' MOAZZAM HAYAT (MEMBER).---Appellant Dr. Roohi Saeed was an Assistant Professor, Gynae, in Allama Iqbal Medical College, Lahore. Her services were placed at the disposal of Chairman, Sheikh Zayed Post Graduate Medical Institute, Lahore, hereinafter called respondent-Institute, on deputation for a period of three years vide order of the Health Department of the Government of the Punjab, dated 21-9-1994. Professor Dr. Mahmood Ahmad in his capacity as Chairman and Dean of the respondent-Institute issued a notification on 25-4-1996 by which the appellant was appointed as Associate Professor of Gynae. And Obstetrics in BPS. 19 in the said Institute. This, appointment was made on the recommendation of the Departmental Selection Committee made in its meeting held on 11-11-1993. On 8-1-1998 Professor Masood Alam, Deputy Dean issued another Office Order by which the appellant was allowed by the competent Authority to draw her pay and allowances against the vacant post of Professor of Gynae. And Obstetrics (Perinantology)
Oncology/Reproducts Biology w,e,f, 25-4-1996. Vide order, dated 17-1-2000 passed by 'Professor Tahir Shafi, Chairman and Dean of the respondent-Institute Professor Dr. Muhammad Saeed, Incharge Department of Gyn. And Obs was made OSD with immediate effect. He was directed to hand over the charge of his office to the appellant. The dispute between the respective parties started when an order was passed by the Professor Tahir Shafi on 14-1-2000 by which the appellant was directed to hand over the charge of the Department of Gyn. And Obs. To respondent Dr. Muhammad Saleem Malik. Against this order the appellant made a representation on 29-1-2000. It was complained by her in her representation that respondent Dr. Muhammad Saleem Malik was not only junior to her but he had also joined Shalimar Hospital. This representation made by the appellant was decided by Professor Tahir Shafi on the same day i,e, 29-1-2000. The appellant was informed that she had joined the respondent-Institute as on Associate Professor on regular basis on 25-4-1996 and prior to that date she was on deputation and that period of deputation could not be counted towards her seniority. As regards respondent Dr. Muhammad Saleem Malik it was observed by Professor Dr. Tahir Shafi that the said Professor had tendered his resignation which was not accepted, therefore, he had reported back to the Department. The appointment of respondent Dr. Muhammad Saleem Malik, on current charge basis, was declared to be according to the rules. The appellant was warned that if she did not accept Dr. Muhammad Saleem Malik as Head of the Department it would amount to insubordination on her part. A provisional seniority list of Faculty staff was circulated by respondent No,3 Secretary, Cabinet Division, Government of Pakistan on 14-3-2000. It appears that in the list respondent Dr. Muhammad Saleem Malik was shown senior to the appellant. The appellant, therefore, filed a representation through proper channel to the Cabinet Secretary that she was senior to Dr. Muhammad Saleem Malik by two years and that the said doctor had been reemployed by the Dean of respondent-Institute with mala fide intentions. The aforementioned order, dated 29-1-2000 was challenged by the appellant through a Writ Petition No,2189 of 2000. This writ petition was dismissed on 3-10-2000. It was held by Mr. Justice Dr. Munir Ahmad Mughal that the writ petition was not competent in view of bar contained in Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973. It is in this background that the appellant has filed the present appeal. The prayer made by the appellant in her appeal is as under:-- "It is, therefore, prayed that the appeal may be accepted, the impugned order, dated 29-1-2000 and also impugned action of the respondents to treat respondent No,5 in service of Sh. Zayed Hospital and senior to the appellant may be declared as illegal, Respondents Nos.1 to 4 may be directed to relieve respondent No,5 and appoint the appellant as Professor of Obstetrics and Gyn.
As previously ordered.
' Any other relief to which the appellant may be found entitled in the circumstances of the case may also be granted in her favour."
2. The appeal is resisted by the respondents.
3. It may be stated that Secretary, Ministry of Health, Government of Pakistan had also been made a party in the present appeal. His name was deleted vide our order, dated 31-5-2004. Respondents Sheikh Zayed Post Graduate Medical Institute, Secretary Cabinet Division, Government of Pakistan and Professor Dr. Tahir Shafi, Chairman/Dean of the respondent-Institute have filed a joint written statethent. Dr. Muhammad Saleem Malik respondent No,5 has also filed his written statement. A common objection has been taken by all the respondents that the present appeal is hopelessly time-barred. The application filed by the appellant for condonation of delay has also been resisted by the respondents. On merits it is submitted that in the meeting of the Departmental Selection.
