N. A. CHOUDHURY (MEMBER).-The appellant, Mr. S. Bashir Ahmad Kazmi, entered into service as Upper Division Clerk in the Undivided India, in the office of Accountant General, UP on 2nd March, 1944. He opted out for Pakistan and joined Accountant General, Pakistan Revenues' Office on 10th March, 1948. The option which was taken from him included the stipulation that tire then existing terms and conditions of service were guaranteed by the Government of Pakistan.
2. Para 143 of they Auditor General's Manual of Standing Orders which regulates the conditions of counting and fixation of seniority in SAS cadre appointment to which is made after passing the SAS Examina--tion, is reproduced below. The reading of the para represents the wording before it was amended in 1955 ; "143. Subject to the conditions to paragraph 139 and subject also to the right of the appointing authority to make any special pro--motion in accordance with paragraph 144, Clerks or Divisional Accountants eligible for appointment to the Subordinate Accounts Service shall ordinarily be selected in the order of the dates of their passing the examination, but in order to allow for length of service and experience, every three complete years of the excess in length of service (either as a Clerk in the Audit Office Or a Divisional Accountant or an Accounts Clerk in a Divisional or Sub- Divisional Office of the Public Works Department) should be treated as compensating for one year's delay in passing the Examination."
3. According to the unamended provision of this para, every three complete years of the excess in length of service as UDC was to be treated as compensating for one year's delay in the passing of SAS Examination. There was no maximum limit to this benefit of length of service as experi--ence in the clerical cadres.
4. The provision of the above referred para. Of the Manual was amended in July, 1955. The amendment was to the effect that from the examination held after July 1955 the weightage so allowed shall not exceed three years, i.e. The benefit shall be limited to the difference in length of service upto nine years only.
The appellant passed his SAS Examination in both the Parts on 15th June, 1963 when he had put in 18 years service in UDC cadre. His seniority on appointment to the SAS cadre was fixed giving him the benefit of length of service of 9 years, and he was accordingly allowed weightage for three years. His presumptive date of appointment to SAS cadre was therefore, fixed as 15th June, 1960.
6. The appellant claimed that since the conditions of service available to him on his recruitment as UDC in India, were guaranteed by the succes--sor Government through his option to serve in Pakistan, the amendment which limits the weightage to maximum three years violates the terms and conditions of that service, and therefore, his seniority so fixed was incorrect. He accordingly represented to the Accountant General concerned and then to the Auditor General for allowing him six years weightage on account of 18 years length of service and fix his presumptive date of seniority as 15th June, 1957. This would have given him seniority over M/s. M. A. Aleem, Ibne Hassan Mufti and Mohammad Yaqoob Khan, SAS Accountants.
7. His representation was considered by the Accountant General, Sind and then by the Auditor General, but it was rejected on the ground that since he had passed the SAS Examination in 1963, subsequent to the operation of amended provision of para 143 of the Manual of Standing Orders, his case of seniority has to be regulated according to the amended provisions, limiting the weightage to 3 years only. The Auditor General made confirmation of the SAS Accountants, on the basis of seniority so fixed by him.
8. For the purpose of appreciation of the departmental position, it is necessary to mention that the cadre of SAS is local for every office of the Accountant General and Seniority of SAS Accountants of each Accountant General's office is maintained separately-
9. On dissolution of One-Unit, the specialist office of Director of Audit and Accounts Works was decentralised and SAS Accountants working in that office were transferred along with their work and the posts they were holding, retaining their continuity in service to various other offices of the Accountants General in the department. The appellant, who was working on deputation to the office of Director Commercial Audit from his parent department the Director of Audit and Accounts Works, was transferred in the same manner to the office of the Comptroller, Sind (now Accountant General, Sind) with effect from 1st July, 1970.
10. Under para 6 (i) (b) of the Establishment Division Office Memo No. 6/15/48 M. E., dated 31st March, 1951, his seniority was to be regula--ted treating him continuously in service retaining his position of seniority in SAS, which he was enjoying in his original office of the Director of Audit and Accounts Works. However, on 28th December, 1970, a batch of 37 SAS Accountants in the office of the Comptroller, Sind, was con--firmed without taking cognisance of the seniority of those Accountants who were transferred from Director of Audit and Accounts Works. The Auditor General of Pakistan subsequently ordered deconfirmation of these 37 Accountants so as to correctly fix the seniority after considering the claim of those transferred from the Director of Audit and Accounts Works. In fact, after deconfirmation of these 37 Accountants, correct seniority list was prepared for being circulated. In the meantime, decon--firmed SAS Accountants obtained status quo from the Court of Law in Civil Suit and consequently, the correct seniority list so prepared, could not be allowed to operate. This civil suit abated on the establishment of the Service Tribunal on 22nd February, 1974.
