NAZIR MUHAMMAD SHAIKH, MEMBER - The appellant, Haq Dad Khan, Divisional Engineer has filed this appeal under Section 4 of the Service Tribunals Act, 1973 to assail the respondent's order dated 13.03.2001 whereby his ante-dated, promotion with effect from 01.08.1986 has been withdrawn. The appellant's Departmental Appeal dated 20.03.2001 has not been responded despite lapse of prescribed statutory period.
2. Briefly, the facts of the case are that the appellant was appointed as Trainee Supervisor in Pakistan Telecommunications Company Limited in January 1975 and after completion of training he was regularized as Supervisor with effect from 01,08.1976. He was promoted as .Assistant Engineer (BPS-16) on 22.06.1989 and then as Assistant Divisional. Engineer in BPS-17 on 17-05.1994.
Meanwhile the appellant improved his qualification and got the B. Tech. (Hons.) degrees in 1985 which has been treated equivalent to B.Sc. (Engineering) in accordance with the notification dated 14.10.1976. The appellant filed a representation for. Promotion as A.D.E. (BPS-17) against 5% quota in 1985. But his request was not considered on the ground that B. Tech. (Hons.) degree was not equivalent to B.Sc. (Engineering). The appellant filed service appeal before the Federal Service Tribunal bearing No. 138(R)/1988 which was dismissed on 19 02.1991 against which He moved a Civil Petition before the Supreme Court which was accepted vide judgment dated 07.06.1997. The appellant was finally issued his promotion order on 12.05.1998 granting him ante-dated promotion as A. D.E. In BPS-17 with effect from 01.08.1986 whereby the implementation of the judgment of the august Supreme Court was complete/honoured.
3. The appellant was further promoted as Divisional Engineer vide Notification dated 07.06.2000 but the appellant by virtue of the Supreme Court's decision was required to be granted seniority with effect from 1999 as D.E. Which was denied and instead his notification giving him the benefit of ante-dated promotion was withdrawn.
4. The learned counsel for the appellant stated that the impugned order was void and nullity in the eye of law as it was issued without any show-cause notice. The appellant was also not afforded any opportunity of personal hearing before his vested right was terminated by issuance of the impugned order which was violation of the principle of natural justice. In support of his argument he cited Supreme Court's rulings reported in 2002 SCMR 1034 and 1994 SCMR 2232. He further stated that the entire matter revolves around the issue of equivalence of B. Tech, degree with B. Sc.
(Engineering) which was subject-matter of many appeal before the Federal Service Tribunal as well as the Supreme Court. He stated that the Supreme Court in its judgment reported in PLD 1995 SC 701 decided the issue of equivalence once for all. He further stated that the benefit of the notification dated 12.05.1998 passed in compliance with the Supreme Court's judgment was granted in accordance with law and the rules and he performed his duties to the entire satisfaction of his superiors and it was unjustly and arbitrarily withdraw. He stated that the principle of locus poenitentiae came into play and that it could not be withdrawn without due process and in this regard he relied on the judgments reported in 1990 SCMR 1414, 1999 SCMR 1004, 2000 PLC (CS)*506 and 1997 SCMR 15. He further stated that since he was given ante-dated seniority through notification dated 12.05.1998 hie was also entitled to promotion as D.E. From 1992' when his juniors were promoted and he was also entitled to seniority accordingly. In this regard he placed reliance on the judgments reported in 2000 PLC (CS) 600, 1998 SCMR 736, 1996 SCMR 850, PLD 1991 SC 1118, 1985 SCMR 1394 and 1990 SCMR 1414. He also referred to the Finance Division (Regulation Wing) SRO 1092(1 )/95, dated 06.11.1995 whereby Fundamental Rule 17 was amended to the following effect:-- "Provided that the President may, if satisfied that a civil servant who was entitled to be promoted from a particular date was for not fault of his own wrongly prevented from rendering service to the Federation in the higher post direct that such civil servant shall be paid the arrears of pay and allowances of such higher post through pro forma promotion or upgradation arising from the ante-dated fixation of his seniority."
The. Learned counsel for the appellant stated that FR-17 provides for ante-dated of promotion if any person/official has been finally denied promotion for no fault of his own. In . This regard; he cited Supreme Court's ruling reported in PLD 1991 SC 1118 and 2000 PLC (CS) 600:
5. He further stated that in view of his claim of seniority with effect from 1999 he was qualified to be promoted as Director and had duly attended pre-promotion course required for Director with Grade-A and had. Stood first throughout Pakistan and that he has been unjustly denied promotion as Director whereas his juniors having less marks in the said course have been promoted as Director.
6. The learned counsel for the respondents vehemently opposed the appeal and referred to the Supreme Court's judgment passed in Fida Hussain's case in 1997. The learned counsel further stated that the Supreme Court in Appeals Nos. 143 and 144 of 1991 wherein the appellant was one of the petitioners, had remanded the case to the department to consider the appellant's case along with other incumbents for promotion and to decide the same in accordance with law and the rules.
He further argued that it was for this reason that in the notification dated 12.05.1995 right of undertaking was included which stated that the appellant will not claim any right of his promotion and can be reverted and/or from his date of promotion can be adjusted in order to- cater for the seniority of any of eligible Assistant, Engineer on those dates as well as in the light of rules applicable at that time. The learned counsel for the respondents further stated that after the issuance of this notification detailed scrutiny was carried out to see if there was any vacancy under 5% quota. He stated that after scrutiny it came to light that 5% quota had been exhausted and there was not possibility that the appellant could be promoted with retrospective effect.
