' HAMID ALI MIRZA, J.---This civil appeal with leave of this Court, dated 15-1-2002 is directed against judgment dated 29-1-2001 in Appeal No,716(R)CS of 2000, passed by learned Federal Service Tribunal, Islamabad, whereby the said appeal was dismissed in limine, hence this appeal with leave of this Court.
2. Brief facts of the case are that the appellant made representation before respondent No,1 for grant of pro forma promotion and fixation of pay and payment of arrears stating therein that he is entitled to BPS-18 w,e,f, 26-1-1986 and moreover to BPS-19 under SRO No,1092(1)95, dated 6-11-1995 considering that one Mr. Abdul Qaddus a BPS-17 Officer who was junior to him and also retired, was granted pro forma promotion and also paid arrears of pay, therefore, he be also granted pro forma promotion w,e,f, 26-1-1986 and move-over to BPS-19 w,e,f, 1-12-1987 and his pay be fixed as BPS-18 Officer w,e,f, 26-1-1986 with payment of arrears as granted to Mr. Abdul Quddus. The said representation was replied to the appellant vide letter, dated 19-10-2000 by Assistant Director (Admn.III), Government of Pakistan, Ministry of Population Welfare informing him that his request was considered but could not acceded to as according to Establishment Division, the promotions are made after the approval of competent authority against existing vacancies with prospective effect. The appellant preferred an Appeal No,716(R)CS of 2000 before the Federal Service Tribunal, Islamabad, against the order, dated 19-10-2000 which appeal after hearing was dismissed on the ground that the appellant has retired since 3-10-1995 while appeal was preferred on 31-10-2000 as such the matter was closed and past, therefore, cannot be reopened in appeal as such was dismissed. The appellant has preferred the present appeal with leave of this Court.
3. We have heard learned counsel for the appellant and learned D.A.-G. For the respondents and perused the record at length.
4. Contentions of learned counsel for the appellant are that the appellant is entitled to maintain his appeal for the purpose of pro forma promotion even after his retirement so as to entitle him to claim financial benefits. He also submitted that in the identical case Abdul Quddus who was junior to the appellant and had retired from service was given pro forma promotion and was paid his arrears of pay. Learned counsel has also referred to the impugned order, dated 29-1-2001 and order, dated 8th February, 1999 in respect of Mr. Abdul Quddus whereby order of this Court in Criminal Original Petition No,19 of 1998 in C.A. 1309 of 1995 was implemented and Mr. Abdul Quddus was promoted to BPS-18, so also order, dated 8-3-1999 of this Court in Criminal Original Petition No,19 of 1998 in Civil Appeal No,1309 of 1995. He has also referred to the order dated 1st April, 2000 in respect of fixation of pay/arrears of pay and allowances in respect of Mr.. Abdul. Quddus, former Deputy Director passed by the S.O. (P.W.). He also referred to order dated 30-9-1991 passed by Secretary Government of Punjab and also order, dated 18-9-1995 passed by the Section Officer, Government of Pakistan, Ministry of Population Welfare whereby the appellant at Serial No,22 was promoted to BPS-18 with immediate effect.
5. Learned Deputy Attorney-General on behalf of the respondents submitted that the appellant retired on attaining the age of superannuation on 3-10-1995 as BPS-18 Officer and was promoted in the said grade vide Notification No,2-9/94-Admn.III, dated 18-9-1995 w,e,f, 17th September, 1995 in BPS-18 and received all his pension and all dues and benefits till the date of his superannuation dated 3-10-1995. The petitioner for the first time made representation on 10-9-2000 after the lapse of five years and did not challenge his delayed promotion when other who were juniors to him were promoted in 1996. She submitted that petitioner has retired from service and there was no rule of granting pro forma promotion to the retired civil servants. She has placed reliance upon the decision of this Court in Government of Pakistan through Establishment Division Islamabad and others v. Hameed Akhtar Niazi, Academy of Administrative Training, Walton Lahore and others PLD 2003 SC 110.
