1995 PLP (C (PLC(CS))

MUHAMMAD‑ RAFIQ TARAR, J.‑‑‑The facts forming background of this petition for leave to appeal are that the respondent is a graduate. He joined the "Treasury Department" as a junior clerk on 27‑9‑1957. In due course he was promoted as Assistant Accountant on 1‑10‑1974. Vide order dated 6‑10‑1981 the Commissioner, Lahore Division, Lahore petitioner No. 2 herein, on the recommendation of the Departmental Promotion Committee promoted him as Officiating Accountant with effect from 12‑2‑1980. Later on this order was recalled and the respondent and two others were reverted to their original posts .as Assistant Accountants vide order dated 5‑11‑1986 being "non qualifi6d/Acting Accountants" as they had not passed the SA.S. departmental examination introduced under the Punjab Subordinate Accounts Service Regulations, 1975. Since the order was passed by the Commissioner under the direction of the Finance Secretary petitioner No.1 herein, the Departmental Appellate Authority, therefore, the respondent approached the learned Service Tribunal without availing the departmental remedy but later on he withdrew his appeal and made a departmental representation which was rejected. Thereafter he filed an appeal before the Tribunal which was allowed. Hence this petition for leave to appeal by the above‑named petitioners.

2. The case of the respondent before the Tribunal was that he was regularly promoted as Accountant by the competent authority under the Pay Revision Rules, 1977 which allowed Scale No.11 for those who had not passed S.A.S. examination; he was regularly promoted against a clear vacancy which occurred due to the retirement of one Bashir Ahmad and the‑insertion of the word "officiating" in the promotion order dated 6‑10‑1981 was redundant; he was discriminated as eight other Assistant Accountants were exempted from passing the SA.S. examination vide order dated 7‑5‑1981 although the Finance Department in its letter dated 7‑11‑1977 had clarified that "only those officials who have cleared examination under the said Regulations would be eligible for promotion as Accountant and the previous qualification affords no claim for promotion"; he was not served with any notice before passing the order of reversion.

3. The submissions made before the Tribunal and now reiterated before us on behalf of the petitioners herein are that the respondent was never promoted as Accountant and in fact it was only an arrangement which was later on rescinded calling for no show‑cause notice; the competence of the Departmental Promotion Committee and the Commissioner extended only to the promotions up to BPS‑15 while the job of Accountants in the Treasury Department was in NPS‑16 and promotion to that post was beyond the power of the Commissioner the case of the officials who were granted exemption regarding S.A.S. examination was distinguishable and the respondent was not entitled to the said concession.

4. We have considered the submissions made at the Bar in the light of material available on the record. Admittedly the respondent was promoted on the recommendation of the Departmental Promotion Committee to hold the post of Accountant on 12‑2‑1980 against a permanent vacancy having occurred on the retirement of Bashir Ahmad Accountant and continued in that capacity until he was reverted without notice to the post of Assistant Accountant on 18‑11‑1986. It is also not denied by the learned counsel for the petitioners that eight persons who were promoted to hold the posts of Accountants presumably on similar recommendations were exempted from qualifying the examination and were not reverted. The contention raised by the learned counsel that these incumbents were already over 45 years has not impressed us because in that case no question of exemption would arise as they became ineligible to hold the posts of Accountants. We, therefore, find substantial force in the finding of the Service Tribunal that the respondent was discriminated in the matter. Furthermore, it appears that the petitioners at no stage pleaded that the respondent was promoted to hold the post of Accountant with explicit condition or understanding that he would stand reverted without notice when an incumbent having qualified S.A.S. examination joined the post, in the absence whereof the reversion of the respondent was undoubtedly contrary to the cardinal principles of natural justice. On going through the impugned judgment we find that all the contentions raised on behalf of the petitioners herein have been answered satisfactorily. For the foregoing reasons and especially in view of the peculiar circumstances of the present case we do not consider it a fit case where this Court in exercise of discretionary jurisdiction should interfere with the impugned order. Resultantly this petition is dismissed and leave refused. AA./S‑893/S Leave refused.