' QAZI MUHAMMAD HUSSAIN SIDDIQUI (MEMBER).---Heard the learned counsel for the parties and perused the record of the appeal.
2. The appellant joined the service in the Income Tax Department on 4-12-1963 as Upper Division Clerk (UDC). He was promoted as Income Tax Officer in Grade-16 on 14-2-1982. His grievance is that his juniors viz: Respondents Nos.3 to 8 had been promoted to BPS-17 in 1994 and to BPS-18 in 1996, but both the times, he was ignored and no considered for promotion from BPS-16 to 17 and, thereafter, from BPS-17 to 18 due to prolonged disciplinary proceedings pending against him. The disciplinary proceedings, however, ended in exoneration of the appellant vide respondent's letter dated 18-9-1999. Subsequently, on the representation of appellant dated 8-10-1999, the appellant was assured, vide letter dated 18-11-1999, that his case for promotion from BPS-16 to 17 would be considered to the next meeting of the D.P.C. However, no D.P.C. Was held, therefore, seeing that he would be retired on 12-2-2000, the appellant again made a representation on 22-12-1999 to the Member (DT), Central Board of Revenue, Government of Pakistan, Islamabad, which was not replied to; hence, the appellant preferred this appeal before the Tribunal on 4-2-2000, praying to direct the respondents 1 and 2 to promote him from the date on which his juniors, respondents 3 to 8, were promoted on 8-3-1994 and to declare that he would be entitled to all benefits of BPS-17 and 18 after his retirement. The appellant retired from service on reaching the age of superannuation on 12-2- 2000. In support of appellant's case, his learned counsel relied on 2001 PLC 34 (Syed Altaf Hussain Bukhari (Retd.) Deputy Director v. Accountant General, Azad Jammu and Kashmir, etc.). He relied on the orders of the respondents themselves issued on 19-12-1997 and 12-11-1998, whereby retired officers had been given antedated pro-forma promotion.
3. It is obvious from the letter of the respondents dated 18-11-1999 that they had assured the appellant to consider his case for promotion in the next DPC, but his case for promotion has not been considered as yet in spite of lapse of so many years since assurance for promotion was given to him.
4. Relying on 1986 SCM R 283 (Muhammad Aslam Khan v. Secretary, Ministry of Defence and others) and 1986 SCM R 1593 (Ghulam Sarwar Malik, v. Government of Pakistan and another), the respondents have taken the plea in the written comments filed on behalf of the respondents that after his retirement from service, on attaining the age of superannuation, the appellant ceases to be a civil servant and his right of consideration for promotion had abated.
5. We have carefully considered the arguments of both sides and perused the authorities cited at the bar.
6. We do not find ourselves persuaded to subscribe to the contention of the learned Counsel for the respondents to the effect that right of appellant for consideration of his case for promotion had abated after his retirement. The authorities cited by the learned Counsel for the respondents in support of his arguments of abatement are distinguishable. The case reported in 1986 SCM R 283 was about a dispute of seniority and consequential benefits. The appeal of the appellant therein was dismissed as he did not possess the requisite qualification/experience and was not qualified for the post Store Officer for which he had applied as direct recruit. There was no such dispute of seniority, qualification or experience of the appellant herein, whose case for promotion was simply not considered for the reason of pending disciplinary proceedings against him. In the case reported in 1986 SCM R 1593, leave to appeal was granted to examine the plea raised by the appellant that after having accepted his claim to seniority, Service Tribunal erred in denying him full consequential benefits including that of promoting or pro forma promotion due to him during his service inspite of his retirement. The department concerned informed the Hon'ble Supreme Court that all the benefits due to the appellant for the period he was in service had been accorded to him. The appeal was, therefore, dismissed as having become infructuoLs. On the other hand, it has been held in 2001 PLC 34 that, 'civil servant cannot, after his retirement, be denied right to promotion which had accrued to him while he was in service'.
