1984 PLP (C (PLC(CS))

S. HAFIZUR RAHMAN (MEMBER).‑This is an appeal against order, dated 12th April, 1981 made by the Secretary to Government, Punjab Labour Department (respondent No. 1), whereby that authority. declared the promotion of the appellant from Stenographer to Assistant Labour Officer as irregular and void ab initio and reverted. him. to leis original post with immediate effect. 2. The appellant was promoted as Assistant Labour Officer on 14th April, 1980 by the Director, Labour Welfare (respondent No. 2) in accor dance with the West Pakistan Labour Welfare (Subordinate Service) Rules. 1969, whereby a Stenographer with more than 5 years experience was eligible for promotion as A.L.O. In December, 1980, Abdur Rashid (respondent No. 3) represented against the promotion on the ground that on the date of promotion the appellant was Senior Scale Stenographer (S.S.S.) and not Stenographer and was, therefore, ineligible. Respondent No. 1 after hearing the appellant and Respondent No. 3 issued the order which is impugned through this appeal. 3. The parties were heard. It was contended o$ behalf of the appellant that the impugned order was the result of .a representation by respondent No. 3, which representation was basically incompetent because no promotion made in accordance with rules could be challenged or questioned by anyone as provided‑in proviso to section 21 of the Punjab Civil Servants Act, 1974. Then, respondent No. 1 through the impugned order chose to review his own order of 10th January, 1981 in which he had described the promotion of the appellant as regular and unexceptionable, and thus he was not empowered to do. The Labour Welfare (Subordinate. Service) Rules, 1969 provide that a Stenographer with five years' service is eligible for promotion as A.L.O., there is no bar on a S.S.S. being so pro moted because in the eyes of the relevant rules S. S. S. and Stenographer would be the same. In any case, the appellant was a Stenographer and it was simply a quick of fate that his post had been re‑designated as S.S.S. According to the learned counsel for the appellant, the appellant was eligible for the post of A.L.O. He referred to the meaning of 'Eligible' given in a dictionary of law terms and phrases as "legally qualified‑ and fit to be chosen" to aver that there was no bar to the appellant's pro motion as A.L.O. It was contended that the appellant had his lien on the post of Stenographer and, according to P L D 1980 Pesh. 158 so long as lien remained no one could be permanently appointed to that post. It was averred, moreover, that during three years or so that the appellant remained promoted as A.L.O. he acquired valuable rights which the respondent could not take away as he was barred from‑doing so on the principle of locus poenitentiae P L D 1969 S,C 412 (in re : Hidayatqjlah Farrukhi), was cited in this regard. The promotion had been made by the competent authority, i.e. Director Labour Welfare, and respondent No. 1 was not competent to review it once he had given his view on 10th January, 1981, that the promotion was regular. 4. From the side of the respondent the position taken by the appellant was assailed vigorously. It was contended that his promotion to start with, was irregular and in contravention of .the Labour Welfare (Subordinate Service) Rules because at the time of his so‑called promotion he was not a Stenographer in N.P.S.‑10 but a S.S.S. in N.,P.S.‑12 and a confirmed one at that and thus could not be said to have been promoted as A.L.O. in N.P.S.‑11. The Tribunal was within its rights to question this promotion, because it was not a promotion after consideration of all entitled, qualified and eligible candidates but a promotion which was per se illegal because the appellant was not eligible at all to be promoted as A.L.O. The appellant became S.S.S. in August, 1976 and when promoted was not S.S.S. in an officiating capacity but was regular, confirmed against a vacant post. Under the Labour Welfare Department Ministerial Service (Regional) Rules, 1962, he stood automatically confirmed in August, 1978 when his probation period was not extended. Thus, the promotion being invalid it was declared as such through the impugned order issued by respondent No. 1. The order of 10th January, 1981 describing the promotion of the appellant as regular was stated by the respondent to be a letter issued on the authority of the Deputy Secretary, an officer lower in status even then respondent No. 2 and, therefore, not an order of res pondent No. 1. The only order issued by respondent No. I was the impugned order. 5. We have considered the submissions of the parties with attention and interest. In order to satisfy ourselves on a number of issues we also went through the departmental record on the subject. In our opinion the crux of the matter lies in determining whether the promotion of the appellant was in conformity with the rules or not ; the rest of the issues will fall into place themselves once that is decided. According to the Rules on the subject, 10 per cent of the vacant posts of A.L.O. are to be filled up from among members of the Headquarters and Regional ministerial staff holding the posts of Assistant, Head Clerks and Steno graphers, with five years' experience as such. The post of A.L.O. is in N.P.S.‑11. The stenographer referred to in the rules used to be in N.P.S.‑10; it was, therefore, a normal promotion for a Stenographer to become A. L.O. The appellant on the date he was promoted by respondent No. 2 was however, not a Stenographer in N.P.S.‑10 but a S.S.S. in N.P.S.‑12. His contention was that in any case he was a Stenographer, and that he was holding the post of S.S.S. in only an officiating capacity. However, the respondents have been able to show from the record and from a reference made to the Finance Department that the appellant, on the date of his promotion as A.L,O., was a regular confirmed S.S.S. in N.P.S.‑12. The issue now narrows down to the point whether a civil servant in N.P.S.‑12 can be promoted into N.P.S.‑11 If made, whether i could be termed a promotion? And made not as a promotion but as a, say, transfer or induction would it meet with the requirements, of a promotion under the above said rules? It is our considered view that no, going from N.P.S.‑11 is not promotion. It is no promotion even if the two scales are the same, say N.P.S.‑12 or N.P.S.‑11. The argument of locus poenitentiae on the ground of accrual of valuable right was not attracted because it is inconceiv able that a person should acquire valuable rights by being "promoted" from a higher to a lower post. In fact, common sense demands that the appellant should have agitated for going back to his higher scale instead of being "promoted" to lower scale. We agree with the defini tion of "promotion" cited by the learned counsel for respondent No. 3 from PLD 1973 Lah. 332 that promotion is from a junior to a senior post in that hierarchy. It cannot be anything but travel from a Iowa to a higher post; not even from one post to another where both are equal in status. Otherwise it would have to be given an appellation other than promotion, whereas in the appellant's case it was meant to be a promo tion under the relevant rules. 6. The competence of respondent No. 1 to entertain a representation against promotion also came under discussion with impressive argu ments from the parties supported by equally impressive citations from the judgments of this Tribunal and the Superior Courts of the country. We are of the opinion, however, that the arguments became unnecessary in the face of our finding that the appellant's so‑called promotion from S.S.S. to A.L.O. was not a promotion, since to repeat, movement from a higher scale to a lower scale cannot be called a promotion and was, therefore, in conflict with the rules under which the so‑called promotion was made. The issuance of the impugned order was in effect in the nature of rectifica tion of a wrong step and no longer remained an action on a representation against promotion. Respondent No. 1 was not going into the suitability of the appellant for promotion but was examining his very eligibility to be promoted. It is in this context that the impugned order was issued. Since after going into the pros and cons of the matter respon dent No. 1 arrived at the conclusion that the appellant's promotion should not have been made in the first place, the order of 10th January, 1981 issued by the Section Officer on the authority of the Deputy Secretary also loses whatever force it had as a confirmation of the appellant's regular promotion. 7. In view of the above discussions we hold that there is no ground to assail the order of the respondent issued by him on 12th April, 1981. The appeal is consequently dismissed. A. E. Appeal dismissed,