MUHAMMAD HASHIM KHAN KAKAR, (CHAIRMAN).---This appeal under section 4 of the Balochistan Service Tribunals Act, 1974 has been filed by the appellant with the following prayer:--- "In view of the facts, circumstances and grounds enumerated in the preceding paragraphs and in the larger interest of justice, fairplay, and equity it is prayed that this honourable Court may graciously be pleased to:
(i) Set aside impugned order dated 5-9-2009 whereby private respondents were promoted as Naib-Tehsildar on regular basis in spite of the fact that they had forgone promotion.
(ii) Declare that appellant is entitled to pro forma promotion and ante-dated seniority from the date he, was eligible for promotion. As Naib-Tehsildar but ignored due to administrative fault and for no fault of appellant.
(iii) Declare that continuous posting of appellant as Naib-Tehsildar on acting/current charge basis for indefinite period, when he was eligible to be promoted on regular basis, is illegal and whimsical and he is entitled to be confirmed as Naib-Tehsildar from the date he was given charge of the said post.
(iv) Direct the official respondents to obey and give effect to the recommendations made by the Zonal Selection/Promotion Committee for Appellant's promotion as Naib-Tehsildar on regular basis in its meeting held on 29-10-2008.
(v) Direct the official respondents to process the case of appellant for grant of pro forma promotion, with all back/consequential benefits, on merits and strictly in accordance with law.
(vi) Direct the official respondents to prepare and circulate a seniority list of Naib-Tehsildars strictly in accordance with law.
(vii) Grant any other relief which may be deemed just and appropriate in the circumstances of the case; and
(viii) Award costs under section 35 and compensatory costs under 35-A C.P.C. 1908, as amended by the Civil Law Reforms Act, 1994 (PLD 1995 Central Statutes 1)."
2. It is the case of appellant that after passing the departmental examination he was appointed as Patwari (B-5) in the years 1978. Consequent upon passing departmental examination of Kanungo in the year 1989, he was promoted as Kanungo (B-9) on 21-6-1993. He has been holding the post of Naib-Tehsildar on acting/current charge basis since 2003. Seniority list of Kanungo was issued by the then Commissioner Zhob Division on 1-1-2001 wherein appellant was shown at S.No,10. A meeting of the Zonal Selection/Promotion Committee Loralai was held on 27-6-2005 for promotion of Revenue Subordinate Staff to fill in 5 posts of Mohasibs lying vacant: and it was observed that according to the seniority list of Kanungos of defunct Zhob Division, senior most Kanungos from S.No,1 to S.No,11 stood promoted as Naib-Tehsildars on current charge basis, as such, on the recommendations of aforesaid committee Kanungos at S.Nos.15 and 16 namely Muhammad Hanif and Noor Muhammad of District Zhob and Barkhan were promoted as Mohasib (B-11) subject to the condition that they will not claim seniority over those who may be senior to them vide order 13-9- 2005. As per appellants a meeting of zonal selection/promotion committee was held on 29-10- 2008 wherein the appellant's case of promotion as Naib-Tehsildar was approved, and the names of Mohasibs i.e, Muhammad Hanif and Noor Muhammad (Juniors to appellant) were also considered for their further promotion to the rank of Naib-Tehsildar and approval was accordingly accorded. It has further been stated that contrary to the recommendations of the zonal promotion committee, the promotion of appellant as Niab-Tehsildar was altogether ignored without assigning any reason and Mohasibs Muhammad Hanif and Noor Muhammad (Juniors to the appellant) were further promoted as Naib-Tehsildars on regular basis vide order dated 10-4-2009 passed by the Senior Member Board of Revenue. According to the appellant in spite of the fact that private respondents had foregone their promotion, impugned order was issued in pursuance whereof they were promoted as Naib-Tehsildars on regular basis. Nothing is on record that their names were either placed before/considered by the Zonal Selection/Promotion Committee or they were recommended for promotion.