7. We may point out here that the respondents had, themselves, promoted Shaukat Ali, Assistant Commissioner of Income Tax (already retired on 13-10-1997) to BPS-17 with effect from the date of his juniors were promoted i,e, 29-9-1994, vide notification dated 19-12-1997. Similarly, Muhammad Mukarram, Deputy Commissioner of Income Tax (retired) (BS-18) was promoted to the post of Additional Commissioner, of Income-Tax (BS-19) with effect from 12-8-1998, vide notification dated 12-11-1998.
8. We are of the firm view that the appellant had a vested right to be considered for promotion, but he was not considered for promotion due to pendency of disciplinary proceedings against him, which impediment has now been removed and the appellant is, therefore, entitled to pro forma promotion to BPS-17 with consequential seniority and monetary benefits even after his retirement.
Likewise, he is also B entitled to be considered for pro forma promotion to BPS-18, if found for that purpose by the D.P.C. We are supported by a number of authorities of the Hon'ble Supreme Court.
The leading authority being 1998 SCM R 736 (Iftikharullah Malhi v. Chief Secretary and another), in which following authorities had been thoroughly considered, is fully applicable to the case of the appellant:--
(i) The Province of the Punjab through the Secretary, Services and General Administration, Lahore v.
Syed Muhammad Ashraf (1973 SCM R 304);
(ii) Syed Sultan Shah v. Government of Baluchistan and another (1985 SCM R 1394);
(iii) Mrs. Aqeela Asghar Ali and others v. Miss. Khalida Khatoon Malik and others (PLD 1991 SC 1118) and
(iv) Abdul Jabbar Khan v. Government of Sindh through Chief Secretary, Karachi and 5 others (1996 SCM R 850).
' Relevant paras. Of the said authority, paras-6 to 9, are reproduced as under:--
6. In support of the above submissions, Mr. M.M. Aqil has referred to the case of The Province of the Punjab through the Secretary, Services and General Administration, Lahore v. Sayed Muhammad Ashraf (1973 SCM R 304), to the case Syed Sultan Shah v. Government of Baluchistan and another (1985 SCM R 1394), to the case of Mrs. Aqeela Asghar Ali and others v. Miss. Khalida Khatoon Malik and others (PLD 1991 SC 1118) and to the case of Abdul Jabbar Khan v. Government of Sindh through Chief Secretary, Karachi and 5 others (1996 SCM R 850).
' In the first case this Court, while declining leave against the judgment of the erstwhile High Court of West Pakistan (Lahore Bench), held that in the case of a civil servant who, for no fault of his own, is wrongly prevented from rendering service to the State in the higher post to which he is admittedly entitled, he should be given salary for the higher post.
' In the second case, a Full Bench of this Court headed by the then Chief Justice, Muhammad Haleem, reiterated the above principle of law enunciated in the case of The Province of the Punjab v. Syed Muhammad Ashraf (supra) as under:-- "7. The law on the point has already been laid down by this Court in the Province of Punjab v. Syed Muhammad Ashraf 1973 SCM R 304 and other connected cases in which pro forma promotion had been ordered and the pay was being denied. The argument advanced by the Provincial Government in those cases was also that the officials concerned were not entitled to arrears of salary in the grade against which they had never worked. This Court approved the view taken by the High Court that in case a civil servant, who for no fault of his own is wrongly prevented from rendering service to the State in the higher post. The decision fully governs the case in hand and the appellant was entitled to the salary in spite of Fundamental Rule 17."
' In the third case it has been held by this Court that a pro forma promotion from a date in retrospect would entitle a civil servant to claim pay for the period he was improperly denied his legal right of promotion.
