2001 PLP (C (PLC(CS))

MUHAMAMD AYUB KHAN (MEMBER).

We intend to dispose of both the aforesaid appeals by this single judgment recorded in Appeal No.749(R) of 1997 having identical legal and factual points.

2. Facts of the case leading to the institution of Appeal No.749(R) of 1997 are that the appellant, being a senior most as per the Seniority List, was maliciously and mischievously ignored from promotion to B-16 and thus, thereby by manipulation Mahmood Ahmed appellant in Appeal No.336(R) of 1998 was got pushed forward and promoted as Superintendent (B-16) with immediate effect by the impugned order, dated 30-5-1997. Feeling aggrieved, he preferred a departmental appeal to the competent Authority on 20-6-1997 which when not responded within the stipulated period of 90 days, he submitted the service appeal in this Tribunal on 11-10-1997 which is well within time and order.

3. The facts agitated in the appeal are that at the relevant time he was working as Assistant in the Office of the Divisional Engineer, Telegraphs. Murree under the Pakistan Telecommunication Company Limited previously known as the Telephone and Telegraph Department. The appellant was originally appointed in T&T Department as Clerk on 10-8-1968 promoted as Assistant on 2-12-1989 as against which Respondent No.6 Mahmood Ahmed, was appointed as Clerk on 28-5-1974 and promoted as Assistant on 20-5-1991 who appears to be junior to the appellant on the point of his first entry into service as well as promotions Assistant: The Seniority List placed on file also indicates the appellant senior to Mahmood Ahmed, Respondent No-6. Earlier he was not figuring in the Seniority List, therefore, by order, dated 26-2-1997 he was placed at Serial No.1 of the, Seniority List vide Annexure-'B placed on file which indicates his service particulars as under:

(1) Name Sadiq Mashi (2) Father s Name Labh Mashi (3) Date of Birth 4-5-1941 (4) Date of entry in Department 10-8-1968 (5) Cadre T. S. C. (6) Date of Pro-motion as Assistant 2-12-1989 (7) Division DE Phones, Murree There is no cavil about his service particulars and seniority.

4. The appellant when restored to his original seniority applied for promotion as Superintendent (B-16) being senior most official, vide his application dated 29-5-1997 (Annexure-'C') and this application instead of proving a boon in disguise proved, his downfall in the sense that its immediate result motivated Respondent No.6, Mahmood Ahmed, who reportedly entered into connivance with the Assistant General Manager, Rawalpindi Telecommunication Region, Rawalpindi, manipulated and generated issuance of a false and baseless confidential letter, dated 28-5-1997 wherein the clarifications regarding the decision of the charge-sheet served upon the appellant, Sadiq Masih, vide letter, dated 25-9-1988 and recorded in his ACR, neither available nor recorded in the Service Book, were sought for and simultaneously the D.E., Murree, who had recorded his ACR with effect from 16-4-1993, was directed to look into the matter and to submit his report and that the ACR of the appellant for the period from 1-1-1993 to 15-4-1993 was missing and was required to be recorded and similar other observations were made at Serial Nos.4 and 5 of the letter and at the end he was directed to check up and clarify the position immediately so as his promotion to B-16 in the Regional Office, Rawalpindi, could be examined. The Divisional Engineer, Phones, Murree in his letter, dated 28-5-1997 regarding the disciplinary action against the appellant reported that there was no disciplinary case pending against Sadiq Masih.

5. It will not be out of place to mention that the Divisional Engineer Telegraphs, Murree, in his letter, dated 18-6-1997 which is self-explanatory and explains all the aspects of the case in respect of the appellant, categorically intimated the General Manger, RTR, Rawalpindi, that none of the charges about which earlier he was informed are available against him as per record but instead of waiting for this reply Respondent No.6, Mahmood Ahmed, was already pushed through and by notification, dated 30-5-1997 he was promoted to B-16 dramatically and by letter, dated 4-6-1997 the appellant was assured that he being senior will be considered for promotion in light of his record in due course.

6. It was also reported by the Divisional Engineer Telegraphs, Murree, to the General Manager, Rawalpindi Telecommunication Regions, Rawalpindi, on 20-6-1997 that "there is no disciplinary case pending and no adverse entries in his ACRs during the last five years. The case is strongly recommended." During the pendency of the appeal a major development took place and according to which Respondent No.6, Mahmood Ahmed, promoted earlier to B-16 by the impugned notification, dated 30-5-1997, was de-notified and the same was cancelled vide corrigendum, dated 22-1-1998 signed by Bahadur Shah Qureshi, Deputy Chief Engineer (Carrer Planning) and by his another letter of the same date i.e., 22-1-1998 it has been stated that the case of Sadiq Masih, Assistant, for his, promotion as Superintendent (BPS-16) is under active consideration and that it will be finalized within a month but despite lapse of five months- the needful has yet to be done.

