2009 PLP (C (PLC(CS))

NAZAR MUHAMMAD SHAIKH (MEMBER).

Appellant has filed this appeal under section 4 read with section 2-A of Service Tribunals Act of 1973 to assail the respondent's impugned order for promotion to the post of Head Master on regular basis w.e.f. 22-9-2000. Appellant preferred departmental representation against this order on 2-11-2000 for granting back benefits w.e.f. 4-7-1995. The appeal has not been responded.

2. Brief facts of the case are that the appellant joined the Education Cadre of Pakistan Railways as Senior Science Teacher w.e.f. 17-5-1969. Appellant has unblemished record without any punishment and his A.C.Rs. are also free from adverse entries. Appellant while posted as S.S.T. in Pakistan Railway's Boys Secondary School took over charge as Headmaster of the School from the outgoing Headmaster on 4-7-1995 under the orders of the respondent No.2. Appellant's name in the seniority list issued on 21-7-1986 was at Serial No.27. Out of these 26 only two officers i.e. Messrs Zafar Ali and Ghulam Muhammad at Serial Nos.23 and 25 of the said seniority list were still serving in the Department. Appellant was considered for promotion in the year 2000 by the D.P.C. and appellant's case was deferred for promotion for want of A.C.Rs. for the year 1996 to 1998 and two persons junior to the appellant were promoted as Headmasters in BPS-17. Another meeting of the D.P.C. was convened by the respondent No.1 and the appellant was considered and promoted and notification was consequently issued on 18-10-2000.

3. Learned Counsel for the appellant vehemently argued the appeal and stated that the appellant had been unjustly denied his promotion which was due w.e.f. 13-5-1999. He stated that for the non-availability of the A.C.Rs., appellant should not be made to suffer and he should be allowed promotion w.e.f. 13-5-1999 when his juniors were promoted. Appellant's counsel also stated that appellant had been officiating on higher post i.e. of Head Master and was not granted additional pay and was illegally and with mala fide intention denied promotion. Appellant's counsel in support of his contentions relied on the rulings reported in 1996 SCMR 1297, 2003 PLC (C.S.) 526, 1994 PLC (C.S.) 411, 1984 PLC (C.S.) 1616, 1992 PLC (C.S.) 1036. Appellant has also further relied on the rulings reported in 1999 PLC (C.S.) 112, 1997 PLC (C.S.) 127, 1992 PLC (C.S.) 95, 1991 PLC (C.S.) 224, 1990 SCiv1R 92, 1994 PLC (C.S.) 138, 1998 SCMR 208, PLD 1991 Supreme Court 1118, PLD 1994 Supreme Court 539, PLJ 1997 Lahore 1821, 1998 SCMR 736, 1973 SCMR 304, 1985 SCMR 1349 and 1996 SCMR 850.

4. The learned counsel for the respondents opposed the appeal and stated that it was not maintainable in view of the fact that the appellant had since retired on attaining the age of superannuation. He further stated that the appellant had been made to look after the post of the Headmaster on temporary basis as a local arrangement and competent authority's approval was not formal "approval of the competent authority for officiation as Headmaster was not issued by the competent authority. He further stated that the appellant's case for promotion was deferred, as his A.C.Rs. 1996 to 1998 were not available. He also pointed out that because of drawing maximum pay in BPS-18 he would not have been benefited from his promotion and, that, no loss has been caused therefore, appellant's appeal needs to be dismissed.

5. We have given due considerations to the arguments of the two counsel and perused the record and citations. There are two issues involved here. First issue relates to the additional pay for holding post of Headmaster w.e.f. 4-7-1995 and second issue is the date of promotion. As regards the first issue, the record very clearly indicates that the appellant was made to look after the post of Head Master through a local arrangement without formal notification issued by the competent authority. The fact that formal letter was not issued and appellant officiated against a higher post in pursuance of letter of G.M. hearing No.940-E/2361/5 (APO-V) dated 17-6-1995 which he held for number of years. It was for the respondents to issue a proper notification allowing appellant to hold additional charge of the Headmaster when he relieved Mr. Inayatullah the out-going Headmaster on 4-7-1995. Thus, the appellant has officiated in a higher post and dealing with higher responsibilities it would be unjust and unfair to deny the appellant any compensation for holding the said post. In view of this fact, we hold that the appellant should be allowed additional pay from the day he held the post i.e. post of Headmaster i.e. 4-7-1995.

