1993 PLP (C (PLC(CS))

RANA RIFAT SAEED (MEMBER): ‑‑The appellant and the following private respondents (i) A.D. Ansari, Appellant. (ii) Ghulam Rasool, respondent No. 2. (iii) Muhammad Ashraf, respondent No. 3. . (iv) Muhammad Saeed, respondent No. 4. (v) Muhammad Azim, respondent No. 5. had been working as Stenographers in the Ministry of Commerce during 1971.Respondents 2 to 5 had come through the CPSC/FPSC, whereas the appellant had joined as ad hoc/direct appointee in the Department. The learned counsel had referred to a provisional seniority list of Stenographers issued on 21‑11‑1988, wherein the serial seniority numbers of the appellant and of the private respondents 2‑to 5 were as under: (a) Ahmad Din Ansari,‑appellant at Sl. 7 (b) Ghulam Rasool, Sl. 1 (c) M. Ashraf, respondent, Sl.2 (d) M. Saeed respondent, Sl.3 (e) M. Azim respondent, Sl.4 The appellant had made a representation challenging the seniority of these respondents, his point of view had been accepted by the respondents Department and a final seniority list had been issued on 30‑1‑1992. wherein the appellant had been shown senior to the private respondents as under: (i) Ahmad Din Ansari, appellant at Sl.3 (ii) Ghulam Rasool, respondent 2, Sl.5 (iii) M. Ashraf, respondent 3, Sl.12 (iv) M. Saeed, respondent 4, Sl.13 (v) M. Azim, respondent 5, Sl.14

3. The learned counsel for the appellant had argued that initially during 1971 the respondents 2 to 5 had been given Selection Grade as Stenographers and the appellant ignored. Since his final seniority had been settled in 1992 and he had been declared senior to the respondent, he was eligible and entitled for Selection Grade from 1971, when his juniors i.e. respondents 2 to 5 had been given. This point was not agreed to by the representative of the respondent Department and respondents 2 and 5 submitting that, if the appellant had been aggrieved during the year 1971, he should have made a representation during 1971‑

72. But since he had made no representation/appeal in 1971‑72, this point of relief as being prayed now during 1992‑1993 was hopelessly time barred and was not worth considering.

4. The learned counsel, therefore, confining himself to the seniority list of 1988 settled in 1992 had brought out at Bar that despite other points, the appellant being senior to the respondent had not been given Selection Grade B‑16 w.e.f. the same date as respondents 2 and 5 had availed it and he had also been ignored from SG/promotion as PS (B‑17) by the D.P.C. during 1990, when the junior respondents particularly respondents 2&5 had been given SG/promotion as PS (B‑17) with effect from 1‑2‑1990. The appellant had submitted that his all ACRs were good/satisfactory, as he had never been conveyed any adverse remarks. Therefore, ignoring him/superseding him for non‑considering/for not giving Selection Grade promotion as PS (B‑17) with effect from 1‑2‑1990 was a mala fide, ultra vires and unlawful. The representative of the respondents Department had confirmed that the A:C.Rs. of the appellant upto 1990 were all satisfactory/good and there was no adverse remark. But he had mentioned that, since he was still junior to private respondents 2 to 5 then in 1990 and he was only declared senior in 1992 and that was the main reason for the D.P.C. to ignore the appellant for considering for SG/promotion as PS (B‑17).

5. The departmental representative had further mentioned that in the Ministry no senior officer i.e. Addl Secretary/Secretary wanted to take the appellant as PS with him, because of his old age and being not so efficient. As such the respondents 2 to 5 who had been working as PS to the Addl Secretary/Secretary in (B‑17). This was another reason that the appellant could not be posted as PS to Addl. Secretary/Secretary and could not be given SG/promotion (B‑17). The representative from the Establishment Division (Mr. Zakaullah Jan, Section Officer) who was available had clarified that although a post of PS was a selection post, but the DPC/Department should consider the names of the eligible Stenographers/officials in accordance with their seniority and only ignore/supersede the senior, if his service record was unsatisfactory or he was unfit for promotion. Since the record of the appellant in the instant case, as stated 6y the departmental representative of the Ministry was' good/satisfactory, the DPC/Department should not have ignored the appellant being senior to the private respondents.

6. After hearing the parties, it is established that since the appellant had p been declared senior in the seniority list which had been issued by the respondents‑Department on 30‑1‑1992 in consultation with the Establishment Division, he should not have been ignored/superseded by the D.P.C. from consideration of Selection Grade/promotion as PS (B‑17), when his juniors had been given Selection Grade/promotion as PS (B‑17) w.e.f. 1‑2‑1990. The plea of the respondent‑Ministry that during 1990 he was still junior and his seniority had not been settled by then does not hold good and it has no legal weight. Rather the respondent‑Ministry after finding/placing him senior to respondents 2 to 5 should have rectified the mistake after awarding him Selection Grade/promotion as PS (B‑17) and have given him the same benefit of Selection Grade/promotion as PS w.e.f. the same date of 1‑2‑1990, as his juniors had been given the benefits. The departmental representative and the respondent 5 had stated that the mistake could be rectified and the appellant be considered/appointed/given Selection Grade/promotion as PS(B‑17) with effect from 16‑4‑1993, when respondent 5 (M. Azim) was to proceed on L.P.R. and the post become available to accommodate him as P.S. This was, however, agreed by the learned counsel and the appellant that they would have no objection, if the respondent‑Ministry would consider/accommodate the appellant for giving Selection Grade/promotion as PS (B‑17) with effect from 16‑4‑1993, as he would gain the benefit on the eve of his retirement which was to take place on 12‑6‑1993 and he would ignore the financial benefits i.e. arrears of enhanced pay and allowances in B‑17 with effect from 1‑2‑1990 to 15‑4‑1993.

7. As per agreement of parties, we accept the appeal to the extent indicated above and the respondent‑Ministry shall consider/appoint/give Selection Grade/promotion as P.S. (B‑17), fix his pay, salary and increments with effect from 1‑2‑1990 and allow benefit of increased salary and arrears from 16‑4‑1993, when the post of P.S. falls vacant due to proceedings of L.P.R. of respondent 5 (M. Azim).

8. No order for costs. H.B.T:/828/Sr.F Appeal accepted.