1. N. A. CHOUDHURY (MEMBER).--Mr. Bashir Ahmad, the petitioner, while serving as S. A. S. Accountant in the office of Accountant-General. West Pakistan, Lahore was compulsorily transferred to the office of the Comptroller, Southern Area, Karachi in July 1960. It has been alleged that under the applicable and prevailing rules, when a transfer is ordered without an option of the civil servant, his seniority in the borrowing officer is to be fixed in accordance with para. 6 of the Cabinet Secretariat Office Memorandum dated 31-3-1951. This order permits carrying the seniority to the borrowing office on the basis of continuous service rendered in that grade in the lending Department. It hag further been alleged that the next promotion of the petitioner should have been ordered on the basis of the seniority so fixed, and he should have been promoted with effect from 13-7-1960, when officers junior to him in the borrowing office were already officiating as Assistant Accounts Officers.
2. The claim of the petitioner for promotion as Assistant Accounts Officer with effect from the abovementioned date was denied by the Department up to 19-12-1961. Subsequently, the Auditor- General of Pakistan allowed the promotion to Mr. Bashir Ahmad to the post of Assistant Accounts Officer with effect from 19-11-1960 by virtue of orders issued on 13-2-1974. In this order, it was contemplated not to pay arrears of salary for the period of this promotion which was ordered in the nature of only pro forma promotion. The petitioner continued to represent to the Auditor-General of Pakistan regarding his above claim. He was finally informed by the Accountant-- General, Punjab vide his order dated 15-4-1976 that his representation was. Considered in consultation with the Ministry of Finance and the Establishment Division, and has been rejected. No reasons for rejection were communicated. On 28-1-1979, the reasons for this rejection have been communicated by the Ministry of Finance. The following reasons were advanced by the Ministry of Finance :-
(a) Under the rules, pro forma promotion is allowed to a Government servant in the parent cadre to safeguard his interests while on deputation outside the parent department. As no one junior to you in your parent Department had been promoted as Assistant Accounts Officer, the propriety of allowing pro forma promotion in your case is not understood, nor is the creation of supernumerary post for the purpose of pro forma promotion necessary in this case.
(b) a supernumerary post of Assistant Accounts Officer for the period from 19-11-1960 to 18-12-1961 was, however, created to accommodate you without payment of arrears ; and
(c) the Establishment Division tendered specific advice to the effect that if the competent authority, in the order granting promotion specifically mentioned that no monetary benefits would be admissible, the order would appear to be competent requiring no change. It was actually done in your case.
3. During today's hearing, the appellant explained his case himself. It was argued by him that the Auditor General in his own order dated 2-9-1961 has already accepted the position that in supersession of all previous orders, a deputationist should be promoted in a borrowing office on the basis of the seniority to be regulated under para. 6 of the Cabinet Secretariat Office Memorandum dated 31-3-1951 irrespective of the fact whether or not the deputationist has become due for similar promotion in his parent office. It was the case of the appellant that in view of this position, the arguments advanced by the Ministry of Finance and the Establishment Division for disallowing the benefit become contradictory. It was further argued that since the pro forma promotion has already been given from a national date, to deny it from the correct date becomes fallacious.
4. It was further argued by the appellant that the denial of monetary benefits is opposed to the norms of justice, as also held by the Lahore High Court in the case of Syed Mazhar Hussain Rizvi and 3 others v. Government of West Pakistan, Services and General Administration Department (PLD 1973 Lah. 56). The gist of the judgment is that if a person who, for no fault of his own, is wrongly prevented from rendering service to the State in the higher post, he is entitled to the salary for the period in the same manner as if he was actually rendering service.
5. The petitioner, therefore, prayed for the following relief :-
(i) His promotion should be notified as Assistant Accounts Officer with effect from 13-7-1960, when it actually accrued under the rules and orders applicable in his case.
(ii) He should be allowed arrears of salary against the post of Assistant Accounts Officer from 13-7- 1960 to 18-12-1961, and also the resultant benefits of seniority and increments.
6. The learned State Counsel with the help of the representative of the Auditor-General of Pakistan explained the case. While explaining the points, the representative as well as the learned State Counsel agreed to the interpretation put on the rules and orders by the appellant. The admitted position, therefore, was that there is no dispute-regarding the petitioners claim of seniority being regulated under para. 6 of the Cabinet Secretariat Office Memorandum dated 31-3-1951. Para. 6(8) reads as under :-- "When a person is compulsorily transferred to another office as a result of conscription, or alongwith the post and his work, he should he allowed to count his previous continuous service in the grade towards seniority in that grade in the new office."
7. The question of seniority is not, therefore, disputed, and the appellant has already been given seniority by counting his continuous service as S. A. S. In his regional office of the Accountant- General, Punjab, when compulsorily transferred to Comptroller, Southern Area.
8. As regards the date of promotion, the representative of the Auditor---General of Pakistan explained that the officer was considered for promotion on the basis of this seniority, but he has been allowed promotion with effect from the date on which the Departmental Promotion Committee held the meeting to consider him fit for promotion, and not from the date it became due to him on the basis of the seniority already agreed to by the Auditor --General. Neither the learned State counsel nor the representative of the Auditor-General had any reasons to advance for this particular choice of the date.
9. It was put to the representative of the Auditor-General whether it was a case of pro forma promotion or a case of actual promotion. The position could not be explained.
10. After hearing both the parties, we come to the following conclusions:-
(a) There being no dispute regarding seniority, no orders are necessary, because the seniority according to the rules has already been allowed to the petitioner.
(b) Since the appellant became due for promotion with effect from 13-7-1962 on the basis of the seniority so allowed to him by the Auditor-General, he has to be given promotion from the same date because the Department has not been able to show any record that the appellant was considered unfit for any period to hold the post of Assistant Accounts Officer by the competent Departmental Promotion Committee. The date of holding the meeting of the Departmental Promotion Committee has no relevance. The crucial date is the one on which one becomes due for promotion. Mr. Bashir Ahmad should there--fore be allowed actual promotion with effect from 13- 7-1960. Once this promotion is made, the salary and allowances accruing to him on the basis of such promotion shall also be payable to him with effect from 13-7-1960. He has been denied to hold the post of Assistant Account Officer with effect from the abovementioned date through no fault of his, but through the oversight of the departmental administration. The judgment of the Honourable High Court is very much applicable in this case, as also held by this Tribunal in the case of S. Bashir Ahmad Kazmi v. Auditor General of Pakistan (Appeal No. 15(K)/1974).
11. The fixation of pay for the purpose of subsequent increments should be regulated after allowing the Assistant Accounts Officer's scale to the petitioner with effect from 13-7-1960.
12. Ordered accordingly. Parties be informed.