' 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 SETs 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 read 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 SETs were to be promoted, therefore, it took the Departmental 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 spine 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 ante-dating 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 inaction of others. We arc 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 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.##TE#
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 SCM R 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 favorable 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 nonimpleading 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.##TE#
19. No orders as to costs.