1993 PLP (C (PLC(CS))

MUNAWAR ALI KHAN (CHAIRMAN).‑‑‑Appellants, Haider Abbas Rizvi and Mubarak Hussain had respectively filed Appeal No 62/84 and Appeal No.64/84 which were dismissed by this Tribunal by common judgment dated 11th March, 1987. The appellants challenged the said judgment before the Supreme Court, which was allowed and the original appeals were remanded back to Tribunal for decision according to law and cm merits whether there was any justification for cancellation of promotion of the appellants vide Supreme Court's judgment dated 2‑12‑1991. For compliance the judgment of the Supreme Court, notice was issued to the parties and the learned Counsel were heard afresh excepting appellant Mubarak Hussain who being un-represented, by and large adopted the same arguments made by the learned Counsel for the appellant Haider Abbas Rizvi. We also glanced through the relevant documents.

2. To recapitulate the appellants' case, it may be noted that both the appellants were Govt. High School teachers in G‑16, when they were transferred and posted as Head Masters in their own pay and grade: Haider Abbas was transferred from Govt. Boys Secondary School, Drigh Colony, Karachi to Govt. Boys Secondary School, Korangi Creek, Karachi, vide order dated 5‑9‑1981 and Mubarak Hussain was transferred from Govt. Boys Secondary School to Govt. Boys Secondary T and T Colony, Karachi, vide order dated 1‑9‑1981. Subsequently on recommendations of the Departmental Promotion Committee they were promoted as Head Masters in G‑17 by order dated 1st February, 1982. Three days later the appellants' promotion along-with some other promotions were kept in abeyance. Subsequently by notification dated 16th February, 1982, promotion of seven teachers, including the promotions of the two appellants were cancelled, though the rest of the promotion made along with their promotions were restored. Despite the cancellation of the appellants' promotions they were allowed to continue as Head Masters in G‑17 until 12th March, 1984 when once again following the clearance of the Departmental Promotion Committee, they were promoted as Head Masters vide Notification dated 12th March, 1984. The appellant's grievance was that they should have been given promotion retrospectively from 1st February, 1982 when they were first promoted. The appellants' above claim was rejected by this Tribunal vide its previous judgment dated 11th March, 1987. It may be pertinent to reproduce the relevant portion of the said judgment as under:‑ "We go along-with the thinking of the learned A.A.‑G. that as soon as their earlier promotion was cancelled, they obviously got aggrieved by the cancellation, particularly when no reason was assigned for such action. However they remained quiet and did not take any step to agitate against the cancellation of their promotion???????.. The cause of action accrued to the appellants when their earlier promotion was cancelled. They should have challenged that order, first in the departmental appeal and then before the Service Tribunal. However, they took neither of the steps but chose to accept the order quietly. In these circumstances the impugned order of 12‑3‑1984 by which the appellants have on the contrary been promoted cannot be held to have aggrieved them. Accordingly the said order does not provide any cause of action to them ..........................................................

3. The learned counsel appearing for Government side in the Supreme Court supported the judgment of this Tribunal, contending that the appellants had not challenged the cancellation of their earlier promotion either in Departmental Appeal or before the Service Tribunal. Despite his arguments, the Supreme Court while granting leave for appeal, made the following observations: "Notice had issued to the Advocate‑General to inform the Court as to what were the circumstances calling for the unusual and exceptional method adopted for, at first holding in abeyance the promotion and then revoking it. He has not been able to produce any material on the subject. In the absence of it, if the first notification dated 1‑2‑1982 was competent and proper, the right of revocation could not be exercised without cause and without notice. The date of promotion could not but for good reasons be altered. The appeals before the Tribunal against the order dated 12‑3‑1984 were in proper time and portion of that order was being challenged. We consider that the question of limitation in its background requires an authoritative pronouncement because the cases in hand may not be the cases barred by limitation or requiring a condonation of limitation." At another place of its judgment, the Supreme Court was pleased to observe as under:‑‑ "However we are of the view that no useful purpose will be served by taking technical objections by either side. As remarked in the leave granting order, the anxiety is to find out whether there was any justification for canceling the earlier order of promotion, particularly when appellants were recommended by the Departmental Promotion Committee at the time of first promotion and on the second occasion also they were recommended by the same Committee and secondly in the meantime they were allowed to continue on the same posts. In these circumstances in order to do substantial justice in this case we set aside judgment of the Service Tribunal and remand the appeals back to the Service Tribunal for decision according to law and on merits whether there was any justification for cancellation of the promotion of appellants as remarked in the leave granting order."