11. During the pendency of the civil suit, in the exigency of service, some promotions from SAS Accountants to the cadre of Assistant Accounts Officers had to be made by the Auditor General on the basis of the uncorrected old seniority. The three respondent AAOs. Mentioned above, were promoted in this batch. Failing to obtain redress from the Auditor General, the appeal under disposal has been filed with the Service Tribunal.
12. It was argued by the learned counsel for the appellant that the amendment in the provisions of para. 143 of the Manual of Standing Orders adversely affects and violates the service conditions guaranteed to the appellant on his option to serve in Pakistan because it limits the weightage to 3 years which would have been available to him under his circumstances of the length of service, to six years' weightage. As such, he was entitled to this relief and his seniority should be fixed on the basis of unamended provision of the said para. Of the Manual, allowing him benefit of full 18 years length of service.
13. It was further argued by the learned counsel that even if the weightage is limited to 3 years under the amended provision of the para, still the appellant becomes senior at least to one of the respondent Accountants, namely Mr. M. A. Aleem, who was promoted earlier as Assistant Accounts Officer than the petitioner. In the circumstances explained above. Even on the basis of the seniority available to the petitioner under the amended provisions of the para. He should have been considered for appointment to the post of Assistant Accounts Officer before Mr. M. A. Aleem was promoted.
14. The learned counsel also argued that since the petitioner has been deprived of serving on the post of AAO for no fault of his own, but this occurred due to the fault or mistake of the departmental authority, lie was entitled to that appointment with effect from the date his junior was promoted, with all the consequential benefits in seniority as AAO, including the salary and allowances admissible under the rules. The learned counsel relied on the judgment of the Honourable High Court reported in PLD 1973 Lah. 42-Writ Petition No. 129 of 1967, decided on 11th February, 1972. The relevant portion of the judgment of his Lordship Mr. Justice Nasim Hasan Shah runs an follows :- "If a civil servant is deprived of serving on a higher post for no fault of his own, but this occurs due to the fault or mistake of the Gov--ernment and subsequently it is found that the civil servant was in fact entitled .To serve on the higher post, he would be entitled to salary of the higher post because he has been deprived of rendering service in the higher post for no fault of his own."
15. It was contended by the departmental representative and the learned counsel for State that jurisdiction of the Service Tribunal is barred from adjudication in cases of promotions and transfers under section 4 (1) (b) of the Service Tribunals Act, 1973. The claim of the appellant for promotion and monetary benefit accruing there from cannot, therefore, be the subject of scrutiny by the Service Tribunal.
16. It was further argued on behalf of the respondent that if at all pro forma promotion was necessary to consider, it was not covered by the relevant rules because he was serving within the department and the benefit of pro forma promotion is admissible only to those officers who are serving outside the normal line of the office at the time of promotion of their juniors. Furthermore, it was also contended on behalf of the respondent department that the promotion under the next below rules could also not be considered because he was not present in his office at the time of the promotion of his junior.
17. It was also pointed out that arrears of pay, if any, accruing to a Government servant on revision of his promotion order or seniority position, are not paid by the Government and consideration may be made that payment of such arrears is not ordered. The learned counsel for State also argued that since no specific request for arrear of salary has been made in the appeal, this issue cannot be framed now on behalf of the appellant.
18. After assessing the argument of both sides, I am of the opinion that the service guarantee available to the petitioner was in his capacity as UDC only, which is a distinct cadre from the SAS Accountant, and the promotion to the post of SAS Accountant is not in the normal line of the UDC unless he passes that examination. The amendment made in the relevant para. Of the Manual of Standing Orders, therefore, does not violate any guaranteed terms and conditions of service of the appellant.
