' JUSTICE (R.) TANVIR BASHIR ANSARI (CHAIRMAN).--- The appellant has filed this appeal.To assail the seniority list of TCR, Gr-II issued by the respondent No,1 on 11-8-2003 whereby the respondent No,2 has been placed at Serial No,3 while the appellant has been shown at Serial No,22. He filed departmental appeal on 8-11-2003 which was dismissed vide the final order, dated 22-4-2004.
2. The case of the appellant is that he was recruited as Ticket Collector, Gr-I in the same batch as respondent No,2 after having passed the prescribed course (T-7(b)) for TCRs from Walton Training School, Lahore and was placed at Serial No,11 of the merit list while the respondent No,2 was shown at Serial No,22. Consequently, according to A the seniority list of TCRs, Gr-I issued` on 27-2-1986, the appellant was mentioned at Serial No,188 while the respondent No,2 figured at Serial No,197. Duting the course of his service, the appellant was imposed penalty of ceasing of his service on account of unauthorized absence vide order, dated 4-6-1994. This order was however, withdrawn vide order passed by the competent authority in January, 1997 whereafter the appellant resumed his service.
It is urged in the appeal that in the absence of an order to the contrary, the appellant shall be deemed to have been reinstated in service allowing all accruing benefits including the right of promotion as TCR, Gr-II with effect from the date when his junior i,e, respondent No,2 was promoted on 31-5-1995.
3. The appeal was admitted to regular hearing on 5-7-2004 following which the respondent No,1 filed its objections both on law and facts of the case. The case of the appellant is controverted on the ground that the appellant after availing leave without pay frqm 13-9-1991 to 12-9-1992 did not join his duty and remained absence without leave or authority consequent upon which he incurred ceasing of his employment as per order, dated 4-6-1994 of the competent authority. Later vide order, dated (sic)-1-1997, the order of ceasing of service was withdrawn and the entire period of absence till that date was treated as leave without pay. According to the respondent No,1, this period shall. Not count for qualifying service for pension etc. In the meanwhile on 31-5-1995, the respondent No,2 was promoted as TCR, Gr-II when the appellant was not in service and obviously could not be considered for promotion. The appellant was subsequently promoted as TCR, Gr-II on regular basis on 23-2-1999 upon the availability of the post and his seniority as TCR, Gr-II was accordingly fixed lower than the respondent No,2 who was rightly promoted to TCR, Gr-II on 31-5- 1995.
4. Mr. Abdul Rehman Siddiqui, Advocate for the appellant contends that admittedly the appellant was senior to the respondent No,2 in the lower grade i,e, TCR, Gr-I. The order withdrawing the penalty of ceasure of service is silent regarding the intervening period and therefore, the appellant could not be debarred from claiming his seniority in TCR, Gr-II from the date his junior (respondent No,2) was promoted to this grade on 31-5-1995 and that the impugned seniority list is to be modified/amended accordingly.
5. The learned counsel relied upon para.406 a, b and c of the Personnel Manual of Pakistan Railways to contend that it is only an employee who is undergoing punishment specified therein who shall be debarred from promotion and as the appellant was not imposed any penalty he could not be so barred.
6. On the other hand Miss Shaista Altaf, Advocate on behalf of the respondent No,1 contends that although the appellant was senior to respondent No,2 in TCR, Gr-I on the basis of merit and his seniority was also indicated above the respondent No,2 in the seniority list of TCR, Gr-I issued on 27-2-1986, the appellant while working as TCR, Gr-I availed leave without pay of 365 days from 13- 9-1991 to 12-9-1992. After the expiry of this leave period, he continued to remain absent without leave or authority for a further period of over 4-1/2 years. During the period of his unauthorized absence, the appellant incurred the ceasure of his service vide order of the competent authority, dated 4-6-1994 under the provision of Rule 704 of Personnel Manual read with para.9 of the Revised Leave Rules of 1980. According to the learned counsel while the appellant was not in service, the case of respondent No,2 was taken up for promotion to TCR, Gr-II when a post became available and in accordance with the recommendation of the Departmental Promotion Committee, the respondent No,2 was promoted on regular basis to TCR, Gr-II on 31-5-1995. Narrating the facts further, the learned counsel for the respondents states that it was in January, 1997 when order of ceasing of service of appellant was withdrawn and the entire period till that date was treated as leave without pay and this period also did not count for qualifying service for pension etc. The appellant was duly considered for promotion and upon availability of vacancy of TCR, Gr-II and after fulfilling of other formalities, the appellant was promoted as TCR, Gr-II on 23-2-1999.
According to the learned counsel, the seniority list of TCR, Gr-II impugned in this appeal was rightly drawn up and no exception to the same can be raised by the appellant on any count.