Committee held on 11-11-1993 the appellant was recommended for appointment to the post of Assistant Professor of Gyn. & Obs. In BPS.
19. The minutes of the meeting were kept pending and not sent to the competent Authority for approval. Due to non-approval of the recommendation of the Departmental Selection Committee the appellant applied for deputation. It is submitted that this request of the appellant was accepted and the Government of the Punjab placed her services at the disposal of Chairman of respondent-Institute on deputation basis. The contention of the respondents is that the appellant had joined the respondent-Institute on deputation, that she had continued to work on deputation till 24-4-1996 and that her appointment on regular basis was made on 25-4-1996. It is further submitted that being a deputationist she could not be assigned seniority in the seniority list as claimed by her. A reference in this regard was made to SZPGMI Employees Service Regulations, 1996. Thus the defence of the respondents is that being a deputationist the appellant could not claim seniority as against respondent Dr. Muhammad Saleem Malik, who had joined the respondent- Institute on regular basis much earlier than her. In his objections respondent No,5 Dr. Muhammad Saleem Malik has maintained that he was appointed as Assistant Professor on ad hoc basis on 13- 7-1987, that his service was regularized on 1-11-1990', that he was appointed as Associate Professor on current charge basis w,e,f, 12-8-1992 and on acting charge basis w,e,f, 8-7-1995 and that finally he was appointed as Associate Professor on regular basis on 21-11-1995. In this manner the respondent No,5 has pleaded that his appointment as Associate Professor was made on regular basis on 21-11-1995 whereas the appellant's service was regularized through absorption w,e,f, 24-4- 1996.
4. From the pleadings of the parties following issues have arisen which require determination:--
(i) Whether the appeal is time-barred, and if it is time-barred whether the delay can be condoned,
(ii) Whether the appeal is not maintainable, and finally
(iii) Whether the appellant can claim seniority from the date she had joined the respondent- Institute on deputation.
5. We have heard the learned counsel for the respective parties and have also perused the record.
6. The first prayer made by the appellant is that order, dated 29-1-2000 passed by Professor Dr. Tahir Shafi, Chairman and Dean of the respondent-Institute be set aside. We have read this order and find that respondent-Dr. Muhammad Saleem Malik had been appointed as Professor on current charge basis. His appointment was not on regular basis. Appointment on current charge basis is not a promotion. A Civil Servant who is appointed on to a higher post on current charge basis continues to be in his own grade till he is promoted on regular basis. For this reason we hold that vide order, dated 29-1-2000 respondent Dr. Muhammad Saleem Malik had not been promoted on regular basis. This order, therefore, did not give any cause of action to the appellant to file the present appeal. We are of view that the said order was just a threat to the appellant to accept Dr. Muhammad Saleem Malik as Head of the Department and if she did not do so it would amount to insubordination on her part. By this order the claim of the appellant and Dr. Muhammad Saleem Malik relating to their seniority had not been decided. There was, therefore, no need for challenging this order. The respondents have raised an objection that as far as this order is concerned the appeal is time-barred. As observed above this order was just an administrative order. It did not give a cause of action to the appellant, hence, the objection raised by the respondents with regard to limitation becomes irrelevant. It appears from the record that inter se seniority of appellant and Dr. Muhammad Saleem Malik has not been determined by the competent Authority to date. On the basis of a provisional list Dr. Muhammad Saleem Malik was appointed as a Professor on acting charge basis. We fail to understand as to why the Chairman of respondent-Institute and Secretary Cabinet Division did not take notice of the fact that in the meantime Dr. Muhammad Saleem Malik had joined Shalimar Hospital and had reported for duty there. Be that as it may, the dispute exists even today. We, therefore, hold that the appeal cannot be dismissed on the objection relating to limitation raised by the respondents.
