1989 PLP (C (PLC(CS))

CH. A. RAHMAN KHAN (MEMBER).--This order will also dispose of five other Appeals Nos. 231(R), 232(R), 233(R), 234(R) and 235(R) of 1987 as' these are identical and directed against the similar cause of action.

2. Mr. Abu Talha Ansari, Superintendent, Economic Affairs Division, the appellant has preferred this appeal against the impugned Order No.5(117)/EA/A.III/86, dated 4-5-1987 whereby he was refused promotion as held in the case of Mr. Bashir Ahmed in Appeal No. 170(R) of 1985.

3. The brief facts of the case are that the appellant joined as Lower Division Clerk in the Economic Affairs Division on 16-09-1954. He was later promoted as Upper Division Clerk on 3-11-1961, and ad hoc Assistant on 16-5-1967. He was regularised against the departmental quota of Assistants on 22-2-1968.

4. The learned counsel for the appellant argued that in the final seniority list of Assistants issued on 1st June, 1982, the appellant was shown at serial No. 7 with his date of promotion as on 22-2-1968. However, a roster of vacancies in the cadre of Assistants (Economic Affairs Division) was later circulated vide letter, dated 11th May, 1983 with the approval of the Establishment Division. In this roster M/s. Irshad Ahmed and lqbal Ahmed Noon who joined as Assistants as direct recruitees were placed at S.Nos. 36 and 37 respectively whereas the appellant was shown at S.No.

95. This was done in spite of the fact that the appellant had objected to the provisional seniority list issued in 1976. It was further contended that although M/s. Irshad Ahmed and lqbal Ahmed Noon were juniors to the appellant according to date of joining the service yet they were promoted as Assistant-in-Charge on 9-8-1973 and 24-8-1973 respectively. The name of the appellant was not initially considered but he was later promoted as Assistant-in-Charge with effect from 6-1-1977 as a result of his verb representation. The abovementioned officials were promoted as Superintendents with effect from 17-12-1976 and on again the appellant was ignored subsequently promoted as Superintendent with effect from i7 contended that this was a clear case of violation of rules regarding promotion c officials on seniority-cum-fitness basis as per the find June, 1982.

5. The learned counsel for the appellant submitted that Mr. Bashir Ahmed who was placed at serial No. 6 in the final seniority list issued on 1st of Jane, 1982 had been ignored for promotion on similar grounds. He w as entitled to be promoted from the same date as M/s. Irshad Ahmed and Iqbal Ahmed Noon vide Tribunal Judgment, dated 17-12-1986 in his Appeal appellant's 170(R) of 1985. The case being identical to that of Mr. Bashir Ahmed was brought to the notice of the competent authority but was rejected vide order, dated 4-5-1985 received on 6-S_1987. This, it was strongly contended was, clear violation of the existing rules and against the principle of fair-pay and Justice. It was, therefore, prayed that the appellant's appeal may be accepted on the analogy Mr. Bashir by of the case of Ahmed and he be promoted as Assistant-in-Charge with effect from 9-8-1y73 and Superintendent w.e.f. 12-12-1976 with back benefits on the basis of the. principle of seniority-cum-fitness under the existing rules.

6. The learned counsel for the state alongwith the representative of the department contended that for the first time a provisional seniority list was prepared in March, 1976 on the basis of which the final seniority list was issued in 1982 wherein the all was shown as Assistant with effect from 22-2-1968 on regular basis. M/s. Irshad Ahmed and 1qba1 Ahmed Noon who joined as Assistants as direct recruitees were not shown in the Section list of 1982 as by that time they had already become Section Officers. Prior to that a roster had been prepared in which M/s. Irshad Ahmed and Iqbal Ahmad Noon were included. If, however, their names were included in the finals 'seniorty list of 1982, they would have appeared after the name of the appellant. However, it was strongly contended by the learned counsel for the state that the appellant made no representation either on his super-session as Assistant-in-Charge 7` We have perused the record produced before us carefully. We arc of the view that there is substance in the contention of the appellant that if the -charge who were held juniors to him had been promoted earlier as Assistant-in-Charge and Superintendent and the fitness of the appellant to be promoted to those, Posts, was not denied he should also be deemed to have been Assistant-in-Charge and effect from the promoted as Superintendent with same dates i.e. Assistant-in-Charge on 9-4-1973 and Superintendent on 17-12-1976 when hi juniors were promoted. In such a case we feel that the appellant has not been allowed consequential benefits of arrears without any just reason. 8 We are also of the opinion that the Contention of the respond department with regard to appeal being hit b section 4(1)(a) of the Service Tribunals Act, 1973 is not valid because Office Order, dated 17th July, 19851 clearly indicates that the appellant was given promotion as Assistant 19851 with effect from 6-1-1977-as a result of revision of the seniority list of Assistants which must have been the result of the representation made by the appellant. 1n our view the appellant's case is similar to that of Mr. Bashir Ahmed in Appeal No. 170(R) of 1985. Therefore, the principle of `ratio decidendi' is fully applicable to the appellant's case. We also agree with the question of applicability of the Tribunal's judgment to cases of similar nature as held in 1984 P L C (C.S.) 452 which is reproduced below:-- "We have highlighted the point elsewhere and held that our decisions should be made applicable by the Department Authorities in other cases of similar nature whether or not every employee has come before us, because, in this way better atmosphere is generated, employees confidence in the Department is strengthened, and a good deal of litigation which is at the cost of primary work, is avoided."

9. The upshot of the above discussion is that in view of settled law that if a person is prevented for no fault of his from holding a senior post, he when promoted to that post presumptively, shall also be entitled to the payment of arrears of pay. We, therefore, direct that the appellant shall be deemed to have been promoted as Assistant-in-Charge with effect from 9-4-1973 and Superintendent on 17-12-1976 when his juniors M/s. Irshad Ahmed and lqbal Ahmed Noon were promoted. We further direct that appellant should be paid arrears of pay with effect from 9-8-1973 as Assistant-in-Charge and as Superintendent from 17-12-1976. Ordered accordingly.

10. No order as to costs.

11. Parties be informed. A.A./475/Sr. F Appeal allowed.