6. We do not find merit and substance in the contentions of the learned counsel for the appellants.
7. Admittedly the appellant attained the age of superannuation on 3-10-1995 and on the basis of his retirement he withdrew all his pensionary and other benefits considering that he was promoted on 17-9-1995 and retired on 3-10-1995 but he did not claim his promotion over other colleagues junior to him who were earlier granted promotion, in BPS-18 in the year 1996 till 10-9-2000 when he made for the first time representation to the respondent No,2 which was also replied to him. We have gone through the instructions of the Establishment compiled in the ESTA Code with regard to promotion at Serial No,195 at page 295 of 2000 Edition but have not been able to find any such instructions whereunder a retired civil servant was entitled to pro forma promotion. It is true that civil servants who are on deputation on ex cadre post they are held to be entitled to pro forma promotion in their absence from the parent department or in a case when serving civil servant has earned adverse entries in his ACR as a result of which he has not been promoted on that account but later on the said adverse entries are expunged then the civil servant could claim pro forma promotion from the date he became due for promotion or his batchmates were promoted. But in the instant case the petitioner has retired on attaining his superannuation and thereafter he withdrew his pensionary and other benefits in his grade BPS-18 which were awarded to him on 17- 9-1995. It may also be observed that the intention underlying 'pro forma promotions' is to protect the interest of the Government servant only in circumstances where the Government servant is required to sever away from his parent cadre because of definite requirement of public interest and not merely to suit his own interest. Normally, therefore, a deputationist, as soon as he becomes due for promotion is required to revert to his parent department or cadre so that he is promoted to the next higher post for which he may have been declared fit. In the instant case the appellant has retired on 3-10-1995, how could he be declared fit for promotion in BS-19 and who would say about is output and performance for the period of his work in BPS-18 considering that he remained in service only for about one month after his promotion in BPS-18. It may also be observed that above cited decision of this Court and relevant instructions issued from time to time by the Establishment Division were not placed before the Court at the time of deciding the case of Abdul Quddus, while considering the scope of cases for pro forma promotion and the said unreported decision of Abdul Quddus being judgment in personam and not in rem would not be of any assistance to the petitioner's case. This Court in the above cited case Government of Pakistan v. Hameed Akhtar Niazi (supra) at page 122 while referring to decision of this Court Muhammad Saleem Bhatti v. Secretary to Government of the Punjab, Agriculture Department, Lahore and others 1985 PLC (C.S.) 26 observed as under:-- "(6) We have no dispute with the proposition so pronounced before us on behalf of the respondent-Departments through the learned District Attorney and have no hesitation to hold that pro forma promotion cannot be claimed as a right and it is absolutely for the department to see that in the circumstances the civil servant can be granted pro forma promotion or not. In this case so before us, we are in accord with the Department, when we find that at this belated stage, if pro forma promotion is granted to the appellant from 1968, it will definitely change the entire structure of the cadre and will open floodgate of litigation amongst its strength."
' It is also to be stated for the purpose of granting pro forma promotion it would necessarily involve the question of fitness of civil servant and three things would have to be seen while considering the case of promotion, firstly rule of promotion i.e is it of selection or a case of promotion of seniority- cum-fitness or of seniority alone, secondly whether the promotion is to take place by seniority- cum-fitness, and thirdly the question will be the fitness for promotion. Suffice it to say that in case of question of fitness, the jurisdiction of Service Tribunal is excluded as such the appellant having retired from service his fitness cannot be determined for the period for which a claim for promotion is made. It may also be observed that policy of move-over has discontinued since long, therefore, question of move-over of the appellant from BPS-18 to BPS-19 would also not arise. Retrospective pro forma promotion in respect of retired officer is not admissible under the rules as held by this Court in the above cited case of Government of Pakistan v. Hameed Akhtar Niazi, wherein at page 121 it has been observed:-- "Virtually, it is not a case of antedation, but of granting promotion from back date to the retired officers, which could not be done under the rules."
' The above cited case being latest law laid down by a Bench of this Court comprising of three Honourable Judges has preference over other earlier decisions of this Court. We also find that no substantial question of law of public importance is involved in this case, therefore, this appeal has no merit which is hereby dismissed.