7. As regards issue No,2 the respondents have argued that the present appeal is not maintainable in view of Proviso-B to Section 4 of the Service Tribunals Act, 1973. The Proviso says that 'no appeal shall lie to a Tribunal against an order or decision of a Departmental Authority determining the fitness or otherwise of a person to be appointed to or to hold a particular post or to be promoted to the higher post or grade." It is vehemently argued by the counsel appearing for the respective respondents that appellant cannot claim promotion as of right and her appeal for grant of promotion is barred by the above mentioned law.In the prayer clause of the appeal the appellant has not prayed for promotion. Her only claim is that the order by which respondent Dr. Muhammad Saleem Malik was declared senior to her be set aside being illegal. For this relief appeal can be filed in this Tribunal. The present dispute relates to the seniority of the appellant. This is the only forum in which this question can be finally and conclusively decided. We accordingly hold that appeal is maintainable.
8. The Departments of the Government are required under the service laws to maintain seniority lists of their officials/officers. It is the duty of respondent Nos.1, 3 and 4 to finalize the seniority list placing the appellant and respondent Dr. Muhammad Saleem Malik at appropriate positions in that list. The learned counsel for the respondents have argued that since only a provisional seniority list has been published, therefore, the appellant could not file the present appeal. We would have considered this argument of the learned counsel for the respondents but we are satisfied from the record that notwithstanding the provisional nature of the seniority list the Chairman and Dean of the respondent-Institute had passed orders treating respondent No,5 senior to the appellant prompting her to file the present appeal. Without publication of the final seniority list the Chairman and Dean of the respondent-Institute could not pass any such order. It is because of the conduct of the Chairman and Dean of the respondent-Institute that the appellant has been compelled to file the present appeal. In the circumstances the objection raised by the respondents as to the maintainability of appeal is repelled.
9. We are also of the view that by passing order, dated 29-1-2000 the Chairman and Dean of respondent-Institute had usurped the powers of the Departmental Promotion Selection Committee including the Secretary, Cabinet Division. The Chairman and Dean had exceeded his powers when it was mentioned by him in the aforementioned order that since the appellant was a deputationist, therefore, respondent Dr. Muhammad Saleem Malik was senior to her. It would have been more appropriate that the Chairman and Dean should have left this question to be resolved by the Selection Committee and the Secretary to the Government of Pakistan, Cabinet Division.
10. We shall now address to the claim made by the appellant for determination of her seniority from the date she had joined the respondent-Institute on deputation. In this regard the respondents have argued that the appellant had been appointed on regular basis in the year 1996, therefore, her seniority is to be reckoned w,e,f, 25-4-1996. We have before us 2003 SCMR 333. The case before the apex Court was of a Civil Servant who had been appointed in Railway Mail Service from where he was transferred to Postmaster General's office as Upper Division Clerk. The said Civil Servant was subsequently absorbed in the office of Postmaster General. However, he was placed junior to other employees in the seniority list. It was held by the apex Court that persons appointed through transfer were to be assigned seniority in accordance with the provisions of Civil Servants Act, 1973 read with the Rules framed thereunder. It was further held that right of Civil Servant, who was initially sent to the transferee department on deputation and subsequently permanently absorbed, would be governed in the matter of seniority under Civil Servants (Seniority) Rules, 1993. The principle of law laid down by the apex Court was that seniority of Civil Servant in transferee department would be reckoned from the date of his transfer. The relevant part of the judgment of the apex Court is reproduced as under:-- .The right of the appellant who initially was sent to the epartment on deputation and subsequently was permanently absorbed would be governed in the matter of seniority under the ibid (Rule 4 of Civil Servants (Seniority) Rules, 1993) rules. We having carefully considered the contention raised by the learned Deputy Attorney-General find that crucial date for determination of the seniority of appellant would be the date of permanent absorption of appellant in the Office of Postmaster General, Northern Circle, Rawalpindi and thus the seniority of the appellant in the transferee department would be reckoned from the date of his transfer and not from the date of issue of order of absorption. The appellant being on deputation was retained as permanent employee of the Office of Postmaster General, Northern Circle, Rawalpindi and he has been performing his functions to the entire satisfaction of his superiors, therefore, upon permanent absorption in the Office of Postmaster General, Northern Circle, Rawalpindi, obviously he would become regular employee in the said department with effect from the date of initial induction as envisaged under rule 4 of ibid rules and not from any subsequent date...."
' The parenthesis is ours.
