1995SCMR13 (PLP)

MUHAMMAD AFZAL LONE, J.‑‑‑This is an appeal through leave to appeal from the judgment of the Federal Service Tribunal, whereby the appellant's claim for grant of seniority in the Office Management Group w.e.f. 22‑7‑1985, was declined and his appeal against the Establishment Division's decision in this behalf dismissed.

2. The relevant facts are that the appellant belonged to I.S.I. Directorate, where he was working as an Intelligence Officer in BPS‑

17. He was promoted as an Assistant Director (BPS‑18) in his parent department on 7‑7‑1987. Subsequently, he was allowed seniority w.e.f. 22‑7‑1985, on the date when his immediate junior in I.S.I. Directorate was promoted. Earlier he was posted on deputation as Section Officer in the Interior Division, and later on vide Notification No.6/5/88‑OMG‑II dated 18‑12‑1989 he was transferred to the Office Management Group, wherein in pursuance of letter dated 16‑5‑1989 he was allowed seniority w.e.f. 7‑7‑1987. The appellant, however, claimed that since he was promoted to BPS‑18 in his parent department on 22‑7‑1985 he was entitled to have the seniority fixed in the Office Management Group from that date. The Establishment Division took the view that he was awarded promotion in BPS‑18 in his parent department. on 7‑7‑1987 and not w.e.f. 22‑7‑1985; though he was given seniority from that date, yet his seniority in Office Management Group could not be fixed on the basis of seniority in his parent department.

3. The Tribunal noticed that though the appellant was given seniority in I.S.I. Directorate with effect from 22‑71985 i.e. the date of promotion as Assistant Director, of the Intelligence Officer, junior to him, yet he was not granted promotion from that date. It was maintained that the date of his actual promotion was 7‑7‑1987 and thus the assignment of seniority to him in the Office Management Group from that date was correct. His appeal thus failed.

4. The stand taken up by appellant before the Tribunal has been reiterated before us, and it is vehemently argued that he was promoted to Grade‑18 in his parent department on 22‑7‑1985, and that being the date of his regular continuous officiation in Grade‑18 his seniority should have been linked up with that date. The contention that the seniority is to be fixed in accordance with the appellant's regular continuous officiation in Grade‑18, has some weight, but the question is, has he really been promoted on 22‑7‑1985. To substantiate his claim the learned counsel for the appellant has drawn our attention to the following "General Principles of Seniority" appearing at page 226 of the Estacode, 1989 Edition: "B. Departmental promotions.‑‑(i) Officers who are approved by the Selection Board/DPC for promotion to the higher grade on an earlier date shall rank senior to those who are approved on a later date, provided that‑‑ (a) an officer eligible for promotion who is inadvertently omitted from consideration in the original reference and is superseded, when he is subsequently considered and approved for promotions, he will take his seniority with the original batch; (b) When in a single reference, the Selection Board/DPC are asked to recommend more than one person and the recommendation of the Selection Board/DPC is held up in respect of one or more such persons for want of complete papers etc., or for reasons beyond the control of the persons concerned, the recommendation of the Selection Board/DPC in respect of such persons when made subsequently will be deemed to have been made on the date when the recommendation in respect of the original batch was made." The learned counsel's reliance on these instructions is not well founded. The instructions merely provide that when a civil servant is ignored by the DPC for want of his complete record or for slime other reasons beyond his control and is recommended subsequently, such recommendation would take effect from the date on which the original batch was recommended. It is obvious that the instructions make mention only of the `recommendation' and not the promotion. The promotion is made by the competent authority through a specific order, which is notified. There is no such order that the appellant was actually promoted on 22‑7‑1985.

5. In the course of his submissions, the learned counsel for the appellant also placed reliance on Syed Sultan Shah v. Government of Balochistan and another (1985 SCMR. 1394). The rule laid down by this Court in that case is that where a pro forma promotion is granted to a civil servant, he cannot be denied the salary for the higher post, because he is prevented from rendering service to the State in the higher post for no fault on his part. It is noteworthy that there is no order on the record granting pro forma promotion to the appellant, which in law implies the recognition of entitlement for promotion of the civil servant. The learned counsel has placed before us Ministry of Interior's Letter No.5/16/83‑Admn‑I dated 19‑6‑1991, which conveys the sanction of the President of Pakistan to count the period from 22‑7‑1985 to 7‑7‑1987 towards increments in BPS‑18, to enable the appellant to get his pay fixed on 7‑7‑1987 (i.e. the date of his actual promotion), at the stage which he would have reached had he been promoted on 22‑7‑1987. This fixation of the pay was allowed in terms of FR 26(c) without payment of arrears. Obviously under this letter neither pro forma promotion has been allowed to the appellant, nor sanction for payment of arrears accorded. There is absolutely no material on the record to warrant an inference as to the grant of pro forma promotion to the appellant w.e.f. 22‑7‑1985. The letter rather negates such a claim. Before us it has been conceded that the arrears have not been paid to the appellant, though it is asserted that his representation demanding arrears is pending. It is clear to us that the date of appellant's promotion to Grade‑18 is 7‑7‑1987 and not 22‑7‑1985. The opinion formulated by the Establishment Division in this respect, with which the Tribunal concurred, is not open to any valid criticism. This appeal has no merit. It is dismissed, but the parties are left to bear their own costs. AA./M‑2061/5???????????????????????????????????????????????????????????????????????? Appeal dismissed.