7. The learned counsel for the appellant, in rebuttal, stated that they were 27 . Persons who were promoted retrospectively and the cited the name of Arshad Abhasi who was, according to the appellant, junior to him.
8. We have heard the arguments from both the sides, perused the relevant record and the citations quoted extensively by the learned counsel.
9. The basic point in the appeal was whether the appellant was qualified to avail 5% quota reserved for B. Tech. Qualified employees and when the appellant applied for promotion against the quota the respondent had raised the question of equivalence of B. Tech. With B.Sc.
(Engineering). The equivalence issue was decided suo motu in Writ Petition No. 52 of 1983 where the Supreme Court decided that B*Tech. (Hons.) is equated with B.Sc. (Engineering). The appellant in the light of this decision of the Supreme Court approached this Tribunal through Appeal No. 138(R) of 1998. The Apex Court ruled that this issue had already been decided by it vide its judgment in the case titled as Muhammad Sadiq and others University of Sindh and others and reported in PLD 1996 SC 182. The Supreme Court, therefore, remanded the case back to the Department to consider the appellant's case along with other incumbents for promotion in accordance with law and the rules. In pursuance of his. Judgment of the Supreme Court dated 17.06.1997 the respondent issued notification dated 12.95.1998 whereby the appellant was given ante-dated promotion with effect from-01.08.1986. For facility of reference the said notification is reproduced below:- PAKISTAN TELECOMMUNICATION COMPANY LIMITED HEADQUARTERS. G-8/4, ISLAMABAD.
Dated at Islamabad the 12th May, 1998.
No, PDC.27/97(Pt) - In pursuance of the orders of Honourable Supreme Court of Pakistan passed in -the Civil Appeals No. 143 and 144 of 1991, dated 17.06.1997, the competent authority has approved the following officers of Pakistan Telecommunication Company Limited for promotion/ante-dated promotion to the post of Assistant Divisional Engineers in BPS- 17 against 5% quota as mentioned against each:- 1, Mr. Javed Iqbal 4 Assistant Engineer7 under General Manager MTR, MULTAN Promoted as A.D.E. (BPS-17) w.e.f. 16.12.1987
2. Mr. Haq Dad Khan, Assistant Divisional Engineer under Ante-date promoted as A.D.E. (BPS-17) w.e.f.
2. It is further directed that these officers will submit a clear undertaking that they will not claim any right of their said promotion and. Cap be reverted and or their date of promotion will be adjusted in order to cater for the seniority or any other eligible Assistant ' Engineers on those dates as well as in the light of rules applicable at that time.
General Manager NTR-II, 01..08.1986 D.I. Khan Sd/- Bahadur Sh^in Qureshi, D.C.(E. (CAREER PLANNING)" {{ TABLE }}
10. The learned counsel for the respondents stated .That this notification was issued in pursuance ,of order dated 17.06.1997 and latter which it was reviewed it came to light that 5% quota against which the appellant claims promotion had already been exhausted and the appellant was wrongly given this retrospective promotion; He stated that para-2 of the notification gave the respondents enough room to make necessary adjustment and, as such,, the withdrawal of the notification was in order. We are not. Impressed with this line of argument of the respondents' counsel for various reasons. First, the judgment of the Supreme Court dated 17.06.1997 was implemented almost after eleven months and it is difficult to believe that during the period the Department could not verify whether 5% quota had been exhausted or not. Secondly, the fact that 5% quota had been exhausted is an afterthought as the respondents did not produce any document or any written evidence during the course of hearing to substantiate this line of argument nor was this line of argument taken in earlier litigation. In fact this aspect has also not been touched in the written arguments submitted by the respondents. It will be recalled that the written arguments have been submitted after elapse of three years from the notification dated 12.05.1998 but the respondent did not verify the availability of 5% quota. Furthermore, even this argument has also not been recorded.
In the impugned notification dated 13.05.2001, The only reason given for its withdrawal was that the Supreme Court did not say anything about retrospective promotion to the appellant's plea.
This is now an admitted fact that the appellant's case for promotion against. 5% quota was initially denied to him on the grounds that B. Tech. Was not equivalent to B.Sc. (Engineering) degree and subsequently in the light of the Supreme^ Court's decision the equivalence, issue was resolved.
Since this issue has been resolved and B. Tech. Degree have treated equivalent to B.Sc., (Engineering) degree it is now concluded that the appellant was denied his promotion unjustly. The Government's instructions and the Supreme Court's decision; on the subject, are very clear that where a person is deprived of working against the higher post to which he is otherwise entitled he is to be allowed all the consequential benefits if his right to hold higher post has been established.
12. In view of the above .Facts the impugned notification dated 13.03.2001 is set aside and the original, notification dated 12.02.1998 whereby the ^appellant's promotion was ante-dated w.e.f.
01.08.1986 was whereby the appellant's promotion was ante-dated w.e.f. 01.08.1986 was allowed is restored. The appellant will deem to have been promoted as A.D.E. (B-17) with effect from 01.08.1986., The Seniority List of A.D.E. Should be corrected accordingly and his promotion as D.E.
Should be treated with effect from the date his next junior was promoted as Division Engineer if . He is otherwise considered for promotion. His subsequent promotion will be governed as per rules.
13. No order as to costs.
14. Parties be informed accordingly.