1990 PLP 1692 (SCMR)

SHAFIUR RAHMAN, J.‑‑‑Leave to appeal was granted under Article 212(3) of the Constitution to the appellant to examine whether the Federal Service Tribunal was legally empowered to give a direction in terms that the respondent, a civil servant, `shall be deemed to have continued in N.P.S.49 after his reversion from the Northern Areas with all consequential benefits', in the context of the admitted fact that he was not regularly promoted to N.P.S.‑19.

2. The respondent was serving in the Federal Government in the Education Department and was enjoying Selection Grade Headmaster (N.P.S.‑18) with effect from 1‑6‑1970. While fully qualified and eligible for the higher grade (N.P.S.‑19), the respondent was not promoted to that post but instead given current charge of the higher post from 16‑9‑1975 to 3‑5‑1976 and he was in the interregnum recruited directly in N.P.S: 19 for service in the Northern Areas. After his return from the Northern Areas, he was again put on current charge of higher post or sent out of the department to serve the Federal Board of Intermediate and Secondary Education, Islamabad in N.P.S:

18. Firstly, he claimed that being fully qualified, he was required to work against N.P.S.‑19 post therefore, the period that he worked on N.P.S.49 post should be taken to be full charge and not current charge and he be paid accordingly. The second basis for his claim was that Dr. S.M. Ahmad who was junior to him had been allowed to remain in N.P.S.49 under one arrangement or the other throughout while he had been shunted out to other post in N.P.S.‑

18. The third ground taken up was that the name of the respondent was thrice submitted to the Departmental Promotion Committee alongwith that of the others but was withdrawn on one ground or the other with a view to harm the respondent.

3. The Tribunal examined these grounds and noted as hereunder:‑‑ "The representative of the Establishment Division confirmed that the name of the appellant was included in the list of those to be considered for promotion for consideration by the Departmental Promotion Committee at two different occasions i.e. on 6‑11‑1982 and 21‑3‑1983. His name was withdrawn by the respondent‑department on both the occasions before it could be considered. The respondent‑department did not give any reason while requesting for withdrawal of the name of the appellant. The learned counsel for the respondents was also unable to explain the circumstances which may have compelled them to withhold the name of the appellant from consideration by the D.P.C. on both the occasions. It also remained rather unexplained as to why the appellant could not be appointed as Director of Education F.G.E.1., Islamabad as stated in the D.O. letter dated 24th February, 1979 requesting for the reversion of the appellant from the Northern Areas. 1n our opinion it is amply clear from the above discussion that the seniority and efficiency of the appellant were never objected to by the respondent‑department at any stage. In fact, it is a case where we have to presume that the respondent‑department took arbitrary decision to withdraw the name of the appellant from the D.P.C. and, therefore, is directly responsible to withhold his promotion which was due to him on all counts. The appellant has suffered for no fault of his and for unknown reasons beyond his control. It can be safely said that if his name was considered by the D.P.C., the appellant would have been approved for promotion."

4. The respondent reached the age of superannuation on 24th of January; 1987. The Tribunal while granting him the relief that `he shall be deemed to have continued in N.P.S.‑19 after his reversion from the Northern Areas with all consequential benefits', expressed the hope that it will be possible to finalize the case within three months.

5. We asked the learned Deputy Attorney‑General at the first hearing to complete the record of postings and transfers in order to reflect the correct position and so as to assist determination of the rights and liabilities arising thereunder. The learned Deputy Attorney‑General has taken two adjournments to complete the assignment, and he has done so. He has also brought to our notice two orders by which the respondent had been allowed N.P.S.‑19 pay for the current charge period from 1‑4‑1979 to 13‑11‑1979 and from 16‑8‑1981 to 16‑11‑1983.

6. It has been admitted by the learned Deputy Attorney‑General that Dr. S.M. Ahmad, Principal, Federal Government College, was junior to the respondent but was allowed N.P.S.‑19 and has continued to enjoy it from 7‑4‑1979 as he was not reverted from that post on any ground.

7. We find that on the findings of the Tribunal the respondent's case was handled perversely and mala fide in a manner to deprive him of N.P.S.‑19 though his junior was allowed. On this finding of fact we would rather allow the principle of next below rule to be applied to the case of the appellant and grant him the entitlement of N.P.S.‑19 pay as from 7th of April, 1979 till his junior enjoyed it or the respondent himself retired from service. The Government having itself granted him the benefit from 1‑4‑1979 to 13‑11‑1979, he will be further entitled to the same benefits as from 14‑11‑1979 till the date of his retirement or as long as his junior enjoyed it, whichever happened earlier. With this modification the appeal is dismissed with no order as to costs. A.A./F‑179/S?????????????????????????????????????????????????????????????? Order accordingly.