2004 PLP (C (PLC(CS))

Abdul Rashid Abbasi and Bashir Ahmad Mughal, Advocate Supreme Court for Appellant. Ghulam Mustafa Mughal, Advocate Supreme Court for Respondents No.4 and

5. Sardar Rafique Mahmood Khan, M. Tabassum Aftab Alvi, Ch. Muhammad Ibrahim Zia and Kh. Shahad Ahmad, Advocates Supreme Court for Respondent. Date of hearing 2nd November, 1999. SARDAR SAID MUHAMMAD KHAN C.J.‑‑‑This appeal has been directed against the judgment of the Service Tribunal dated 7‑9‑1998, whereby the appeal filed by the appellant, herein, was dismissed.

2. The brief facts giving rise to the present appeal are that the appellant, herein, and respondents Nos.4 to 6 were initially holding the posts of Junior Clerks and Storekeepers which were in B‑5 and were inter‑changeable. Subsequently, an amendment was made in the Azad Jammu and Kashmir Jail Establishment Service Rules, 1983, on 10‑10‑1992 (hereinafter shall be called as the Jail Establishment Rules? and vide entry 8(a) of the aforesaid rules, four posts of Senior Account Clerks, B‑9, were to be filled in by promotion from among the Junior Clerks and Storekeepers, both in B‑

5. However, the posts of Storekeepers were upgraded to B‑6 and thereafter to B‑7 in the year 1987. But the relevant rules, referred to above, remained unamended and the posts of Senior Accounts Clerks, B‑9, where filled in from among the Junior Clerks and Storekeepers irrespective of the fact that the posts of Storekeepers had been upgraded Thereafter, Mahmood Ali Shah, Storekeeper, Zubair Ahmad and Muhammad Akram, Junior Clerks, respondents, Nos.‑ 4 to 6, were posted on the newly‑created posts of Senior Accounts Clerks, B‑9, on different dates in their own pay scale. They continued to remain serving and afterwards they were approved on regular basis on the recommendations of the relevant Selection Committee. Subsequently, the appellant, herein, who was initially Junior Clerk and was subsequently appointed as Storekeeper on 11‑7‑1989 was also promoted on regular basis as Senior Accounts Clerk in B‑

9. However, the appointment of Mahmood Ali. Shah and Zubair Ahmad, respondents Nos.4 and 5, who were promoted earlier as Senior Accounts Clerks, B‑9 were given retrospective effect respectively from 9‑12‑199: and 28‑12‑1991 but so far as the appellant, herein, is concerned, it was mentioned in his order that his promotion would be effective from the as Senior Accounts Clerk, B‑

9. The appellant, herein,, feeling aggrieved, filed a departmental appeal to respondent No. 1, contending that he was also entitled to pro forma promotion as was .done in case of respondents Nos.4 and 5 from the back date because he was ignored and was not promoted as Senior Accounts Clerk, B‑9, despite the fact that the posts were available and the same remained vacant for quite some time. His departmental appeal and the appeal filed before the Service Tribunal were dismissed on the ground that respondents Nos.4 to 6 were promoted as Senior Accounts Clerks, B‑9, earlier in their own pay scales and had been performing their duties as such whereas 'the appellant was promoted much later. It may be observed that the post of the Storekeeper was upgraded first to B‑6 and thereafter to B‑7 and respondent No.4 was promoted to said grade whereas the appellant and the other respondents remained serving in grade B‑5, as Junior Clerks.

3. Mr. Abdur Rashid Abbasi, Advocate, the learned counsel for the appellant, has argued that admittedly under Jail Establishment Rules, both the Junior Clerks serving in B‑5 and Storekeepers in B‑5 were eligible for promotion as Senior Accounts Clerks, B‑9, because the relevant rules were not properly amended. Therefore, he has contended that while interpreting rule 8(a), which pertains to promotion as Senior Accounts Clerks B‑9, the expression 'Junior Clerk and Storekeeper B‑5', the condition of being in grade B‑5 should be ignored. He has argued that rule 8(a) was substituted in the relevant rules on 10‑10‑1992 when the post of Storekeeper had been upgraded and no post of Storekeeper in B‑5 was in existence. Column 6 of rule 8(a) should be interpreted to mean that both the Storekeepers and Junior Clerks were entitled to promotion as Senior Accounts Clerks B‑9, irrespective of the grade they were enjoying. The learned counsel has contended that the appellant was senior to respondents Nos. 4 and 5 because he joined service as Junior Clerks in B‑5 earlier to them The learned counsel has maintained that when respondents Nos. 4 to 6 were promoted to their own pay scales to the posts of Senior Accounts Clerks, B‑9, the appellant was ignored without any valid reasons despite the fact that out of four posts of Senior Accounts Clerks, only three were filled in and at least one post remained vacant for quite some time. The learned counsel has argued that respondents Nos.4 to 6 were promoted as Senior Accounts Clerks B‑9 in their own pay scales, despite the fact that the relevant rules did not envisage such a promotion as had been held by this Court in a number of cases. Therefore, according to the contention of the learned counsel for the appellant, when the appellant was promoted as Senior Accounts Clerk, his promotion should have been given retrospective effect as was done in case of respondents Nos.4 to 6 but the appellant was discriminated against and his promotion was made effective from the date when he joined as Senior Accounts Clerk B‑

