2013 PLP (C (PLC(CS))

TASSADUQ HUSSAIN JILLANI, J.

Through this petition, leave is sought against the judgment dated 31-1-2011 passed by the learned Punjab Service Tribunal vide which petitioner's appeal was dismissed with the observation that the Competent Authority in Services and General Administration Department should consider petitioner's case for promotion as he has remained in pay scale BS-17 for a period of 30 years.

2. Facts in brief are that petitioner while serving as Assistant Director/Regional Manager in BS-17 in the Directorate of Manpower and Training Punjab was given various assignments in BS-18 on current charge basis. However, since 31-5-1994 the current charge was not extended. The grievance being voiced in his appeal before the Service Tribunal was that he be granted pay for the higher post from the year 2001-2007 and that he should be considered for promotion with effect from the date when the post in the higher grade fell vacant.

3. We have heard learned counsel for the petitioner and learned Law Officer at some length.

4. Though the petitioner was inducted into service in BS-17 in the Directorate of Manpower and Training Punjab through Punjab Public Service Commission (on 31-5-1980) but vide order dated 25-10-1992 he was promoted as Deputy Director in BS-18 on current charge basis for a period of six months. It is not denied that the said period was extended upto 31-5-1994. On the abolition of Employment Exchanges in Punjab in terms of notification dated 29-5-1994 he along with other officers was rendered surplus and in terms of the order dated 2-6-1994 passed by the Director Manpower and Training, Punjab he was directed to report to surplus pool of S&GAD. He continued to be treated as Deputy Director in BS-18. However, on 17-8-1999 he was posted as Under Secretary in Local Government and Rural Development Department. However, on 19-3-2007 Additional Chief Secretary, Government of Punjab transferred him and posted him as Section Officer, Commerce and Investment Department and he was placed in BS-17 officer of the surplus pool of S&GAD Department. It is not denied that when he was promoted as Deputy Director in BS-18 on current charge basis he was eligible for promotion to the said scale and even vacancies were available. It is further not denied that he was continued to be treated as BS-18 officer even as Under Secretary in Local Government and Rural Development Department which post he held till 17-8-1999. He was also granted move-over to BS-18 with effect from 1-12-1991 vide the order dated 1-5-1993 of the Secretary Labour and Manpower Department. The argument of learned Law Officer that his promotion as Deputy Director (BS-18) on current charge basis was a mis-description and as a matter of fact it was appointment, is an afterthought which is evident, firstly, from the fact that he retained the said scale till 19-3-2007 when he was posted as Grade-17 officer (Section Officer, Commerce and Investment Department) and accordingly, he was granted move-over to BS-18 as far back as 1-5-1993 and that too with effect from 1-12-1991. It is also not denied that when he was promoted to BS-18 on current charge basis, vacancies in the said scale were available and petitioner was qualified. In Government of N.-W.F.P. v. Buner Khan (1985 SCMR 1158) in almost similar circumstances the appeal was allowed and it was directed that the officers shall be considered for promotion to Grade-18 post with effect from the dates when vacancies in their quota became available and thereafter a joint seniority list, was directed to be issued. Similarly in Islamic Republic of Pakistan v. Abdul Karim, Deputy, Accountant General, N.-W.F.P. (1978 SCMR 289), this Court upheld the judgment of the Service Tribunal which had directed that the employee promoted to officiate in a higher post involving higher responsibility was entitled to minimum pay of grade of higher post. In Abu Saeed v. Government of N.-W.F.P. (1990 SCMR 1623), leave was granted to consider two issues, which are as under:-- "(i) Whether the promotion of the respondents could be ante-dated to the vacancy occurring in Grade-18 and reserved for promotion? (ii) Whether reversion of the appellants from Grade-19 to Grade-18 was not in violation of the principles of the natural justice and against the decision already rendered by the Tribunal in service appeals inter partes?"

5. The Court while upholding the judgment of the Service Tribunal held as follows:-- "

6. As regards the legal question whether the promotees could be considered and appointed on a promotion post not from the date of their selection or appointment or taking over of the appointment; but from the date when the vacancies occurred, the decision of the Supreme Court rendered inter partes is final and binding. There is no going back or questioning that decision. Hence the appellants cannot dispute the proposition. The only question that could be agitated is that the promotees were not eligible when the vacancies occurred and on being considered for promotion they could not be declared eligible for promotion. That, however, is not their case. The eligibility of the promotees for promotion on the date when the vacancies occurred for promotion quota has not been challenged upto now at any stage."

6. For what has been discussed above, this petition is converted into appeal and partly allowed and it is directed that the petitioner shall be considered for promotion to Grade-18 post with effect from the date when the vacancy occurred provided he was qualified to be considered for the same. MWA/K-7/SC Petition allowed.