11. In the above circumstances we direct the respondents to prepare a final seniority list of the Faculty staff of the Institute. While doing so the judgment of the apex Court wherein the seniority of the Civil Servant was reckoned from the date he was inducted on deputation shall be considered and followed.
12. Mr. Imran Aziz, Advocate, learned counsel for the respondents Nos. 1, 3 and 4 has argued that the facts of the present case are different from the facts of the case decided by the apex Court. It is submitted by him that in the case before the apex Court the Civil Servant had been sent on deputation without his consent whereas in the present case the appellant had come on deputation on her own request. This argument is not borne out from the record. The demand for the services of the appellant was made by the respondent-Institute. This fact is verified by a letter, dated 7-8-1999 sent by Professor Dr. Mahmood Ahmad, Dean and Chairman of the Institute, to the Secretary, Cabinet Division. Even otherwise a Civil Servant cannot order his/her own transfer. Since the appellant had been sent on deputation by the Government of the Punjab, therefore, it cannot be said that she had lost her right to seniority as she had herself requested for her transfer. The argument of Mr. Imran Aziz, Advocate cannot be upheld.
13. We have noticed with concern that non-completion of seniority lists and non-issuance of promotion orders etc. Are multiplying the litigation amongst the Civil Servants. It is the duty of every person, of whatever status he is and whatever religion/faith he professes, to do justice to all.
Particularly the Government Departments are required to impart justice to their employees so that they do not enter into litigation. It is not the function of the Courts alone to administer justice. The timely decisions on merits by the respective Departments can definitely help in reducing litigation.
In the present case the dispute between two specialists should not have arisen and once it had arisen it should have been resolved at the earliest. During the course of arguments certain documents were referred by the respective parties. From these documents it is established that certain orders were passed which should not have been passed. These orders are the root-cause for the present litigation. Multiplicity of litigation has become an epidemic in our society and the reason is that the Government Departments hesitate in deciding issues expeditiously. This malaise has to be checked. The Secretary, Cabinet Division shall look into this aspect of the matter and issue necessary instructions to all the Government Departments.
14. For the reasons above we accept the appeal to this extent that a direction is issued to respondents Nos. 1 and 3 and the present Chairman and Dean of respondent-Institute to publish a final seniority list by deciding the respective claims of the appellant and respondent-Dr. Muhammad Saleem Malik relating to their seniority. While making this determination the ruling of the apex Court reproduced above shall be followed. The service rendered by the appellant as deputationist shall not be thrown in void. Her seniority shall be reckoned from the date she had joined the respondent-Institute on deputation. The entire process may be completed within a period of two months. The respondents shall also take into consideration the document pertaining to the faculty staff strength of the respondent No,1 which speaks of two posts of Professors of Gyn.
And Obst. Also.
15. There shall be no order as costs Parties be informed.
Appeal accept accordingly.
2006 PLC (C.S.) 1159 [Supreme Court of Pakistan] Present: Khalil-ur-Rehman Ramday and Raja Fayyaz Ahmed, JJ LUQMAN ZAREEN and others versus SECRETARY EDUCATION, N.-W.F.P. And others C.Ps. Nos.326-P to 342-P, 485-P, 486-P,513-P to 519-P, 586-P and 622-P of 2005, decided on 21st June, 2006.
(On appeal from the judgment/order, dated 14-5-2005 of the N.-W.F.P. Service Tribunal, Peshawar, passed in Service Appeals Nos.187 and 188 of 2004, 1019, 1020, 1021, 1022, 1023, 1025, 1026, 1122, 1178, 1191, 1192, 1193, 1194, 1195, 1196, 1024, 1151, 1152, 1153, 1154, 1158, 1159, 1160, 1161, 1157 and 997 of 2003, respectively).