9. The learned counsel has argued that if a civil servant is, deprived of promotion despite the fact that the post was available and he was‑also eligible to the promotion, he is entitled to notional promotion. Thus, according to the learned counsel, the Service Tribunal has committed an error in dismissing the appeal filed by the appellant merely on the ground that he was not promoted as Senior Accounts Clerk in his own pay scale as was done in case of respondents Nos. 4 to

6. The learned counsel has argued that whether a promotee occupied the post or not, he would be entitled to notional promotion if he was eligible and the vacancy was available but he was not considered for promotion with no fault on his part. The learned counsel has also submitted that if any separate seniority lists were prepared by the department, those were of no consequence because the rule do not fix quota for promotion‑from Junior Clerks and Storekeepers. Thus, even if there are any different seniority lists, those would not be relevant for deciding the matter as to whether the appellant was entitled to retrospective promotion or not. He has further argued that the question of seniority is not before this Court. Rather the question is as to whether the appellant, herein, was ignored of promotion as Senior Accounts Clerk, despite the fact that there was a vacancy and he was qualified to be promoted. The learned counsel has further argued that in case of direct recruitment, the notional promotion cannot be given if the incumbent of a post was not in service at that time but this does not hold true in case of promotees. The learned counsel has cited unreported case of this Court entitled Sardar Sabir Hussain Khan Abbasi v. Azad Government [Civil Appeal No. 16 of 1999 decided on 14‑5‑1999) and the cases reported as Professor Dr. Raja Muhammad Ayub Khan v. Azad Jammu and Kashmir Government 1990 MLD 1283, Kabir Ahmad Khan v. Government of Punjab (1990 SCMR 1417) and Saleem Ullah v. Government of Pakistan 1995 SCMR 1865 in support of his contentions. The learned ‑counsel has submitted that he does not seek any relief against Muhammad Akram, respondent.

4. In reply,, Mr. Ghulam Mustafa Mughal, Advocate, the learned counsel for the respondents, has controverted the arguments advanced on behalf of the appellant. He has submitted that respondent No.4 in grad B 7 was already holding the post of Storekeeper when he was appointed as Senior Accounts Clerk, in his own pay scale. Thus, according to the learned counsel, he has rightly given preference for his promotion to the appellant, herein, Similarly, he has contended that as respondents Nos.5 and 6 were promoted as Senior Accounts Clerks, B‑9, in their own pay scales, they were entitled to notional promotion which was given to them but the appellant claims the notional promotion when he was not holding the post of Senior Accounts Clerk, B‑9.

5. We have given due consideration to the arguments raised at the bar. It may be stated here that precise question before this Court is that the appellant, herein, was not given notional promotion while respondents Nos.4 to 6 were given the same merely on the ground that they were promoted to the said posts in their own pay scales. It may be observed there that this Court has repeatedly held that there is 'no rule for promoting a person in a higher grade in his own pay scale. The mere fact that respondents Nos.4 to 6 were given retrospective promotion because they were holding the posts of Senior Accounts Clerks would not justify to deny the same to the appellant, The perusal of the case‑law reveals that if a post was in existence and a civil servant was eligible for promotion but he was ignored with no fault on his part, his case of notional promotion can be considered. In the instant case, respondents Nos.4 to 6 have been given retrospective promotion but the same was denied to the appellant, herein. Obviously, the denial to give retrospective effect to the promotion of the appellant, herein, is not legally justified. Rule 8(a) of the rules, which was introduced by an amendment, was not correctly framed because according to it, the Junior Clerks and Storekeepers, who previously were both in grade B‑5, were to be promoted as Senior Accounts Clerks in grade B‑9, whereas the post of Storekeeper B‑5 would be deemed to have been abolished when the same was upgraded to grades B‑6 and B‑

7. However, the contending parties have already been promoted as Senior Accounts Clerks grade B‑9, as has been indicated above, and their promotions have not been challenged therefore, irrespective of the fact that the aforesaid rule was not properly framed, the same would not affect the merits of the present appeal. However, it may be observed here that Mahmood Ali Shah, respondent No.4 who earlier was serving as Storekeeper in grade B‑5; was promoted to grade B‑7 as a result of upgradation of the post in the year 1988. Therefore, the ante‑dated promotion of the appellant would not adversely affect his promotion.

6. Next, the question which needs resolution is as to whether it is legally necessary to direct the Appointing Authority of the parties to consider the question of ante‑dated promotion of the appellant, herein, or he should be given the said relief by the Court in the present appeal. It may be observed that ordinarily the question of ante‑dated promotion is to be considered by the. Appointing Authority but in the circumstances of the present case, ‑the parties have been litigating for quite some time and they have already been promoted as Senior Accounts Clerks grade B‑9, it would be an exercise in futility to give said direction to the Appointing Authority. Thus, we are of the view that it is in the fitness of things if the said relief is given to the appellant, herein, by this Court itself. In the light of what has been stated above, we accept the appeal and direct that the promotion of the appellant, herein, shall take effect from 28‑12‑1991, the date from which the promotion of Zubair Ahmad respondent No.5, was given retrospective effect. In the circumstances of the case, we make no order as to the costs. H.B.T./12/SC (AJ&K) Appeal accepted.