7. Arguments have been heard and record perused.
8. From a perusal of the record it transpires that the appellant as well as the respondent No,2 were recruited as TCR, Gr-I after having passed the prescribed course, T-7(b) for TCRs held from 23-11- 1985 to 22-12-1985. As per the copy of the result placed on record the appellant was shown at the 11th position while the respondent No,2 figured at the 22nd ?Osition according to the merit list of the said result. Consequently, in the seniority list of TCR, Gr-I circulated on 27-2-1986, the appellant was shown at Serial No,188 above the respondent No,2 who was shown at Serial No,197. However, facts as depicted from the record show that the appellant availed of leave without pay for 365 days from 13-9-1991 to 12-9-1992 but uncontroverteduki not nis duty upon the expiry of the said leave and remained absent from duty till at last January, 1997 when the order of the ceasure of his service, dated 4-6-1994 was withdrawn. The appellant does not dispute the fact that it was during the subsistence of the order, dated 4-6-1994 relating to the ceasure of his service when the case of respondent No,2 was taken up for promotion to TCR, Gr-II. It is also established from the record that the appellant was in fact not in service when the respondent No,2 was considered for promotion and when, he was actually promoted on 31-5-1995 upon the recommendation of Departmental Promotion Committee. Not being in service, the appellant obviously could not be considered for promotion. It is further borne out from the record that the entire period of absence of the appellant was treated as leave without pay. Upon the resumption of his duties after issuance of the order No,443-E/A/9/E.5/94, dated January, 1997, the appellant was considered for promotion when a post of TCR, Gr-II became available against which post, the appellant was promoted on 23-2-1999.
9. It shall be in the back-drop of these facts that the arguments addressed by the learned counsel for the parties are to be analyzed.
10. There is no cavil with the proposition that under section 8(4), CSA, 1973 seniority in a post service or cadre to which a civil servant is promoted shall take effect from the date of regular appointment to the post. There is also no dispute regarding the legal position that civil servants who are selected for promotion to a higher post in one batch shall on their promotion to the higher post retain their inter se seniority as in the lower post. This provision of law shall not be of any avail to the appellant as admittedly the appellant and respondent No,2 were not selected for promotion to a higher post in one batch. As hereinbefore mentioned, respondent No,2 was promoted as TCR, Gr-II on 31-5-1995 when the appellant was not even in service (on account of the ceasure of his service) while the appellant was promoted to this higher post on 23-2-1999. Further, the seniority of respondent No,2 in the higher post shall take effect from the date of his regular appointment i,e, 31-5-1995 while the seniority of the appellant shall reckon from 23-2-1999, his date of regular promotion. For the same reason the reliance placed by the learned counsel for the appellant on the case of 1973 SCM R 304 title the Province of the Punjab through the Secretary, Services and General Administration v. Syed Muhammad Ashraf and 1985 SCM R 1158 titled Government of N.-W.F.P. And others v. Bunner Khan and others is misplaced.
11. An examination of the record and what has gleaned from the arguments of both the learned counsel, it is established that neither the appellant and respondent No,2 were promoted in one batch nor can it be said that the appellant could not be considered for promotion on 31-5-1995 for circumstances beyond his control. As already stated, it was on account of his unauthorized absence that the appellant was visited with ceasure of his service. He was not in service at the relevant time as he was reinstated only in January, 1997 and that too considering the entire intervening period as leave without pay.
12. The contention made upon the strength of para.406, a, b and c is also devoid of force. Para. 406 is reproduced as under:--- "406. Promotion of staff undergoing punishment.---
(a) An employee who is undergoing punishment of reduction to the lower stage of pay in the same time scale or to a lower grade or withholding of periodical increment, for whatever reason, shall not be promoted to or put to official in a higher grade than the one in which he was working prior to the punishment unless the competent authority is prepared to review his decision and cancel the remainder of the punishment due.
(b) If an employee is not put to officiate in or promoted to a higher grade because of his serving out period of punishment at the time, the man next junior to him may be promoted to officiate but the superseded person, can, on completion of the punishment period, be considered for such promotion and will, if considered suitable, displace the person who was put to officiate in the meantime.
(c) In cases in which the period of punishment is very nearly over, it would not be worthwhile to promote the junior men for a short period, i,e, less than 22 days and revert him again to promote the person undergoing punishment. In such cases it would be just to cancel the remained period of punishment."
' The case of the appellant does not fall within the ambit of sub-clause (a) as the appellant was not undergoing any punishment as specified therein. In fact at the time of the regular promotion of respondent No,2, the appellant was not in service on account of the order of ceasing of service based by the competent authority. For the same parity of reason, nothing contained in sub-clause
(b) or (c) is applicable in the circumstances.
13. For all that has been discussed above it is found that the seniority list of TCR, Gr-II impugned in this appeal as far it relates to the appellant and respondent No,2 is unexceptionable as the same has been drawn up in accordance with the dates of regular promotion to the higher grade in accordance with law. The appellant and respondent No,2 were not promoted to the higher post in one batch and therefore, the appellant cannot seek the benefit of his seniority in the lower grade.
Further the competent authority had ordered the ceasure of service of the appellant on account of his long unauthorized absence and thus, his case cannot fall within the purview of para.406(a)(b)
(c) of the Personnel Manual of Pak. Railways. The subsequent withdrawal simpliciter of the order of ceasing of service of the appellant after the regular promotion of respondent No,2 shall be of no avail to the appellant. Resultantly the appeal fails which is hereby dismissed.
14. No order as to cost. Parties be informed.