ZAHEER AHMED (MEMBER).--- This is an appeal against order dated 31-5-2004 whereby respondent No,4 allegedly junior to him was promoted as Office Superintendent and the appellant was not considered for promotion by the Departmental Promotion Committee (D.P.C.) being not qualified P-32, Course, 2000. He preferred departmental appeal on 19-6-2004 which remained un responded. After waiting of statutory period, the instant appeal has been filed by the appellant on 12-10-2004 before the Federal Service Tribunal, to invoke appellate jurisdiction and with the prayer that may be promoted to Office Superintendent from the date his junior private respondent No,4 was promoted.
2. Brief facts of the case are that the appellant while working as Head Clerk (BS-11) in the General Branch , Headquarters Office, Lahors was transferred in the office of Divisional Superintendent, Pakistan Railways, Sukkur in the same capacity vide order dated 27-6-2002, without giving any reason. The appellant joined his duties at Sukkur, under protest. After the appellant had joined duties at Sukkur, the respondents issued a circular dated 7-9-2002 to all the Divisional Superintendents, Divisional Offices, Lahore, Managing Director/ Carriage Factory, Deputy General Manager, Lahore/Islamabad, Risalpur and Director-General, Pakistan Railways Academy, Multan directing them to have the Head Clerks who have been nominated to attend P-32 Training Course being held at Walton, Lahore w,e,f, 16-9-2002. The name of the appellant was not included in the said circular. The appellant submitted an application dated 9-9-2002 through proper channel requesting the Authorities to include his name for the training of said Course on the ground that the name of his junior Head Clerk Shafaat Ali Khan has been included. His request was not acceded to, Later on, the appellant was transferred back to Lahore vide order dated 10-5-2003 at his own request and was posted in D.S. Office, Lahore. However, prior to his transfer from Sukkur Division to Lahore Division, the appellant had to file an affidavit dated 28-3-2003 and 19-4-2003 stating therein:-- "that the deponent solemnly declare that I will rank junior to all those Head Clerks working in the Divisional Superintendent/ Workshop Mughalpura, D.S. Or M.D. Dry Port where vacancy exist irrespective of rate of pay drawn by me at the time of resumption: Moreover, I shall not claim my seniority in new unit, in case of my request is acceded to for transfer from Sukkur Division to Lahore, other than Headquarters Office."
' On receipt of this affidavit, his transfer order was issued. After joining at D.S. Office, Lahore, the appellant again submitted his willingness for nomination of the said course vide application dated 11-7-2003. As the course was prerequisite for his next promotion as Office Superintendent in BS-16.
After having failed to receive any remedy from the respondent-Department, the appellant has now approached the Federal Service Tribunal for seeking relief.
3. The learned counsel for the appellant while starting his arguments stated that the appellant had been deprived of his promotion to the post of Office Superintendent which was due to him as he was having the requisite seniority. .By transferring him to another Division, the respondents showed a mala fide in a way that the junior to the appellant i,e, private .Respondent No,4 was given an opportunity to attend the P-32 course instead of the appellant. The counsel further stated that the appellant joined his posting at Sukkur under protest as his transfer was against the departmental rules under which he could not be transferred out of his Division. He was transferred to another Division illegally to give advantage to private respondent No,4 Shafaat Ali Khan who was junior to him. With the transferring of the appellant he became senior most and thus was nominated to the P-32 course at Walton, for promotion to Office Superintendent. After joining Sukkur Division under protest, the appellant started agitating against the -inter-Divisional transfer. However, his requests were ignored till he submitted an affidavit, whereby he agreed to forego his seniority on his posting back to Lahore Division and become junior to all other Head Clerks working in his unit in Lahore. This was a case of pure victimization/and mala fide, the appellant being the senior most was denied an opportunity to attend P-32 course at Walton, Lahore. On his return to Lahore, the appellant again requested for the participation in the said course because his junior private respondent No,4 had already done the course, but he was again denied a chance to participation in the course, even though according to the Training Calendar, courses were held in the years, 2004, 2005 and 2006.
