1999 PLP (C (PLC(CS))

3. In the seniority list circulated by respondent No. 1 on 21‑3‑1985 the appellant figured at Serial No. 10 above the name of Riaz Ahmad respondent No.

3. In the meantime, minor penalty of withholding of one increment with cumulative effect was imposed on him by order dated 21‑4‑1983 in consequence of disciplinary proceedings.

4. In the meantime it is alleged that the appellant was falsely involved in the disciplinary proceedings but the allegations were not proved, still the then Deputy Director, State Bank Circle, by illegally detaining the appellant in orderly room and by exercising coercion, duress and threats obtained resignation from him on 24‑4‑1985 which was also accepted by him on the same date. Against this illegal acceptance of resignation, the appellant after exhausting departmental remedy, filed Appeal No.231/L of 1985 before the During the pendency of the appeal the Deputy Director, F.I.A., State Bank Circle, Lahore, submitted his comments on behalf of respondents Nos.l and 2 indicating therein that the resignation of the appellant was obtained after detaining him in a room. In consequence of departmental investigation conducted during the pendency of the appeal, the appellant was reinstated in service as Head Constable vide order dated 7‑5‑1987 by the respondent No.2.

5. The appellant made representation for counting the period of his removal from service and reinstatement towards seniority and for financial benefits, In consequence, through office order dated 29‑4‑1989 the period from the date of resignation i.e. 23‑4‑1986 to 10‑5‑1987 was treated as the period spent on duty also countable towards annual increment and other matters. The appellant also qualified the Intermediate Course from P.T.C. Sehala in the year 1989 and obtained 6th position out of 280 candidates. It may be pointed out that after his reinstatement the appellant was sent for training for the first time and had cleared it with distinction. During the absence of the appellant from service due to illegal acceptance of resignation, respondents Nos.3 to 16 were promoted as Assistant Sub‑Inspectors. Respondent No.3 who was the first junior to the appellant was promoted as A.S.‑I. on 15‑11‑1987 but the case of the appellant was not considered. The case of the appellant for promotion as A.S.‑I. was taken up by respondents Nos.1 to 2 and was cleared by the Departmental Promotion Committee where after through office order dated 11‑5‑1992, the appellant was promoted as A.S.‑I. with effect from 11‑5‑1992. The appellant was adjusted and posted as A.S.‑I. vide office order dated 18‑7‑1992.

6. The appellant made a representation for giving him pro forma promotion and seniority over and above respondents Nos.3 to

16. Since respondents Nos. l and 2 did not decide his representation within 90 days the appellant filed Appeal No.280‑L before the Tribunal on 9‑12‑1992. Respondents Nos. 1 and 2 filed their joint comments. The appeal was heard by the Tribunal and vide order dated 21‑4‑1993, the said respondents were directed to decide the appeal of the appellant within 3 months. 7. "The appellant, feeling aggrieved filed appeal before the Tribunal narrating the facts afore noted, for the annulment of the impugned order dated 15‑8‑1993 and seeking issuance of direction to the official respondents to consider the appellant for promotion from 15‑11‑1987 as A.S.I. with all consequential benefits of seniority and next promotion to the rank of Sub‑Inspector from the date when respondents 3 to 12 had been promoted".

8. The plea of the appellant for maintaining his original seniority was repelled by the Tribunal on two‑fold grounds, firstly that during the period the appellant remained out of service the Head Constables, who were originally junior to the appellant not only became eligible for promotion but were also promoted from time to time on their turn and, secondly, treat "the appellant had not passed the Intermediate Training Course from Sehala which was essential for promotion to the rank of A.S.I." The Tribunal further held the view that on appellant's reinstatement as Head Constable in May, 1987 "he was deputed for training at P.T.C. Sehala in the term commencing from 24‑3‑1989 which ended in September, 1989". It was lastly observed that no D.P.C. was held during 1989 to 1991; that "the appellant was approved for promotion in the D.P.C. held in May, 1992 and was promoted as A.S.I. with effect from 11‑5‑1991 and, therefore, he was entitled to count his seniority as A.S.I. from 11‑5‑1991." His appeal was, thus, dismissed on 28‑11‑1993 by the Tribunal.

9. The appellant, feeling aggrieved, sought leave to appeal against the dismissal of his appeal.

10. Leave to appeal was granted under Article 212(3) of the Constitution to examine whether the appellant was entitled to pro forma seniority as A.S.I. for the period during which he was kept out of service under coercion and duress by manipulating his resignation and he having been reinstated treating the absence on duty, as it was disturbed by an illegal act of respondents Nos. 1 and 2 without any default, or negligence committed by him.

11. The contention of the learned counsel for the appellant in substance is that the appellant having been kept out of service under coercion duress and manipulation of his resignation and having been reinstated and having qualified the P.T.C. Course with distinction when he was deputed, therefore, he could not be denied his due seniority and consequential benefits.

12. The learned counsel for the private respondents has reiterated the reasoning, which had found favour with the Tribunal. In this context reference was made to the requirement of passing of the Intermediate course from P.T.C. Sehala, which was a sine qua non for promotion to the rank of A. S. I.