7. By order, dated 2-5-1998 the Tribunal observed as follows:-- "It appears to be a case of high-handedness in which explanation of Mr. Bahadur Shah Qureshi, Deputy Chief Engineer (Career Planning) and Mr. Mumtaz Hussain, Assistant General Manager is required. They shall be summoned for the next date. Adjourned to 16-6-1998. " On this date they did appear but failed to file their explanations. However, Mr. Bahadur Shah Qureshi, Deputy Chief Engineer (Career Planning) filed his explanation on the following date i.e. on 17-6-1998 whereas his companion Mumtaz Hussain, Assistant General Manager, failed to do so.

8. Connected Appeal No.336(R) of 1998 was filed by Mahmood Ahmed against the impugned order, vide which the notification, dated 30-5-1997 allowing him B-16 was cancelled by order, dated 22-1-1998. Para.2 of the impugned order, dated 30-5-1997 vide which the appellant, Mahmood Ahmed, and Respondent No.6 in Appeal No.749(R) of 1997, was allowed B-16 is indicative of guilty mind of the competent authority as well as Bahadur Shah, Deputy Chief Engineer (Career Planning). The later was asked on 17-6-1998 while filing his explanation as to why such para.2 was inserted in the said order and his reply was that it is a routine practice with the Organization. Para.2 reads:-- "This order is subject to revision on disclosure of facts which might have escaped notice inadvertently." All departmental authorities and Government functionaries are required to pass orders fairly and honestly strictly within the four corners of the law and the dictates of the rules and regulations specially in promotion cases, the decision should be once for all arid not transitory for avoiding mala practices and administrative inconvenience later on. Law requires in promotion cases, consultation of the Seniority List and all the record essential for promotion, inclusive of ACRs. -In the instant case the appellant, Sadiq Masih, was most senior one but a false drama was staged when he filed an application for his promotion to B-16 being senior most, engineered by the two officials mentioned in the order, dated 2-5-1998 actively assisted by Mahmood Ahmed.

9. We have carefully watched the conduct of both the appellants, Sadiq Masih and that of Respondent No.6, Mahmood Ahmed, on many occasions in the Tribunal as and when they appeared in connection with prosecution of their causes, the former conducted himself fairly good by not interfering in arguments or in any other proceedings whereas Mahmood Ahmed was too much impatient and eager now and then to interfere in the proceedings, including arguments of the appellant's counsel and his own counsel. His conduct remained far from satisfactory and on few occasions he was advised to have patience and not to interfere in arguments. One fails to understand as to what quality in him attracted the Administrations to push him up to the total neglect of the senior most Assistant who otherwise is well-behaved and his record is most satisfactory but due to adoption of unauthorised and illegal contrivances collusively he was shown as not fit for promotion and hence condemned without any legal justification. It is a case of sheer injustice and mal administration. The Competent Authorities and all incumbents assisting them are supposed to work honestly, diligently and totally impartially without taking side with one party or another. Departmental Authorities and their assistants also hold paternal position and are supposed to show much fairness towards all their subordinates in all matters, including promotion. Justice is not merely a job of Courts. It is simultaneously obligatory on the departmental functionaries to do complete justice within their own sphere of activities strictly in accordance with the rules and regulations concerned and any deviation therefrom without any legal justification thereby renders them to disciplinary action.

10. Pursuant to the aforesaid discussion we are constrained to accept the appeal of Sadiq Masih, set aside the impugned order and remand the matter to the Departmental Promotion Committee to consider him for promotion to B-16 with effect from the date Mahmood Ahmed, Respondent No.6, was considered and promoted against the post in B-16 and if found eligible and suitable, he may be promoted with all back benefits. Simultaneously we dismiss the appeal of Mahmood Ahmed in limine.

11. Before parting with the file we are constrained to remark that there was no legal justifications for promotion of Mahmood Ahmed to B-16 under the impugned order, dated 30-5-1997 and the pay drawn by him from the date of his actual assumption of charge in B-16 -to the date of his reversion therefrom by order, dated 22-1-1998, the entire overpaid amount thus, made to him shall be recovered from Mahmood Ahmed, Bahadur Shah Qureshi, Deputy Chief Engineer (Career Planning) and Mumtaz Hussain, Assistant General Manager, who demonstrated extreme high-handedness in the case in lending illegal assistance and support to Mahmood Ahmed in equal shares of 1/3rd each so as to avoid unnecessary burden on the Government exchequer. We also recommend these persons for proceedings against them under the Government Servants (Efficiency and Discipline) Rules, 1973 for violation of rules and routine procedure which falls under "misconduct". The proceedings of "misconduct" shall be started immediately against them and their result shall be conveyed to this Tribunal as early as possible but in no case later than three months.

12. We are also constrained to award Rs.15,000 (Rupees Fifteen thousand only) as special cost to the appellant, Sadiq Masih, under the amended section 35-A, C.P.C., 1908, which is the minimum he might have incurred in connection with preparation and processing the appeal.

13. Parties to be informed accordingly. H.B.T./264/ST/F Appeal accepted.