1991 PLP 396 (SCMR)
GOVERNMENT OF N.-W.F.P. through Secretary, Education Department, N.-W.F.P., Peshawar — Petitioner Versus ABDUL QADIR NASIM and others — Respondents
| Citation | 1991 PLP 396 (SCMR) |
| Forum / Court | High Court |
| Bench Members | Shafiur Rahman and Rustam S. Sidhwa, JJ |
| Parties | GOVERNMENT OF N.-W.F.P. through Secretary, Education Department, N.-W.F.P., Peshawar — Petitioner Versus ABDUL QADIR NASIM and others — Respondents |
| Primary Law | Constitution of Pakistan (1973) |
Q1: What are the key laws and sections cited in 1991 PLP 396 (SCMR)?
This judgment primarily cites: Constitution of Pakistan (1973) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 1991 PLP 396 (SCMR)?
The case was heard and decided by the High Court bench comprising: Shafiur Rahman and Rustam S. Sidhwa, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 1991 PLP 396 (SCMR) (GOVERNMENT OF N.-W.F.P. through Secretary, Education Department, N.-W.F.P., Peshawar — Petitioner Versus ABDUL QADIR NASIM and others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Mian Muhammad Ajmal, A.A.-G. with Haji MA. Qayyum Mazhar, Advocate-on-Record (absent) for Petitioner.
- Nemo for Respondents.
- Date of hearing: 22nd February, 1990.
- Mian Muhammad Ajmal, A.A.‑G. with Haji MA. Qayyum Mazhar, Advocate‑on‑Record (absent) for Petitioner.
- 3. The learned Additional Advocate‑General, N.‑W.F.P. has taken up two grounds in support of the Petition. Firstly it is contended that the instructions of the Federal Government as well as of the Provincial Government debarred the persons who were on leave abroad from seeking or obtaining promotion or seniority till they had joined or in fact earned good reports and gained promotion. The second ground taken up is that the respondent No.1 being absent and not functioning as Assistant Professor, could not be granted the benefit which was granted to others whose case was on that account distinguishable.
- 4. The first ground taken up by the learned Additional Advocate‑General suffers from two defects. Firstly the rules on which the reliance is being placed were not in force when the impugned orders were passed. They are of subsequent date and have no retrospective effect. Secondly, if any such principle of absentee and those on the job is applied, then on account of his absence, the respondent No‑1 should not have got promotion even in June, 1977, which promotion of the respondent No.1, the petitioner is not disputing. If he can be promoted when he was not in the country and was not in a position to function on the promoted post, then how could those two factors of not functioning being out of the country preclude his seniority being taken back to a date when his juniors started functioning and starting counting their service for seniority. The absence of the petitioner from the job, therefore, makes no difference in the context of his promotion.
Headnotes / Summary
(From the judgment of N.-W.F.P. Service Tribunal, Peshawar, dated 17-9-1989 passed in Appeal No.38 of 1987).
Art. 212(3)
Civil Servant having gone abroad, his juniors were promoted in his absence, alongwith him
Promotion date of civil servants junior was however. ante-dated but such ante-dating was refused in the case of civil servant
Service Tribunal, after examining circumstances in which civil servant had proceeded on leave, the effect of his undertaking and the rules applicable, gave him the same benefits as his juniors had obtained in the matter of seniority and he, therefore, became senior to those juniors, to whom he had become junior under the impugned orders
Petitioner-Government's plea was that instructions on the subject debarred those persons who were on leave abroad from seeking or obtaining promotion or seniority till they had joined or in fact had earned good reports and gained promotion; that civil servant being absent and not functioning on the promoted post could not be granted the benefit which was granted to others whose case was on that account distinguishable
Held; Rules on' which reliance was being placed were not in force when impugned orders were passed-- Such Rules being of subsequent date could not have retrospective effect
In case, principle of absence and those on job was applied, then on account of absence, civil servant should not have got promotion at all which he got on specified date, because he was not in the country and was not in a position to function on the promoted post
Absence of civil servant from the job, therefore, would make no difference in the context of his promotion
Rules then in existence required that those on deputation or leave ex-Pakistan should be considered for promotion, when their juniors were being considered for promotion, and promoted, even in absence
No question of law of public importance having arisen in the case, leave to appeal was refused.
Judgment & Decree
Nemo for Respondents. Date of hearing: 22nd February, 1990. SHAFIUR RAHMAN, J.‑‑‑The Government of N.‑W.F.P. seeks leave to appeal against the judgment of the Service Tribunal dated 17‑9‑1989 whereby the service appeal filed by the respondent No.1 was allowed and the respondent No.1 was given his proper seniority as Assistant Professor.
2. The respondent No.1 was Lecturer in the year 1973 when he proceeded abroad and returned to duty in July, 1981. In his absence his juniors were promoted and so was he. The promotion date of his juniors was ante‑dated to a date when they started functioning as Assistant Professors. Such ante‑dating was refused in the case of the respondent No.1, on the ground that he was not actually on the post and functioning as such. The Tribunal, after examining the circumstances in which he proceeded on leave and the effect of his undertaking and the rules applicable, gave him the same benefit as his juniors had obtained in the matter of seniority and he, therefore, became senior to those juniors, to whom he has become junior under the impugned orders.
3. The learned Additional Advocate‑General, N.‑W.F.P. has taken up two grounds in support of the Petition. Firstly it is contended that the instructions of the Federal Government as well as of the Provincial Government debarred the persons who were on leave abroad from seeking or obtaining promotion or seniority till they had joined or in fact earned good reports and gained promotion. The second ground taken up is that the respondent No.1 being absent and not functioning as Assistant Professor, could not be granted the benefit which was granted to others whose case was on that account distinguishable.
4. The first ground taken up by the learned Additional Advocate‑General suffers from two defects. Firstly the rules on which the reliance is being placed were not in force when the impugned orders were passed. They are of subsequent date and have no retrospective effect. Secondly, if any such principle of absentee and those on the job is applied, then on account of his absence, the respondent No‑1 should not have got promotion even in June, 1977, which promotion of the respondent No.1, the petitioner is not disputing. If he can be promoted when he was not in the country and was not in a position to function on the promoted post, then how could those two factors of not functioning being out of the country preclude his seniority being taken back to a date when his juniors started functioning and starting counting their service for seniority. The absence of the petitioner from the job, therefore, makes no difference in the context of his promotion.
5. As a matter of fact the rules then in existence required that those on deputation or leave ex‑Pakistan should be considered for promotion, when their juniors are being considered for promotion and promoted, even in the absence. It was subsequently that such cases came to be dealt with differently.
6. No question of law of public importance requiring our further attention arises in the case and leave to appeal is refused. A.A./G‑280/S Leave refused.