1988 PLP (C (PLC(CS))

S. ABDUL JABBAR KHAN (CHAIRMAN). ‑‑Rana Muhammad Bashir Ahmad, Under Secretary, Government of the Punjab, Finance Department, Lahore (in Appeal No.702/1163 of 1984) and Mansoor Azhar Farooqi, Special Magistrate cum‑Enquiry Officer, Punjab Road Transport Board, Lahore, presently Under Secretary Irrigation and Power Department, Lahore (Appeal No.703/1164 of 1984) have filed these appeals a/s 4 of the Punjab Service Tribunals Act, 1974 before this Tribunal on 3‑9‑1984, in which they have impleaded Government of the Punjab through Chief Secretary, Civil Secretariat, Lahore, as respondent. Later on another appeal No.14/57 of 1985 was filed by Nansoor Azhar Farooqi, u/s 4 of the Punjab Service Tribunal Act, 1974, in which besides Punjab Province, through Chief Secretary, Government of the Punjab, Lahore, M/s Mahmood Ahmad Sheikh and t6 others, were impleaded as respondents. This was done through emended appeal which was filed on 14‑3‑1985. 2. By virtue of Appeals No.702/1163 of 1984 and No.703/1164 of 1984, the appellants have prayed that respondents be directed to consider the appellants for promotion to the next higher grade i.e. Grade‑18 (DC/DS) in accordance with their seniority‑cum‑fitness in the cadre strength and to promote them w.e.f. the date their next juniors were so promoted. They further prayed that respondent be directed to award NPS‑18 (AC/ADC) from the date their next juniors were so awarded with all back benefits. However, in Appeal No.14/57 of 1985, filed by Mansoor Azhar Farooqi, the appellant has prayed that the impugned order dated 16‑12‑1984, be set aside and he be declared to be entitled to promotion in NPS‑18(AC/ADC) from the date his next junior was so promoted i.e. March, 1972 with all back benefits and seniority position of the appellant held by him before the publication of seniority list of 1982, be restored. 3. As the law point as well as facts involved in all these three appeals are identical in nature and even the prayer made by Mansoor Azhar Farooqi, i.e. seniority position held by him before publication of seniority list of 1982, be restored would be a sequence in case his appeal is accepted, therefore, we proceed to decide all the three appeals with our this single judgment. 4. Brief facts of the case are as under:‑ RANA MUHAMMAD BASHIR AHMAD: The appellant was a direct recruit to PCS (EB) and was appointed and posted as E.A.C.(Jr. Class I) w.e.f. 8‑11‑1965. On the principle of seniority‑cum‑fitness, the appellant was appointed as Assistant Commissioner vide Notification No.l‑1/71(SOPI) dated 28‑10‑1974 and remained posted as such at different places viz. A.C. Jampur, Pindi Gheb and Bhalwal and then A.C. Pindi Gheb till the time of Pay Revision Rules, 1973. At the time of promulgation of Pay Revision Rules 1973, the appellant was posted as A. C. Pindi Gheb but then onward he was posted as A. C. B. halwal and against as A. C. Pindi Gheb and then remained posted as Judicial Magistrate, Faisalabad and thereafter remains posted as Under Secretary, Finance Department, Civil Secretariat, Lahore. In the year 1974, vide notification No.2‑8/73‑SOP/ dated 30‑9‑1974, when the colleagues of the appellant of the same batch were inducted as AC/ADC, the appellant was ignored for the same, ignoring the automatic rule of move over to NPS‑18(AC/ADC) in accordance with Pay Revision Rules, 1973. The appellant represented against the said inequity again and again. However, his move over to NPS/18 was withheld till 28‑5‑1984, when it was so accorded to the appellant through the clearance of the Provincial Selection Board vide Notification No.2‑4/82(SO‑SII) dated 28‑5‑1984. The appellant also requested for consideration of his case in Grade‑18 (DC/DS) in accordance with his seniority‑cum‑fitness. Hence this appeal. MANSOOR AZHAR FAROOQI: The appellant was a direct recruit to PCS (EB) and was appointed and posted as E.A.C. Junior Class I vide Notification No.SP‑8‑3/60(SOIX) dated 27‑3‑1963. He joined as E.A.C. (U.T.) at Rawalpindi from 2‑4‑1963. On commencement of Assistant Commissioners Scheme, converting Tehsils into Sub Divisions as Administrative Units the appellant was selected as Assistant Commissioner on the basis of? seniority‑cum‑fitness, vide Notification No.l‑1/69 (SOPI) dated 24‑12‑1969. Henceforth the appellant held the charge at different places as Assistant Commissioner, Shahpur, Kot Adu, Haroonabad and as ADC(G) Gujrat. At the time of promulgation of Pay Revision (Gazetted) Rules, 1973, the appellant was posted as A. D. C. (G) Gujrat. Later on, the appellant held the charge of Assistant Commissioner, Bhakkar, Pak Pattan, Sadiqabad and as Senior Special Magistrate‑cum?