2001 PLP (C (PLC(CS))

Abdul Rashid for the C.D.A. Date of hearing: 21st April, 1999. ABDUL HAMEED KHAN KHATTAK (MEMBER).--Appellant has preferred this appeal feeling aggrieved by an order dated 12-2-1996 whereby he was granted Selection Grade, BPS-17 with immediate effect and not from 28-5-1995, the date from which respondents Nos. 2 to 5 (junior to him) were granted selection grade.

2. Brief facts are that the appellant joined Capital Development Authority (CDA) on 1-7-1963. He was promoted as Assistant Admin. Officer in BPS-16 with effect from 19-1-1988 (Annexure-A) and his name was appearing in the seniority list of B-16 (Annexure-B) dated 12-7-1994 at serial No. 23 whereas respondents Nos. 2 to 5 were mentioned at Serial Nos.24 to 27 being junior to him. On 23-5-1995 the appellant and respondent Nos. 2 to 5 were considered for the grant of Selection Grade, BPS-17 out of whom respondents Nos. 2 to 5 were placed in Selection Grade, BPS-17 vide order dated 28-5-1995 (Annexure-C) whereas the appellant's case was deferred on account of 'pendency of disciplinary proceedings against him and upon conclusion of the said disciplinary proceedings, the case of appellant for grant of Selection Grade, B-17 was reconsidered and he was accordingly granted Selection Grade, B-17 with effect from 12-2-1996 instead of 28-5-1995 on which date such Selection Grade was granted to respondents Nos. 2 to 5 being junior to him. Feeling aggrieved thereof, he submitted departmental appeal on 6-3-1996 (Annexure-D) and thereafter issued reminder (Annexure-E) for ante-dating the Selection Grade from 12-2-1996 to 28-5-1995 but he received for the first time letter dated 16-10-1998 (Annexure-F) whereby his such request was turned down hence, he preferred this appeal on 21-10-1998 with a prayer for ante-dation of his Selection Grade as detailed above.

3. Respondents filed parawise comments wherein as a matter of fact they did not oppose the above prayer made in the appeal, rather according to the respondents, the matter on the request of the appellant was referred to DPC for modification of the impugned order but it did not find favour due to certain administrative reasons, nevertheless, at the fag end of parawise comments it was made clear that the appeal be disposed of as per law on the subject.

4. Arguments heard, record perused.

5. There is no denying the fact that respondents Nos. 2 to 5 were juniors to the appellant and they were granted Selection Grade on 28-5-1995 but the appellant was deprived of the same simply for the reason that departmental proceedings were pending against him. at that time and his matter relating to grant of Selection Grade was deferred. Those departmental proceedings stood concluded by awarding the minor penalty of 'censure' on 31-5-1995 i.e. only 8 days after consideration of Selection Grade By DPC. It is well-settled principle that minor penalty like 'censure' is not to be considered as any hindrance for grant of promotion, Selection Grade, move over etc., even the respondent-department did recommend his case for ante dation of Selection Grade as 'censure' was not an obstacle in this respect but the concerned officer turned down this request simply for the reason that the officer at the helm of affairs at the time of holding of DPC was different person who thereafter stood transferred to another section. Legally speaking this was no reason for turning down the departmental appeal/representation of the appellant and this relief must have been granted to him at the door step which would have saved the appellant of the expenses and agony culminating in preferring the present appeal. The stand taken by the appellant about ante dation of Selection Grade is even supported by CDA Employees (Service) Regulations, 1992 and the relevant para. 6.04(c) is reproduced as under:-- "(c) An employee eligible for promotion who is inadvertently omitted from consideration in the original reference or whose case is held up in circumstances beyond his control, while his junior or juniors are promoted to the higher, post, shall, when he is subsequently considered and is promoted without any supersession, take his seniority with the original batch. " Not only that even it was also held in 1990' SCMR 657 that appellant was entitled to seniority on the principle laid down in ESTACODE 1983 Edition, in paragraph 'B' in clause (b) which provides that when in a single reference, a case before the DPC is held up in respect of a person for reasons beyond control of such person, the recommendations of DPC when made subsequently, shall be deemed to have been made on the day when the recommendations in respect of the original batch were made. Even the learned counsel for the respondent during the course of arguments candidly accepted the above legal proposition.

6. Resultantly we are of the considered view that the impugned order suffers from inherent legal infirmity pointed out above and as a consequence the appeal succeeds which is accepted with costs and the impugned order is modified to the extent that the date of grant of Selection Grade to the appellant be deemed as being 28-5-1995 and not 12-2-1996 with all consequential benefits.

7. Parties be informed regarding decision of this -appeal through registered post. H.B.T/319/FST Appeal accepted.