. Nazir Ahmad, Ex. Additional Chief Secretary to Government of the Punjab, may be issued, After seeking advice from the Finance Department, Service & General Administration Department submitted summary to the Chief Minister, Punjab to promote the appellant to BS‑21 w.e.f 1‑6‑1995 so that the appellant could earn the increment in the year 1995. The Chief Minister, Punjab did not accede to the request of the appellant and the appellant was informed about it on 27‑11‑1998. Hence this appeal.

7. We have heard learned counsel for the appellant, District Attorney, Departmental Representative and have perused the record and objection to the memorandum of appeal submitted by the respondent.

8. Learned counsel for the appellant argued that the post in BS‑21 fell vacant in October, 1994. The appellant was recommended for promotion to BS‑21 by the Provincial Selection Board in its meeting held on 28‑12‑1994. Competent Authority/Chief Minister approved the promotion on 28‑1‑1995. The approval was received in S&GAD on 5‑5‑1995 but the case was unnecessarily delayed and notification for the promotion of the appellant to BS‑21 was issued on 3‑11‑1995. The appellant was deprived of one increment and recurring financial loss in pension and gratuity. The appellant made representation. It was recommended by S&GAD but the Chief Minister, Punjab turned down the request without assigning any reason.

9. Learned counsel for the appellant further argued that the appellant is entitled for promotion to BS‑21 from the date of approval by the competent Authority. He relied upon 1985 SCMR 1158. Learned counsel for the appellant further referred to judgment of Lahore High Court passed in Writ Petition No.4997 of 1994 wherein it was held that the Civil Servant becomes entitled to grant of BS‑21, the moment the Chief Minister passed the orders The notification was just follow up of the orders of the Chief Minister and the respondents were directed to issue the notification of grant of BS‑21 from the date of approval by the Chief Minister.

10. The respondents in their objections to the memorandum of appeal have raised preliminary objection that according to proviso of section 21, subsection (2) of the Punjab Civil Servants Act, 1974, no representation shall lie on matters relating to determination of fitness of a person to hold a particular post or to be promoted to a higher post and no appeal lies to this Service Tribunal according to section 4(1)(b) of Punjab Service Tribunals Act, 1974 against order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade‑

11. The respondents admitted that Ch. Nazir Ahmad, Retired, Ex. PCS (BS‑21) retired on 14‑10‑1994 but no specific vacancy occurred because no distribution of share between the components of the Punjab Service has yet been decided and the promotion to BS‑21 was to be made on selection‑cum -fitness basis.

12. The respondents have also admitted that the appellant was considered for promotion to BS‑21 by Provincial Selection Board in its meeting held on 28‑12‑1994. The appellant was actually promoted to BS‑21 on 3‑11‑1995. The advice of the Regulation Wing of S&GAD is not binding on the Competent Authority. The case of the appellant was submitted to the Chief Minister as a special case of hardship and the Competent Authority in exercising its discretion did not accede to the request. The appellant was promoted to BS‑21 on 3‑11‑1995. No quota has been specified in BS‑21 for Ex‑PCS (Executive Branch) Cadre and the appellant cannot be promoted with retrospective effect.

13. Learned District Attorney referred to the order dated 28‑4‑2001 of this Tribunal passed in Appeal No.2018 of 2000 and argued that the promotion takes effect from the date of notification and not from the date of its approval by the competent Authority.

14. The appellant was recommended for promotion to BS‑21 by the Provincial Selection Board in its meeting held on 28‑12‑1994 and the Chief Minister/Competent Authority approved it on 28‑1‑1995 and intimation was received in S&GAD on 5‑5‑1995 according to record produced by the Departmental Representative before this Tribunal. The preliminary objection taken by the respondents that no representation lies on the matters relating to determination of fitness of a person to hold a particular post and no appeal lies to this Tribunal against order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher, are immaterial and irrelevant because the appeal before this, Tribunal is not regarding fitness of the appellant for promotion but is, regarding date on which the promotion should take effect.

15. As discussed above the appellant was recommended for promotion by the Provincial Selection Board in its meeting held on 28‑12‑1994. The Chief Minister/Competent Authority approved the promotion on 28‑1‑1995 and intimation was received in S&GAD on 5‑5‑1995. The S&GAD issued the notification on 3‑11‑1995 i.e. with the delay of about 6 months: No justification has been given for this delay. This delay has to (sic) the appellant. We consider that 7 days were sufficient for the issuance of the notification and the notification should have been issued within one week. We, therefore, accept the appeal and direct the Respondent Department to issue notification for the promotion 'of the appellant to BS‑21 with effect from 13‑5‑1995 as a hardship case to save the appellant from the financial loss in pensionary benefits. H.B.T./80/PST Appeal accepted.