-Enquiry Officer, in Punjab Road Transport Board, Lahore (on deputation). At the time of filing of these appeals he is posted as Under Secretary (Admn) Government of Punjab, Forestry, Wildlife and Fisheries Department, Lahore. The appellant was considered alongwith his colleagues of the same batch for promotion to NPS‑18 (AC/ADC) in 1974. This promotion was to be effective from March, 1972 in accordance with the provisions of Pay Revision (Gazetted) Rules, 1973. However, the appellant was ignored on the pela of unsatisfactory record of service vide Notification No.2‑9/73(SOPI), dated 23‑12‑1974. In this way the appellant continued working as A.C./ADC without being given the higher pay scale which was attached with the said post. The appellant made representation to the competent authority against this inequity whereas he was served with a show‑cause notice on the charge of unsatisfactory record of service dated 3‑11‑1975, and while the charge of unsatisfactory record was still under inquiry the appellant was again notified to have been ignored for promotion to NPS‑18 (ACIADC), on the same plea vide order dated 19‑6‑1975. The appellant again represented against this injustice but the Notification of 1975 was cancelled by another notification dated 26‑1‑1977, in which the appellant was neither promoted nor ignored for promotion. As ill‑luck would have it, the appellant was placed under suspension from 9‑7‑197.6, vide Order No.2‑13/76‑SOP V, dated 9‑7‑1976, and remained under suspension till 4‑10‑1977, without charge‑sheet and without periodical extension by the competent authority. However, the appellant was re‑instated on 4‑10‑1977 and posted as Assistant Commissioner, Bhakkar. The Government decided to withhold his entitlement of suspension period against which the appellant represented to the higher authorities but instead of getting his dues, he was charge‑sheeted and was put under regular inquiry on the charge of misconduct for alleged act of unbecoming of gentleman. As a result of inquiry the appellant was exonerated from the charges vide order No.SO(C) 4‑88/76, dated 9‑1‑1979 and under this order the period of suspension from 9‑7‑1976 to 4‑10‑1977 was to be treated as on duty with full pay and consequential benefits. A Notification came into existence on 2‑7‑1978 containing No.208 (SOSVII) (Vol. II) and the appellant was ignored for promotion to NPS‑18, on the same plea of unsatisfactory record of service, although the appellant was fully exonerated of the same. Ultimately the appellant was promoted to NPS‑18 (AC/ADC) after two departmental inquiries ended in his favour vide order No.2‑8/73 (SOS/VII) dated 4‑11‑1979. The‑ appellant filed another representation against the notification of 2‑7‑1978, for ignoring him for promotion to NPS‑18 and claimed promotion from the date his next junior was promoted in March, 1972. Instead of considering the case of the appellant, the appellant was retired under section 12(ii) of the Punjab Civil Servants ' Act, 1974. However, this order of retirement was set aside by the Punjab Service Tribunal, when it was found that the appellant had not yet completed 25 years service, vide Tribunal order dated 4‑5‑1980. After the appellant was so re‑instated in service, he filed another representation dated 20‑7‑1981, requesting for promotion to AC/ADC and to Grade‑18 (DC/DS), in accordance with his seniority from the date his next junior was promoted as such. This representation has now been rejected by the respondent after three and a half years period on 16‑12‑1984. In these circumstances and facts the appellant filed Appeal No.702/1163/84 and consequently Appeal No. 14/57 of 1985. 5. Before we enter into the merits of the cases it will be useful to mention here that in Appeal No.14/57 of 1985, Mansoor Azhar Farooqi has impleaded a large number of respondents who were issued notices to appear and contest his claim, but as none appeared, therefore, this Tribunal vide order dated 6‑5‑1985, passed ex parte proceedings against them. 6. We have heard the learned counsel for the appellants as well as learned District Attorney assisted by the representative of the Department and have perused the entire record of this case carefully with their assistance. 