(a) North-West Frontier Province Civil Servants Act (XVIII of 1973)--- ----S. 8---Promotion--- Principle-- Acting charge--- Departmental Promotion Committee issued delayed notification---Effect---Where a post was available against which a civil servant could be promoted; where such civil servant was qualified to be promoted to such a higher post; where he was put on such higher post on officiating or acting charge basis only because requisite exercise of allowing regular promotion to such post was being delayed by competent authority and where he was subsequently found fit for such promotion and was so promoted on regular basis, then the civil servant was entitled not only to the salary attaching to such post but also to all consequential benefits from that very date from which he had put on the said post on officiating or acting charge basis. [p. 1163] A
(b) North-West Frontier Province Civil Servants Act (XVIII of 1973)--- ----S. 8---Promotion---Acting charge---Date of promotion--- Determination---Civil servants were promoted on 31-8-2000, on acting charge basis but Departmental Promotion Committee issued their notification of promotion on 27-5-2003---Grievance of civil servants was that their promotion was not considered from the date when they were promoted on acting charge basis--- Validity---Civil servant who was asked to hold a higher post to which he was subsequently promoted on regular basis, was entitled to the salary etc. Attaching to such post for the period that he held the same---Such civil servant was also entitled to any other benefits which might be associated with such post---If a vacancy existed in the higher cadre to which a civil servant was qualified to be promoted on regular basis but was not so promoted without any fault on his part and was instead put on such post on officiating basis, then on his regular promotion to such post, the civil servant would be deemed to have been so promoted to the same from the date from which he was allowed to hold the higher post, unless justifiable reasons existed to hold otherwise-- -Supreme Court converted petition for leave to appeal into appeal and set aside the judgment passed by Service Tribunal---Supreme Court declared the civil servants to be deemed to be promoted from 31-8-2000 and not from 27-5-2003---Appeal was allowed. [pp. 1165, 1166] B & D Sarwar Ali Khan's case PLD 1994 SC 233 and Chaudhry Mehmood Akbar's case 2003 SCMR 13 rel.
(c) North-West Frontier Province Service Tribunals Act (I of 1974)--- ----S. 4---North-West Frontier Province Civil Servants Act (XVIII of 1973), S.8---Appeal---Maintainability---Necessary parties---Non- impleading of direct appointees---Civil servants were promoted on 31-8-2000, on acting charge basis but Departmental Promotion Committee issued their notification of promotion on 27-5-2003- --During promotion on acting charge basis and issuance of notification, department directly recruited few civil servants---Grievance of said civil servants was that their promotion was not considered from the date when they were promoted on acting charge basis---Service Tribunal dismissed appeal on the ground that the direct appointees were not made party to the appeal--- Validity---Appeals filed by civil servants before Service Tribunal did not seek seniority over directly recruited persons and what they were asking for was vindication of their right to regular promotion from the date in question---If civil servants were found entitled to the same then they could not be deprived of it only because it could have caused some prejudice to some others nor could those others be heard to deny such benefit deserved by the civil servants---Non-impleading of the direct appointees to the appeals filed by civil servant in Service Tribunal could be no ground to deny them a right which had lawfully accrued to them---Appeal was allowed. [p. 1165] C Javed A.
Khan, Advocate Supreme Court with Mir Adam Khan, Advocate-on-Record for Petitioners (in all petitions).
M. Saeed Khan, Additional Advocate-General, N.-W.F.P. With Haji Ahmed Khan, Additional Secretary (S&L) and Fazli Manan, Director (S&L) Education Department, Peshawar for Respondents.
Date of hearing: 21st June, 2006.
' KHALIL-UR-REHMAN RAMDAY, J.--- All these petitions, twenty-eight in number, involve identical questions of law and facts; arise out of the same consolidated judgment of the learned N.-W.F.P.
Service Tribunal and are, therefore, being disposed of together through this single judgment.
2. The petitioners in all these cases were serving the respondent-Government as S.E.Ts. In different schools of the Province. Through a notification dated 31-8-2000, they were "ADJUSTED" against the higher posts of Subject-Specialists in the following terms:-- "The following S.E.Ts. Holding M.A./M.Sc. Degrees in the relevant subject for the post of Subject Specialists on acting charge basis in the schools noted against each on seniority basis with immediate effect subject to the terms and conditions in vogue or ones to be framed in future."
3. After the petitioners had held the said higher posts of Subject Specialists and Headmasters for about three years, a further notification was issued on 27-5-2003 which reads as under:-- "On the recommendation of the Departmental Promotion Committee, the Competent Authority has been pleased to promote the following S.E.Ts. (BPS-16) (I/C S.S.) to the rank of Subject Specialists (BPS-17) on regular basis with immediate effect and adjusted in the schools as noted against their names."
