2019 PLP (C (PLC(CS))

CH. MUHAMMAD IBRAHIM ZIA, C.J.

The captioned appeal by leave of the Court has been filed against the judgment of the Service Tribunal dated 23.12.2017, whereby the appeal filed by respondent No, 1, herein, has been accepted.

2. The precise facts of the case are that a post of Assistant Director B-17 fell vacant due to regular promotion of one Muhammad Sharif Qureshi as Deputy Director B-18 on 05.04.2011. Against the post fallen vacant, respondent No.1, herein, who was holding the post of Assistant Director B-17 on officiating basis was regularly promoted vide notification dated 20.04.2016 on the recommendations of Selection Board No.03. He challenged the said notification in the Service Tribunal with the prayer that:- It is, therefore, most humbly prayed that while accepting the captioned appeal, the impugned Notification No.2016/2971-79/2016 dated 20.04.2016 may be amended/modified/made effective w.e.f 05.04.2011 and the appellant be declared to be entitled for all the benefits of service including seniority w.e.f 05.04.2011. The Learned Service Tribunal, after taking necessary proceedings, accepted the appeal with the direction to the concerned authority to issue the promotion notification of respondent No. 1 as Assistant Director B-17 w.e.f 05.04.2011. Feeling aggrieved from the judgment of the Service Tribunal, the appellant, herein, has filed the instant appeal with the claim that she was appointed as Assistant Director B-17 vide notification dated 05.04.2011. She was not arrayed as party before the Service Tribunal, however, due to impugned judgment of the Service Tribunal her vested accrued rights have adversely been affected.

3. Sardar Pervaiz Akhtar, Advocate, the learned counsel for the appellant seriously objected to the impugned judgment on the ground that the appeal before the Service Tribunal without impleading the appellant was incompetent. Her accrued vested rights have been adversely affected. The appellant was selected on merit by the Public Service Commission. She joined service on 05.04.2011, whereas, the contesting respondent, who is promotee, was promoted vide notification dated 20.04.2016. Subsequently he claimed retrospective promotion from 05.04.2011 but on the said date the holder of the post Muhammad Sharif Qureshi, was promoted on regular basis as Deputy Director B-18. The appellant's only concern is relating to the seniority position. Due to retrospective promotion of respondent the seniority of the appellant has adversely been affected. He further argued that although the Courts can give effect from the date of occurrence of vacancy but according to enforced law after availability of the post certainly some time is required for processing the case and obtaining the recommendations of the selection board. If for the sake of arguments, it is deemed that the post became vacant on 05.04.2011 even then at least few days' time is required for processing the matter of promotion. If it is presumed that at least one day is consumed even then the respondent cannot be declared senior to the appellant. In this state of affairs, the appellant is necessary party and without impleading her the final decision of appeal is against law, however, if the appeal is disposed of with the observation that the impugned order will not adversely affect the seniority of the appellant he has no objection.

4. Conversely, Raja Akhlaq Hussain Kiani, Additional Advocate-General the learned counsel for the proforma-respondents submitted that although the respondent was duly promoted according to law, however, due to the judgment of the Service Tribunal the retrospective effect has been given. The authority has not given the retrospective effect by exercising its powers rather the Service Tribunal has given affect, however, the argument of learned counsel for the appellant that some time is naturally consumed in processing the case, has substance.

5. Raja Gul Majeed Khan, Advocate, the learned counsel for the contesting respondent seriously opposed the appeal on the ground that the learned Service Tribunal has rightly passed the impugned judgment. It is clearly proved that the post became available on 05.04.2011, thus, it is the right of civil servant to be promoted from such date, specially, when he was already holding the post on officiating basis.

6. We have heard the learned counsel for the parties and examined the record made available. Relating to the factual aspects there is no controversy. The appellant, who was selected on merit by the Public Service Commission, appointed vide notification dated 05.04.2011. Since then she has been continuously holding the post on regular basis, whereas, the respondent was promoted on regular basis vide notification dated 20.04.2016. According to the record, as claimed by the respondent, the post became available on 05.04.2011 when the holder of the post Muhammad Sharif Qureshi, was regularly promoted as Deputy Director, thus, it is clear that till 05.04.2011 the post was held by Muhammad Sharif Qureshi. The perusal of the record reveals that even before the issuance of regular promotion order of Muhammad Sharif Qureshi the respondent filed application on 28.03.2011 for processing his case and holding of meeting of selection board. In this regard, some official communications are also part of the file of Service Tribunal as Annexure "PE/1" to "PE/10". Leaving aside all other aspects, if the version of the respondent is deemed correct, which is ordinarily not possible, and it is presumed that all the functionaries with due diligence vigilantly performed their functions even then for holding the meeting of selection board one day time is required. In that case, the post will be deemed available on the day following the notification of regular promotion of Muhammad Sharif Qureshi and not on the same date. If this proposition is judged from another angle in the light of statutory provisions of section 9 of the General Clauses Act, 1897, even then the first date of series has to he excluded. It will be useful to reproduce here section 9 of General Clauses Act, 1897 which reads as follows:- "

9. Commencement and termination of time. (1) In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word "from", and, for the purpose of including the last in a series of days or any other period of time, to use the word "to". Thus, according to this statutory provision by excluding the first day of series the regular promotion of Muhammad Sharif Qureshi vide notification dated 05.04.2011 shall be deemed from the day following the notification.

7. In this state of affairs, we deem it appropriate for doing complete justice to modify the impugned judgment of the Service Tribunal that the retrospective promotion granted to the respondent shall be given effect from the day following the day of regular promotion of Muhammad Sharif Qureshi and not on the same day. In this way the accrued vest right of the appellant will also be protected. This appeal stands disposed of in the above manner with no order as to costs. ZC/56/SC(AJ&K) Order accordingly.