7. With regard to the grant of NPS‑18(AC/ADC) learned counsel for the appellants have contended as under:‑ (i) Pay Revision (Gazetted) Rules, 1973, provided higher pay to the post of AC/ADC and incumbents were required to opt either for; (a) the existing pay scale in NPS/Grade‑17 with Special Pay of Rs.60 p.m. alongwith the benefit of selection Grade 1050‑75. (b) New scale of pay NPS/Grade‑18. The appellant gave option under Rule 4 of the Pay Revision Rules, 1973, and opted for the new Pay Scale. In accordance with sub‑rules (5) and (6) the option once exercised shall be final. Rule 5 of the said Rules provides that subject to the provisions of Rules 5 and 6 of these Rules the pay of the existing Government servants who opted for National Pay Scales, shall be fixed in the said Scale w.e.f 1‑3‑1972. Thus, the new Pay Revision Rules having come into force and the appellants having opted for the National Pay Scale they were entitled to NPS‑18 (AC/ADC) w.e.f. 1‑3‑1972. Learned counsel for the appellants further contended that the same enhancement in pay was made in respect of many other posts of different departments, such as Divisional Forest Officer from NPS‑17 to NPS‑18 of Forestry and Wildlife Department and Canal Collectors from NPS‑17 to NPS‑18 in the Irrigation Department and it did not mean that existing D.F.O. and Canal Collectors were required to be promoted again for being placed in the new pay scale No.18. (ii) A reference has been made to the note of Secretary. SGA&I Department on file No.2‑8/73‑SOP I, Vol. I and the advice of the Regulations Wing of the S&GAI Department vide UO No. SORII (S&GAD) 2‑61/74 dated 15‑1‑1974, on file No.2‑8‑SOPI, Vol. I, wherein it has been observed as follows:‑ "Regulation Wing observe that introduction of the Scheme of National Pay Scales per se, should not, and is not intended to, affect the existing, seniorities. An officer who has been ignored for promotion to Selection Grade will continue to retain his original seniority vis‑a‑vis those promoted to the Selection Grade and the competent authority should on this basis consider the case of all such officers on every occasion for promotion unless any one is superseded for promotion to the higher post on merits. In this connection attention is also invited to the definition of Grade in the Punjab Civil Servants (Change in Nomenclature and Abolition of Classes) Rules, 1974. Keeping in view these considerations, it was decided that EACs may be promoted to NPS 18 without mentioning in the Notification that this means promotion to Grade‑18. So far as promotion of 30$ of Section Officers to NPS‑18 is concerned, it is clear that as they continue to remain Section Officers, they are being promoted to a higher scale and not to a higher grade. It was also decided that in the existing seniority list a column showing NPS of the officer will be added." Learned counsel for the appellants has argued that seniority list of 1978 and 1980 makes it crystal clear that even though certain officers were ignored due to certain reasons yet they were considered senior in view of their automatic promotion to Grade‑18 and the same was depicted in the said seniority lists. With regard to the action of the Government in not granting the pay attached to the sanctioned posts of the appellants learned counsel for the appellants have relied on section 16 of the Punjab Civil Servants Act, 1974, in which it is incumbent upon the Government to accord sanction of the pay so attached with the post or Grade. Learned counsel for the appellants have emphasized that the fact of appellant Mansoor Azhar Farooqi having been ignored for the rank of AC/ADC uptil 1979 and having been ignored uptil 1984 does not mean that they were not entitled to the grant of NPS‑18 w.e.f. 1‑3‑1972, to which they were entitled in accordance with the Pay Revision (Gazetted) Rules, 1973. 8. With regard to the point that the appellants would not be re-promoted for the grade of DC/DS and were in fact entitled to the said promotion from their basic seniority of EACs learned counsel have submitted that it is nowhere provided that the EACs were first to be promoted and placed in NPS‑18 and then they could be promoted to NPS‑18 rank of DC/DS. The seniority lists of 1978 and 1980 also indicate that the seniority as EAC is kept intact irrespective of different officers having been posted/promoted as AC/ADC and it was quite illegal in the year 1982, when these were deviated. It has been submitted that Mr. Feroze Ahmad Khan was ignored for NPS‑18 twice vide notifications of 