4. The petitioners felt aggrieved of their promotion to the said post from 27-5-2003 and not from the date when they had been actually appointed to the said posts though on acting charge basis i,e, from 31-8-2000. They sought redress of their said grievance from the learned Service Tribunal but failed.
5. Hence these petitions.
6. It has not been denied even before us that clear vacancies of Subject Specialists existed on 31-8- 2000. It has also not been denied that all the petitioners possessed the requisite qualifications for being regularly promoted to the said posts on the said date and no impediment existed in their way to such a promotion. The reason offered for not so doing was that since a large number of S.E.Ts were to be promoted, therefore, it took the Department Promotion Committee some time i,e, about three years to do the needful. It was, however, submitted that no financial loss had accrued to the petitioners because during these three years when they were holding the said higher posts, they had been paid salaries etc. Attached to the same.
7. The learned Tribunal non-suited the petitioners essentially on the ground that during the period in question when they were holding the higher posts on acting charge basis, they were entitled only to the salaries of the said posts and nothing more and that they were not possessed of any right to claim regular promotion from 31-8-2000. A mention had also been made by the learned Tribunal that during this period some twenty-seven persons had got directly recruited as Subject Specialists who had not been arrayed as parties to the appeals filed by the petitioners before the said learned Tribunal; that antedating the promotion of the petitioners to the said posts would adversely affect the seniority of the said direct appointees and since they had not been made parties to the said appeals, therefore, the sought relief could not be granted to them. From the impugned judgment of the learned Service Tribunal, an impression is also gathered that while refusing the said relief to the petitioners, the said learned Tribunal had also been influenced by the fact that they had not re-coursed to the available remedies in the year 2000 when they had been promoted to the posts in question on acting charge basis only and not on regular basis.
8. We have heard the learned counsel for the parties and have also perused the record in the light of the submissions made before us.
9. It is then a position admitted on all sides that nothing existed in the way of the petitioners on 31- 8-2000 which could have disentitled them to regular promotion to the posts in question and that it was only the usual apathy, negligence and bureaucratic red-tapsim which had deprived the petitioners of the fruits that they deserved. The petitioners could not be permitted to be punished for the faults and in action of others. We are of the view that where a post was available against which a civil servant could be promoted; where such a civil servant was qualified to be promoted to such a higher post; where he was put on the said higher post on officiating or acting charge basis only because the requisite exercise of allowing the regular promotion to the said post was A being delayed by the competent authority and where he was subsequently, found fit for the said promotion and was so promoted on regular basis then he was entitled not only to the salary attaching to the said posts but also to all consequential benefits from the very date from which he had been put on the said post on officiating or acting charge basis and we hold accordingly.
10. The learned Tribunal had brushed aside some precedent cases cited before it including some cases of this Court by declaring that the same were distinguishable. We have gone through the said judgments delivered by this Court and find that the learned Tribunal had failed to read the said judgments properly and to appreciate the ratio of the same in its correct prospective.
11. One such judgment to which a reference had been made in detail in the impugned judgment was Sarwar Ali Khan's case reported as PLD 1994 SC 233. This was a case where a Deputy Registrar of the Sindh Labour Appellate Tribunal had been appointed to the post of the Registrar of the same Tribunal on 5-7-1988 with immediate effect and till further orders but in his own pay and scale. It was almost three years later that he was regularly promoted to the said post on the recommendation of the Departmental Promotion Committee. Since there was no prospect of his further promotion beyond the post of Registrar, therefore, he had claimed only the salary of the post of Registrar which he had held on officiating basis for about three years and had prayed for nothing more. This claim was denied to him which finally led him to this Court. And this is what was held by this Court in the said facts and circumstances : ".... This cannot be stretched to cover the case in hand, where the incumbent has worked against that post on his own pay and status for three years, particularly when there was no legal impediment in his way to be promoted at that time on regular basis when he was inducted on 5-7- 1988. In the instant case, since the appellant was eligible and qualified for promotion to B-18, there appears no justifiable reason to deprive him of the salary and others benefits of that post for a period of three years, which he would have received, had he been promoted on regular basis. The appellant had discharged full duties and responsibilities of the higher post and in the absence of some plausible reason, he cannot be deprived of the salary and other benefits connected with that post." Underlining is ours).