13. It is, however, disquieting to note that the Tribunal had ignored the long chain of its own authorities laying down the law that a civil servant after clearance from enquiry is entitled to have his original seniority restored S vis‑a‑vis officers junior to him who had, in the meanwhile, been promoted during the period of his suspension or during the period he had been kept out of his service by the wrongful act of the Departmental Authorities. Reference may be made for (1) S.A. Rashid v. Chief Settlement and Rehabilitation Commissioner (1981 PLC (C.S.) 615). (2) Junejo Muhammad Iqbal v. Government of Pakistan and 59 others (1982 PLC (C.S.) 784), (3) Muhammad Anis Qureshi v. Secretary, Cabinet Secretariat Establishment Division, Rawalpindi (1985 PLC (C.S.) 300), (4) Rauf Alimad v. Secretary to Government of Punjab Communication and Works Department and 50 others (1984 PLC (C.S.1 287), (5) Aman Ullah Khan v. Inspector‑General of Police, Punjab, Lahore and 2 others (1986 PLC (C.S.) 968), (6) Riaz Ahmad Khan v. Superintendent of Police. Sheikhupura, etc. (1984 PLC (C.S.) 1182) and (7) Fazal Mahood v. Secretary, Kana Division, Islamabad and others (1996 PLC (C.S.) 458).

14. No doubt the contention of the learned counsel for the respondents with reference to his late passing of Intermediate Training Course from P.T.C., Sehala may be generally acceptable. It cannot, however, be pleaded for justifying a wrongful and highly regrettable act of omission or commission of the Departmental Authority. In almost similar factual background in Sayed Sultan Shah v. Government of Balochistan and another (1985 SCMR 1394) this Court had accepted the claim of the appellant observing as follows:‑‑ "Undoubtedly, this is the general law which must prevail in most of the ordinary cases. However, it cannot be invoked or pressed into service for justifying or partly justifying a wrongful act. The Courts will not permit the denial of the benefit, if it is found or is traceable to the wrongful act of the party itself. The effect of promotion is to recognize the fact that the official concerned was entitled to be promoted from a date in the past, that he was wrongfully deprived of it that the wrong must be redressed by giving him pro forma promotion and his due seniority a date in the past. The logical consequence of it is that all the ancillary benefits which follow the ante‑dating of the promotion and seniority must be allowed to the official concerned unless, of course, there appears ex officio some justification for denying him such a benefit. The impugned order passed by the Board of Revenue does not disclose any such justification or basis for depriving him of his remuneration in the higher grade. None is discernible from the record either."

15. We regret to observe that the Tribunal has put a stamp of approval on the highly prejudiced view of the competent Authority when the approval for promotion of the appellant was accorded by the competent Authority with effect from 11‑5‑1991 although without any fault of the appellant, the D.P.C. was not held during the period from 1989 to 1991. It is very strange that if the D.P.C. is not held for more than two years by the competent authority, even then the appellant was made to suffer. This fact has also been ignored by the Tribunal which cannot be sustained on any equitable consideration.

16. We have been able to lay our hands on the authorities reported as Islamic Republic of Pakistan v. Abdul Qadir Hayee and others (1981 SCMR 501) and Inspector‑General of Police v. Ashfaq Ahmad and others (1983 SCMR 34) which are almost parallel to the case in hand. In the case of Abdul Qadir Hayee (supra) it was held that while posted as Superintendent of Police he was suspended and removed from the Police Group. Subsequently, he was reinstated and brought back to the Police Group with his old seniority. However, during the period he had remained under suspension and kept out of Police Group, a number of Superintendents of Police, who were junior to him, had been promoted as D.I.‑Gs. He claimed that he should also been promoted as D.I.‑G. from the date of promotion of his juniors. His request was not acceded to. He went in appeal before the Tribunal which accepted his appeal and directed that he would be considered to have been promoted as DIG from the date of promotion to his juniors. The decision of the Tribunal was challenged before this Court. The learned Judges of this Court‑who were seized of the matter upheld the judgment of the Federal Service Tribunal. In the case of Ashfaq Ahmad, the Tribunal accepted the appeal holding that he would be deemed to be admitted in the List 'F' from the date his next juniors were so promoted/admitted in that List as it was a case of sheer discrimination, on the part of the respondents. The Inspector‑General of Police (Punjab) came up in appeal in this Court but the decision of the Tribunal was upheld with the observation that such like discriminations cannot be permitted and that the decision of the Tribunal to the effect that the appellant would be deemed to have been admitted to List 'F', with retrospective effect was considered valid as well as justified.

17. The cases of Abdul Qadir Hayee and Ashfaq Ahmad (supra) decided by the Tribunal and upheld by this Court are fully applicable to the facts of the case of the appellant before us. We fail to understand as to why the appellant has been denied relief which has been extended to his junior respondent No.3. The objection of the private respondents that the appellant had passed the Intermediate Course from P.T.C., Sehala, long after their passing the said Course is again of no avail to them. He had been prevented from attending the said Course earlier than or with the private respondents by an act of commission of the official respondents which suffers from legal infirmity of the highest order besides violating the equitable principle of D natural justice. .

18. In view of our finding rendered above, the appeal is allowed and the impugned judgment dated 2‑2‑1994 of the Federal Service Tribunal is set aside. The period commencing from 23‑4‑1985 to 10‑5‑1987 when the appellant remained out of service on account of forced resignation shall be counted towards his seniority and he would be given promotion with effect from 9‑9‑1989 as A.S.I. and not with effect from 11‑5‑1992 i.e. from the date on which he passed the qualifying examination with all consequential benefits of seniority and next promotion to the rank of Sub‑Inspector from the date when respondents 3 to 12 were promoted.

19. The appeal was accepted by our short order dated 12‑6‑1998 in the above terms. The above are the reasons for our doing so. M.B.A./M‑200/S Appeal accepted.