1974 and 1975 but when according to the basic seniority as EAC, his turn to senior scale of DC/DS came in the year 1976, he was so promoted. Learned counsel for the appellants brought out a clear case of discrimination against the appellants. Learned counsel for the appellants have further indicated that Akhtar Ali Shah was ignored for A.C. but was then promoted to the rank of DC/DS and in his case no such reference to the promotion of AC Grade was ever considered to be relevant. In this connection learned counsel for the appellants have drawn attention to the seniority list as on 31‑12‑1977 wherein the name of Akhtar Ali Shah is mentioned at serial No.79 and the name of Mansoor Azhar Farooqi has been mentioned at serial No. l6. Similarly in the seniority list ‑as on 31‑12‑1980, the name of Akhtar Ali Shah is mentioned at serial No.109, whereas the name of Mansoor Azhar Farooqi exists at serial No.55. Similarly Rana Bashir Ahmad is senior to him in the said list. Another instance of Mr. Akhtar Jozaf was quoted in this respect. It has been submitted that he was promoted to NPS‑18 AC/ADC w.e.f. 20‑10‑1979 alongwith Mansoor Azhar Farooqi under the same notification dated 4‑11‑1979, but it was not indicated that he had become junior to those who had been promoted to NPS‑18 (AC/ADC) prior to him and that he had lost his basic seniority as EAC. He was promoted to the rank of DC/DS according to his seniority in the year 1980 as EAC whereas the case of Manzoor Azhar Farooqi, appellant, was not considered for promotion to the rank of DC/DS on the same analogy in accordance with his basic seniority as EAC and no reasons for this discrimination have ever been given. 9. With regard to the case of Mansoor Azhar Farooqi, learned counsel for the appellants have submitted that the lists of 1978 and 1980 clearly reveal that he was shown senior to all the contesting respondents in the basic seniority of FACs, therefore, to show him junior in the list of 1982, would be contrary to law. 10. On the other hand learned District Attorney has adopted the comments submitted by the respondent Government and has submitted that the impugned order dated 16-12‑1984, was legal and lawful on the ground that almost all the ACRs mentioned in the para were available in his C.R. Dossier, of Mansoor Azhar Farooqi. Even if the ACRs were not available at the times when his case for promotion was considered that did not count much because the appellant was not ignored for want of missing ACRs. Learned District Attorney further submitted that the posts in the non‑gazetted service of the appellant could not be taken into account while proposing disciplinary action against him as gazetted Government servant. This does not indicate the mala fides of the respondent. He further added that the bifurcation of the seniority list in two parts, one for the Assistant Commissioners and the other for the Extra‑Assistant Commissioners, was done as the cadre consisted of two grades. 11. With regard to the claim of pay, it has been submitted on behalf of the respondent Government that prior to the introduction of National Pay Scales, the posts of FAC/ACs/ADC(G), Assistants to Commissioners were in the time scale of Rs.450‑50‑1000. Assistant Commissioners and Assistant to Commissioners used to get a special pay at the rate of Rs.60 and Rs.110 respectively. 15% of the cadre posts minus listed posts were in the Selection Grade i.e. Rs.1050‑75‑1500. The Pay Revision Rules abolished the selection grade. The appellant was not the holder of the Selection Grade prior to the enforcement of Pay Revision Rules. All the officers who were promoted to Grade‑18(DC/DS) were promoted as they were holding NPS‑18 from dates much earlier to the date when the appellant was granted the said grade. 12. We have also taken into consideration he parawise comments on the appeal of Mansoor Azhar farooqi, filed by one Sajjad Javed Akbar, ADC, Rajanpur, although he has been proceeded ex-parte for non-appearance before this Tribunal, wherein the respondent has contested the claim of the appellant on the ground that he had chekered record of service and once he was ignored for the same, he could not claim seniority over others who had good record of service. According to the said respondent the colleagues of the appellant who had been promoted to higher scale became senior to him in accordance with Rules. He has denied the claim of the appellant that under section 16 of the Punjab Civil Servants Act, 1974 a civil servant will get the additional pay if he had held the said post. He was not senior in rank, therefore, he was not entitled for the said scale. 