4. It would appear that the learned Supreme Court did not approve the dismissal of the appellants' appeals merely on technical grounds that the appellants did not challenge the cancellation of their promotion in time at any forum when actually the cause of action had accrued to them. As disclosed in its judgment herein above the learned Supreme Court has required the Service Tribunal to decide the appeals on merits and find out if there was any justification for cancellation of promotion of the appellants. No doubt when they were promoted for the first time on 1st February, 1982, their promotion was based on the recommendations of the Departmental Promotion Committee, which in other words meant to say that they were found fit for promotion. Three days later their promotion like other promotions were kept in abeyance and after a fortnight or so the appellants' promotion were cancelled, though most of stayed promotions were restored. If the appellants were promoted on their turn against the existing vacancies, the Departmental Authorities, were put to heavy responsibility to explain the justification of the cancellation of the appellants' promotion. Of course the promotion could not be claimed as a matter of right as per countless authorities of the superior Courts, yet if it was once implemented, the promotee could not be taken by surprise by depriving him of the benefit of the promotion without putting him to notice. No doubt a civil servant holding an officiating promotional post could be reverted to his original position without giving him any notice. But that was not the case here. Cancellation of promotion as in the present case and reversion from promotional post are different situations with totally different backgrounds and therefore cancellation of promotion should not be confused with reversion from promotional post so as to disentitle the affected party to show‑cause notice. After the appellants' promotions were duly gazetted, they stood implemented. Therefore it was necessary to inform the appellants the reasons for cancellation of their promotion. But no such notice appeared to have been given to them. Apart from above searching enquiry was made not only from the learned counsel representing the official respondents but also from their departmental representatives who had come to assist their own counsel. In reply to our query as to how many vacancies of G‑17 existed on 1‑2‑1982 when appellants' promotion was made for the first time, the learned Government counsel with assistance of the aforesaid departmental representatives stated that in all 22 vacancies were available from which 15 belonged to Government cadre and 7 were of Nationalised cadre. To another question as to how the said vacancies were filled, the reply came that 15 persons from Government cadre and 7 from Nationalised cadre were promoted against the said vacancies. When further question was put to the Government side as to why the appellants' promotion was cancelled, they replied that it was on objection of the delegation of teachers of Nationalised cadre whose contention was that some of the Government cadre teachers were occupying the posts of Nationalised cadre. It was however admitted that the so‑called delegation did not file their objection in writing. Moreover their objection was untenable. Since all the 7 vacancies in the Nationalised cadre and 15 vacancies in the Government cadre existing at the time of first promotion, were filled simultaneously from amongst the respective cadres, the question of teachers of Government cadre still occupying the posts of Nationalised cadre would not rise because in that case the equal number of teachers of the Nationalised cadre would be holding the posts of Government cadre.

5. In any case the appellants who belonged to Government cadre were admittedly holding the Head Masters' posts also of the Government cadre. Who else was occupying the posts of Nationalised cadre, neither the Government Counsel nor the Departmental representatives were able to tell us. It was also an admitted position that despite the objection to the appellants' promotion, they continued to serve as Head Masters until they were ultimately promoted in the said posts in 1984. Their uninterrupted continuation in the higher posts clearly indicated not only the availability of these vacancies but also the seniority of the appellants to continuously hold them in their own pay and grade. Had the position been different they would have surely been reverted to their lower G‑16 posts immediately following the objection to their promotion. But no such step was taken, until they were ultimately promoted in the said posts. Apart from above, a question was put to the Government side as to why the appellants were not promoted retrospectively when their promotion for the second time was notified particularly when they had continuously worked in the promotional posts. The Departmental representative came with a reply which was far from satisfactory. According to him they were denied the benefit of promotion from retrospective date in view of the authorities cited in support of the reply. The authorities were (i) 1975 PLC (CS) 5 and (ii) 1968 SCMR

848. In view of these authorities appellants were of course not entitled to claim the date from which they were inducted present case was obviously distinguishable from the above reported cases in that the appellants have not claimed their promotions from the date of their first promotion as matter of right but the learned Supreme Court has required to Service Tribunal to ascertain if there was any justification for cancellation of the appellants' first promotion. ?

6. In view of above discussion we are inclined to the view that the Government side was unable to convince us that there was any justification for cancellation of the appellants' first promotion. Moreover it was clear from the Departmental reply in writing dated 15‑10‑1992 that had the authorities cited herein above not stood in the way, the Department had obviously no objection to notify their promotions from the retrospective date i.e. 1st February, 1982. As has already been held that the said authorities did not pose any hurdle in the department's way and therefore, the Department could allow them promotion from the date of their first promotion.??????

7. For above reasons the appeals are accepted with nip order as to costs and it is directed that the appellants' promotion to the Head Masters posts in G‑17 shall take effect from 1st February, 1982 as prayed by them in their appeals.??????????? A.A./394/Sr.S????????????????????????????????????????????????????????????????????????? ??????????? Appeals accepted.