6. Adverting to the second issue i.e. the date of the promotion of the appellant the record indicates that appellant was deferred for promotion due to want of A.C.Rs. of the years 1995 to 1998 which resulted in his deferment and promotion of two seniors and two juniors of the appellant vide respondent's order dated 18-4-2000 which inter alia reads as under:

"The Headmaster, P.R. Boys' Secondary, School/Karachi Cantt. Sub:- NOTIFICATION A copy of, G.M.(P)/LHR's letter No.847-E/Headmaster (APO-V), dated 12-10-99, is reproduced below for information and necessary action. (Sd.) 18-4-2000. For Divisional Superintendent, Pakistan Railways, Karachi. Copy of the letter as referred to above. Sub: As above. No.6/4/92-A.II.Approval of the competent authority under Rule 6 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 is conveyed as under:-- (a) Promotion of following four senior scale teacher to the post of Head Master (BS-17) in the Railway Managed School with effect from 16-10-1999: (i) Mr. Zafar Ali (ii) "Ghulam Muhammad (iii) " Muhammad Arshad (iv) Shabbir Ahmed Khan. (b) Deferment of Mr. Irshad Nabi Qureshi (c) No action in respect of Messrs Muhammad Azam and Zaheer Haris Durrani due to their retirement from Government Service. (Sd.) (Mahmood Hasan) Section Officer/Admn.II" The Appellant was however promoted w.e.f. 22-9-2000 vide notification dated 24-10-2000 which is reproduced as under:

"The Head Master, Pakistan Railways Schools, Karachi Cantt., MYP, KOT: Sub:- NOTIFICATION A copy of G.M.(P)/LHR's letter No. 847-E/6 (APO-V), 1ated 12-10-2000, is reproduced below for information and necessary action. (Sd.) 18-10-2000. for Divisional Superintendent, Pakistan Railways, Karachi. Copy of the letter as referred to above. Sub: AS ABOVE A copy of Notification No.3/4/2000-A.II dated 2-10-2000 of Ministry of Railways, Islamabad is reproduced below for information and necessary action. DA/As below (Sd.) (Sarshar Ahmed Khan), for General Manager/Personnel Government of Pakistan Ministry of Railways, Islamabad the 2nd October, 2000. NOTIFICATION No.3/4/2000-A.II. The competent authority under Rule 6 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, has approved the promotion of following Secondary School Teachers (Selection Grade BS-17) in the Railways Managed Schools to the post of Headmasters BS-17 on regular basis with effect from 22nd September, 2000. (1) Mr. Irshad Nabi Qureshi. (2) Mr. Abdul Latif. (3) Mr. Muhammad Riazuddin. (4) Mr. Gul Sahib Jan Khattak.

2. Mr. Iqbal Ahmed SST has been promoted as Headmaster BS-17 with effect from 3-3-2001 against vacancy likely to occur on retirement of Mr. Irshad Nabi Qureshi on 2-3-2001. (Sd.) (Arshad Salam Khattak) Deputy Director/Admn-II." Thus, the appellant has been denied his promotion which was due on 16-10-1999. The position of the rule is very clear that in the event of deferment appellant has to be promoted with effect from the date his next juniors were considered for promotion. Deferment of promotion, it may be recalled, is distinct from supersession. The fact that the Appellant was subsequently, promoted w.e.f. 22-9-2000 indicated that there were no adverse entries in his A.C.Rs. for the years 1996 to 1998 and, as such, it would be absolutely unjust and unfair to deprive him of promotion along with his juniors.

7. In view of this fact the appellant need to be, allowed promotion from the date his juniors were promoted i.e. 16-10-1999 on the principle of `next below rule'. As regard respondent's contention that he was already drawing the maximum of BPS-18 he would not be getting any monetary benefits. This position is m1t correct. If he is promoted from 16-10-1999 he would automatically get the benefit of move-over on 1-12-2000 which would entitle him to higher retirement benefits. Appellant's date of superannuation being 3-3-2001 he has definitely sustained monetary loss due to his unjustly delayed promotion which is his right and cannot be taken away.

8. In view of the above facts we hold that the appellant would be entitled to: (a) additional pay for the period he held the post of Head Master; and (b) promotion w.e.f. 16-10-1999 when his juniors were promoted. The appeal is accepted as above and respondents are directed to take necessary action to allow re-fixation of his pay and also his pensionary benefits as a consequence thereof. No order as to costs.

9. Parties be informed accordingly. H.B.T./34/FST Appeal accepted.