' In the last case, which is one of the latest on the point in issue, this Court has held as under:- "The aforesaid clause (iv) of rule 13 is the amended version, which was so amended by Notification No, SOIX-REG (S&GAD) 2/1/1-74 dated 9-9-1976. It clearly provides that a civil servant, who was not considered for promotion for any reason other than his unfitness for promotion, is subsequently promoted subject to any order made by the competent authority in this behalf for the purpose of inter se seniority in the higher grade, shall be deemed to have promoted in the same batch as his juniors. If a civil servant, who has not been considered for promotion at a stage and is subsequently promoted and no order for inter se seniority has been passed by the competent authority, then such civil servant would be entitled to have been promoted in the same batch as his juniors, meaning thereby that he will maintain the seniority of his batchmates. Merely, because of non- consideration for any reason, he will not be deprived of his seniority among the civil servants promoted the same batch, who may even be junior to him. The appellant was not considered as it was alleged that there was an adverse remark in his ACR for the year 1972. The appellant challenged that this adverse ACR for year 1972 was never communicated to him. The respondents have not brought anything on record at any stage to prove that such adverse remarks were duly communicated within the time contemplated by the Rules, Non-communication of adverse remarks makes the authenticity of such remarks completely ineffective. On the basis of such uncommunicated remarks, a civil servant cannot be subjected to any adverse order. Therefore, the entire ground for not considering the appellant while promoting respondents Nos. 4 and 5 was completely without any basis and legal justification. Rule 13(iv) of the aforesaid Rules is wide enough as it speaks of non-consideration due to any reason, which has not been specified at all.
The only restriction is that the authority must pass an order for inter se seniority at the time of promoting out of turn while not considering a civil servant for any reason. The respondents have not passed any such order to comply with the provision of rule 13(iv) and were, therefore, not justified in not considering him along with respondents Nos.4 and 5. The appellant when considered and promoted in Grade-18, shall maintain his seniority as provided by rule 13(iv). To this extent the appeal is allowed.
7. All the above cases support the appellant's claim to the effect that he is entitled to the financial benefits on account of proper assigning of seniority to him through the above notification. It may be observed that prior to his retirement on 16-12-1990, the appellant had already been promoted as XEN. Since he was given seniority over Mr. Dattar Dino Shaikh, XEN, through the aforesaid notification dated 29-9-1991, it must, therefore, follow that the appellant would be deemed to have been promoted with Mr. Dattar Dino Shaikh as XEN. The appellant would, hence, be entitled to financial benefits for the period commencing from the date when the appellant should have been promoted up to the date when he was actually promoted.
8. As regards his promotion as a Superintending Engineer, we may observe that we are conscious of the fact that is a selection post but, at the same time, we cannot overlook the fact that if a civil servant has unblemished record of service and his A.C.Rs, are good, he is normally selected for a higher post on account of his seniority-cum-fitness. The case of Abdul Jabbar Khan v. Government of Sindh (supra) on all four is applicable to the case in hand. We would, therefore, direct the respondent-Department to place the appellant's case before the Departmental Promotion Committee with all the relevant A.C.Rs which would consider the appellant's case for promotion as a Superintending Engineer, If it forms the view that in normal course the appellant would have been promoted as a Superintending Engineer, if he would have been given his correct seniority at the relevant time, the department shall give him pro forma promotion as a Superintending Engineer with effect from the date when his promotion as a Superintending Engineer before his retirement on 16-2-1990 and would cause the payment of the financial benefits arising therefrom. The department shall finalise the above matter within six months.
9. The appeal is, accordingly, allowed in the above terms, with no order as to costs."
' In view of the above authorities, the appellant, who had been senior to the respondents 3 to 8, shall be deemed to have been promoted to BPS-17 from the date his juniors were promoted and he shall be entitled to the financial benefits for the period commencing from the date when he should have been promoted. As regards promotion of the appellant from BPS-17 to 18, we direct the respondents 1 and 2 to place the appellant's case before the D.P.C. With all the relevant ACRs If the D.P.C. From the view that, if the appellant would have been given his correct seniority at the relevant time, the department shall give him pro forma promotion as D.C.I.T. With effect from the date when his juniors were promoted as D.C.I.T. Before his retirement on 12-2-2000 and would the payment of the financial arising therefrom. The department shall finalize the above matter within six months. These directions are in consonance with para-8 of the above-referred authority viz; 1998 SCM R 736.
10. The appeal is, therefore, allowed in the above terms with no order as to costs.
11. Copies of this Judgment be sent to the parties under registered cover, and to the relevant quarters as per Rule-21 of the Service Tribunals (Procedure) Rules 1974.