The counsel further argued that in spite of the clear Court orders by F.S.T. On 4-1-2005 that the appellant may be considered for training of P-32 Course, the department did not consider the appellant for the said course. Under Railways rules the Head Clerks over the age of 58 are exempted from P-32 training course for their promotion to Office Superintendent in BS-16. In spite of this rule, the appellant has not been considered for promotion till today. The appellant is now superannuating on 31-12-2008 and he is also very seriously sick. Under the circumstances, the counsel for the appellant vehemently argued that the appellant who has been victimized and deprived of his promotion under mala fide, should be given a pro forma promotion from the date his junior respondent No,4 was promoted with all back benefits to be included in the pension.
4. The counsel for the respondents argued that under the rules the appellant could not be promoted to Office Superintendent because he did not fulfil the requisite qualifications as he had not done the P-32 Training Course. The private respondent No,4 has successfully completed the P- 32 Course and because of his seniority, he was sent for P-32 Course at Walton. The appellant had himself given an affidavit to the department that if he is transferred, back to Lahore he will not claim the seniority, therefore he could not be considered and sent for the said course, in the presence of the affidavit given by him. His transfer out of the Lahore Division to Sukkur Division was not because of any mala fide but was due to exigency of service, as such it was not illegal. The department could not allow him his original seniority when he himself had agreed to be junior most, as such on his return also he could not be nominated for the P-32 Training Course. The counsel also argued that it is a closed chapter as the appellant is retiring from his service at the end of December, 2008 and at this stage he cannot be given pro forma promotion, especially when he had not done the P-32 course which is essential for promotion from Head Clerk to Office Superintendent. On the basis of these arguments, the counsel insisted that it was a closed chapter and the appeal cannot be entertained at this stage and may therefore be dismissed.
5. Heard the arguments of both the sides and perused the record in detail.
6. We are of the view, that the appellant has not been treated in a just and legal manner as he was transferred from Lahore Division to Sukkur Division- without any exigency of service and against the rules and practice of the Railways Department. He was thus denied the opportunity to attend the P- 32 Course as the senior most Head Clerk. His requests for inclusion in the course submitted from Sukkur was not entertained and his return to Lahore, his requests were also not entertained, even though, P-32 Training Courses were scheduled during 2004 and 2005, as per calendar of trainings.
It is very obvious that in order to come back to Lahore, he gave an affidavit foregoing his seniority under very compelling circumstances. Therefore, the said affidavit cannot be taken as a lawful reason for denying him his seniority and right of promotion. Even if he was denied participation in the P-32 course during the years, 2003, 2004, 2005 and 2006, after he attained the age of 58 years, he got exempted from the P-32 Training course for his promotion, under the departmental rules, justice demands that he should have been considered and promoted to the higher post of Office Superintendent, after 1-1-2007, the date when he attained the age of 58 years, so that he could at least get his pensionary benefits.
' Furthermore, the respondents did not take appropriate action on the directions of the Federal Service Tribunal conveyed vide Court Order dated 4-1-2005 reproduced below:--- "The appellant is aggrieved by order dated 31-5-2004 by which his juniors were promoted. He was not promoted because of his transfer to Sukkur and then posting back to Lahore on his own request. The point for determination is whether transfer of an employee out of Division would deprive him of his, right to be considered for promotion. The appeal is admitted to regular hearing.
Meanwhile the appellant should be considered for training of P-32 Course."
' In spite of this Court order, the appellant was not given an opportunity to participate in P-32 Training Course till he got exempted from the said condition for his promotion to Office Superintendent from January, 2006 onwards. The department should have promoted him with the batch of Head Clerks who got promoted to higher grade after 1st January, 2007 (the date when appellant got exempted from P-32 Training Course) after attaining the 58 years of age as per departmental rules. We are fortified in our view by the FR-17 which reads as follows:--- ' that a civil servant who was entitled to be promoted from a particular date was, for no fault of his own, wrongfully 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 up gradation arising from the ante-dated fixation of his seniority.
' We are also fortified to take this view by apex Court judgment reported as PLD 1991 SC 1118 which reads as follows:-- "That pro forma promotion from a date in retrospect would entitle civil servant to claim pay of the period that he was improperly denied his legal right of promotion."
7. Foregoing in view, the appeal is partly accepted, since the official is still in service, he may be given pro forma promotion to the higher grade of Office Superintendent BS-16 (if he is otherwise eligible) from the date he got exempted from P-32 Training Course (due to age factor) along with the 1st batch of Head Clerks who were promoted after this date. He will be entitled to all back benefits to be included in his pension calculations.
8. No order as to costs. Parties be informed.