Moreover under the rules at the time of option in 1947, the UDCs were entitled to avail of only 3 chances for passing the SAS Examination, which was extended to 4 in exceptional circumstances by the Auditor General. When the petitioner passed the SAS the relevant rules were changed and 7 chance for passing the SAS Examination were allowed normally and in special cases upto 9 chances were allowed. The standard of the SAS Examination was, therefore, relaxed and lowered to that extent. Moreover, the petitioner appeared in the SAS Examination with full consciousness of the amended provision of the para. Of the Manual, limiting the weightage to 3 years. Mr. Bashir Kazmi availed of more than 4 chances to clear his examination. As such if at all, any guarantees or normal expectations to avail of weightage without any limit was there, it cannot be extended to him on account of the circumstances mentioned above. His seniority in the SAS has, therefore, been correctly fixed below M/s. Ibne Hasan Mufti and Mohammad Yaqoob Khan, and above Mr. M.
A. Aleem, treating his assumed date of passing the SAS as 15th June 1969 correctly.
19. As to the question of adjudication on the point of promotion, a careful reading of section 4 (1)
(b) of the Service Tribunals Act leaves no doubt in my mind about the intention of the provisions of the Act. What is intended to be barred is the scrutiny of the administrative discre--tion, to determine fitness or otherwise of a civil servant to hold a particular post or for promotion to the higher post. The consideration for such a promotion under the applicable rules, is a right of the civil servant, and the above referred provisions of the Service Tribunal's Act do not place any bar on this scrutiny. It is nowhere contended by the respondent department that at any stage Mr. Bashir Kazmi, the appellant, was consi--dered as unfit for promotion to AAO's cadre or to hold that post. In fact, he has been promoted to the post of AAO with effect from a subsequent date on approval of the competent Departmental Promotion Committee. The clear inference, in my opinion, is that he has been deprived of serving on a, higher post for no fault of his own.
20. I do not also agree with the contention of the department that it was a case of a pro forma promotion and could not be so ordered because such a promotion is admissible only to those who are out side the department. It should be known to the Auditor-General's department that SAS cadre being a local cadre is confined to every individual office of the Accountant General and Mr. Kazmi being on deputation from one AG's office to another on the crucial date, was entitled to pro forma promotion as he was outside his parent office for the purpose of the rule governing pro formal promotion. However, this is not a case of pro forma promotion at all, nor has the petitioner claimed promotion of this category.
21. I also do not feel persuaded to accept the contention of the departmental representative that his promotion should be considered under next below rule and as such it would come within the framework of a case of promotion, thus taking away the jurisdiction of the Tribunal for the secrutiny of the same. It is not a case of promotion under the next below rule. The admitted position of the operative rules which should be known to the Auditor General's department is that whenever a deputationist officer becomes due for promotion in turn of seniority in his parent office; his case has to be considered by the competent Departmental Promotion Committee, and determine his fitness or otherwise, which should be recorded in the minutes. In both the cases, he has to be informed of the decision of the Departmental Promotion Committee. If he is found fit for such a promotion, he has to be offerred the appointment and asked to return to the parent office to claim the same, otherwise the next man can be, under the rules, promoted: and the deputationist approved for such promotion is entitled to claim the actual promotion only on his return to the parent office.
22. In the circumstances of the cases as I see, although the Auditor General department was not really at fault on account of there being a status qua order of a competent Court, the fact remains that while the case of promotion of next junior man, i.e. Mr. Aleem, was being considered, the Departmental Promotion Committee did not consider the case of Mr. Bashir Kazmi who was on deputation in turn of seniority, which was determined and fixed above Mr. Aleem, and he was not offered a chance to go back to his parent office to claim his actual promotion if he was found fit for such a promotion.
23. Judging from all the circumstances, facts and arguments of the case, it is my opinion, that the learned counsel for appellant has correctly pleased his reliance on the judgment of his Lordship Mr. Justice Nasim Hasan Shah, cited above. Clearly enough Mr. Kazim has been deprived of holding the post of Assistant Accounts Officer from the date Mr. Aleem was appointed to that post due to no fault of his own. He is, therefore, entitled to that appointment with all the consequential benefits including the arrears of pay and allowances admissible under the rules as if he had been actually appointed to that post with effect from the relevant date.
24. Respondents 3, 4 and 5 absent, proceeded ex parte.
25. Ordered accordingly.
26. Parties to be informed.