12. Dealing with this judgment, the learned Tribunal had failed to appreciate the principle laid therein by this Court by omitting to give the requisite weight to the principle enunciated and the words "other benefits" emphasized by this Court through the said judgment.
13. Another judgment of this Court placed before the learned Tribunal for its guidance was the one delivered in the case of Chaudhry Mehmood Akbar reported as 2003 SCMR 13.
14. This was a case where Muhammad Afzal, the respondent in that case, while serving as Deputy Superintendent of Jail on 21-12-1989, was transferred and posted as Superintendent of Jail in his own pay and scale and it was almost five years thereafter i,e, on 1-9-1994 that he was regularly promoted to the said post of Superintendent. He reached the Service Tribunal claiming regular promotion from the date when he had been appointed to the said post of Superintendent i,e, from 21-12-1989 instead of the date of his regular promotion to the same i,e, on 1-9-1994. The learned District Attorney who represented the Government before the learned Tribunal did not object to the grant of the said relief and the same was accordingly allowed to him. One Muhammad Akbar questioned the said judgment of the learned Tribunal before this Court submitting that he was senior to Muhammad Afzal in service; had been promoted to the post of Superintendent of Jail after Muhammad Afzal had been put on the said post in his own pay and scale but before his regular promotion to the said post on 1-9-1994 and that granting promotion to the said Muhammad Afzal with effect from 21-12-1989 would operate prejudicially to his seniority and interests vis-a-vis the said Muhammad Afzal. After hearing all the sides, this Court sanctified the promotion of Muhammad Afzal with effect from the date when he had been actually put on the said higher post i,e, with effect from 21-12-1989 subject only to the proviso that the same would not adversely affect the rights of the other Superintendents of Jail who were senior to the said Muhammad Afzal.
15. A bare perusal of these judgments would thus, show that this Court had always accepted the principle that a person who was asked to hold a higher post to which he was subsequently promoted on regular basis, was entitled to the salary etc. Attaching to such a post for the period that he held the same; that he would also be entitled to any other benefits which may be associated with the said post and further that if a vacancy existed in a higher cadre to which a civil servant was qualified to be promoted on regular basis but was not so promoted without any fault on his part and was instead put on the said post on officiating basis then on his regular promotion to the said post, he would be deemed to have been so promoted to the same from the date from which he was allowed to hold the said higher post unless justifiable reasons existed to hold otherwise.
16. The appeals filed by the petitioners before the learned Service Tribunal could not have been dismissed on the ground of limitation. Firstly, because it was the subsequent notification dated 27- 5-2003 which had ordered their regular promotion not from the date that they had been promoted to the posts in question on acting charge basis but from the date of the said notification, which had caused grief to them. Therefore, limitation would start running against them not from 31-8- 2000 but from 27-5-2003. And secondly, because on similar question of limitation, this Court had thus, held in Sarwar Ali Khan's case (supra):-- "... It can be said that presumption favourable to the civil servant (appellant) would be that it was temporary arrangement and would not last long but it lasted for three years. Filing representation was also proper remedy and in such circumstances; it would not be fair to knock down service appeal as time-barred on the ground that first notification was not challenged."
17. This brings us to the question whether the petitioners could have been denied relief by the learned Tribunal on the ground that allowing relief in question to them could have operated, to the prejudice of some persons who had been directly recruited to the posts of Subject Specialists between 31-8-2000 and 27-5-2003 and who had not been impleaded as respondents in the said appeals. Suffice it to say that the appeals filed by the petitioners before the Service Tribunal did not seek seniority over the said directly recruited persons and what they were asking for was the vindication of their right to regular promotion from the date in question and if the petitioners were found entitled to the same then they could not be deprived of it only because it could have caused some prejudice to some others nor could the said others be heard to deny the said benefit deserved by the petitioners. Therefore, we find that non-impleading of the said direct recruits to the appeals filed by the present petitioners in the learned Tribunal could also be no ground to deny them a right which had lawfully accrued to them.
18. Having thus, examined all aspects of the matter and for the above-discussed reasons, all these petitions are converted into appeals which are allowed as a result whereof the impugned judgment of the N.-W.F.P. Service Tribunal is set aside and as a further result whereof it is declared that the petitioners (now appellants) shall be deemed to have been regularly promoted as Subject Specialists from 31-8-2000 and not from 27-5-2003.
19. No orders as to costs.