13. We have given our anxious thought to the arguments advanced by the parties and find that there are only two issues before this Tribunal which need adjudication and these are as under: (1) Whether the appellants after giving option under Rule 4 of the Pay Revision Rules, 1973, opted for the new Pay Scales, would they to fixed in the said NPS‑18 w.e.f. 1‑3‑1972, or not: (2) Once the appellants are fixed to NPS‑18, will they not be entitled to Grade‑18(DC/DS), when their juniors were so promoted. The record of this case reveals that the appellants did opt under' Rule 4 of the Pay Revision Rules, 1973, for the National Pay Scales and in accordance with sub‑rules (5) and (6), the option once exercised shall be final. Thus, National Pay Scales having come into force and the appellants having opted for the aforesaid NPS, they‑were entitled to NPS‑18(AC/ADC) w.e.f. 1‑3‑1972. 14. With regard to the second issue the respondents have failed to give justification to show that as to why, the appellants were denied Grade‑18(DS/DC) when their juniors were so promoted. We also further find that the appellants were entitled to the said grade from their basic seniority of EACs. Reliance is placed on seniority lists of 1978 and 1980, where the seniority of the appellants has been kept intact. No justification has been offered by the respondent to make deviation in the seniority list of 1982. This Tribunal has also taken note of the cases of M/s Feroze Ahmad Khan and S. Akhtar Ali Shah. Feroze Ahmed Khan was ignored for twice in the years 1974 and 1975, but while his basic seniority as EAC came in the year 1976, he was so granted. Similarly in the case of S. Akhtar Ali Shah who was ignored thrice for AC/ADC Grade was however, considered for Grade‑18(DC/DS) on the basis of his seniority as EAC. We have taken note of the seniority lists of 1977 as on 31,‑12‑1977, wherein the name of S. Akhtar Ali Shah exists et serial No.79 whereas the name of appellant Mansoor Azhar Farooqi is mentioned at serial No.16 and Rana Muhammad Bashir Ahmad, appellant, at serial No.52. Similarly in the seniority list as stood on 31‑12‑1980, the name of S. Akhtar Ali Shah is mentioned at serial No.109, whereas the appellants names stand at serial Nos.55 and 91 respectively. 15. With regard to the objection that the appellant Mansoor Azhar Farooqi had chequered record of service, and therefore, he was ignored, we have taken note of notifications of 1974 and 1975 which were cancelled vide Annexures B and D. The basis of unsatisfactory record of service on which he was so ignored, was removed by Government. Similarly the charge for which he was kept under suspension in 1976 was found baseless on the conclusion of the inquiry and was allowed full pay and consequential benefits. In this manner we have no hesitation to repel the argument of the respondent wherein it has been mentioned that all what was happened to the appellant was due to his checkered record of service. 16. With regard to the objection, raised by the respondent Government that promotion was not a matter of right but a grace, it will be sufficient to say that prospects of promotion are included in the terms and conditions of service and variation of terms and conditions of service resulting in lowering the incumbent status would fall within the purview of Punjab Civil Servants Act, 1974. Reliance is placed on P L D 1976 Lah.1310. Similarly in 1971 P L C (CST) 114, it has teen held that merits of persons not considered while promoting juniors is a fit case for proforma promotion with effect from the date of promotion of juniors. Similarly it was held in P L J 1984 Kar. 41, that promotion denied out of mala fides can be looked into by the Service Tribunal. 17. In the light of the above discussions and detailed analysis of the case, we proceed to accept the appeals of appellants set aside the impugned orders, and hold that the appellants would be entitled to NPS‑18(AC/ADC) after having opted under Rule 4 of the Pay Revisions (Gazetted) Rules, 1973, from 1‑3‑1972, and that to withhold them from Grade‑18(DC/DS) from the date their juniors were so given would also be unjustified. There will be no order as to costs. Judgment be communicated to the parties. A.E./79/S.Tr??????????????????????????????????????????????????????????????????????????????????????? Appeals accepted.