3. The appellant being dissatisfied/aggrieved of the impugned order made departmental representation, which remained unturned. Lastly while finding no other way out, he approached this Tribunal by filing the instant appeal.
4. On the other hand the respondents contested the appeal on legal and factual aspects by filing their written reply.
5. We have heard the learned counsel for the parties and also perused the record with their valuable assistance.
6. The record reveals that the appellant is holding the post of Naib-Tehsildar on acting/current charge basis since 2003 and his promotion case was considered by the Zonal Selection/Promotion Committee in its meeting held on 29-10-2008 and was recommended for promotion as Naib- Tehsildar on regular basis but the respondent No,1 has ignored the recommendation of promotion committee without assigning any reason in clear violation of Rule 6 of the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979 which speaks as under:--- "6. Where an appointing authority for basic pay scales 15 and below and equivalent does not accept the recommendation of the appropriate Departmental Promotion Committee, it shall record reasons therefor and obtain orders of the next higher authority."
7. The record is also indicative of the fact that the names of respondents Nos.3 to 5 were neither considered nor their names were placed and recommended by the Zonal Promotion/Selection Committee. It is settled principle of law that if any person forgone his turn of promotion, then his name should have placed at the bottom of the seniority list and he should have been considered for promotion on his own turn. The promotion of respondents Nos.3 to 5 while ignoring the appellant is clear violation of Rule 4(d) of the Balochistan Civil Servants (Seniority) Rules, 2008 which provides as under:--- "4(d). That if a senior person declines promotion to suit his convenience, he should lose his seniority to the next junior person who is promoted in the relevant vacancy and that he should not be considered for promotion till after his case for promotion has, been considered again by the Selection Board/Departmental Promotion Committee in the subsequent meeting."
8. The respondents Nos.1 and 2 have not denied the appearance of appellant before the Zonal Selection/Promotion Committee and his recommended by the committee in its meeting held on 29-10-2008. They contended that their promotion case was deferred due to non-availability of vacancy but the record negates their contention as two Mohasibs i.e, namely Muhammad Hanif and Noor Muhammad who were at S.Nos.15 and 16 are promoted as Naib-Tehsildar on 10-4-2009 while respondents Nos.3 to 5 have been promoted as Naib-Tehsildar on 5-9-2009 on regular basis meaning thereby at that time the vacant positions/vacancies of Naib-Tehsildars were available but the departmental authority while committing gross negligence has ignored the appellant, although he was senior and eligible for promotion.
9. It is also admitted feature of the case that the appellant has been discharging official functions as Naib-Tehsildar on acting/current charge basis since 2003 and a legitimate expectancy of future promotion/ advancement must came to reside in his mind which cannot be taken away by whimsical erroneous consideration and negligence on the part of departmental authorities.
10. The record further reveals that initially seniority list was issued by the then Commissioner Zhob Division on 1-1-2001 wherein the appellant was placed at S.No,10 and Muhammad Hanif and Noor, Muhammad were shown junior to appellant. The final seniority list of Kanongos issued by DCO Loralai, as stood on 1-1-2008, wherein again appellant was shown at S.No,7. Names of the private respondents were shown at S.Nos.2, 3 and 4 whereagainst in the column of remarks it has been clearly mentioned that they had foregone their promotion. Although both the lists were circulated among the incumbent officers but no objection whatsoever in nature was raised by anyone, The record also reveals that in the year 2009 the respondents were promoted as Naib-Tehsildars while the appellant was ignored illegally. In this respect the relevant portion' of the dictum laid down by the honourable Supreme Court of Pakistan reported in 2006 SCMR page 1998 is reproduced hereinbelow:-- "Civil servant who was asked to hold a higher post to which he was subsequently promoted on regular basis, was entitled to the salary etc. Attaching to such post for the period that he held the same. Such civil servant was also entitled to any other benefits which might be associated with such post. If a vacancy existed in the higher cadre to which a civil servant was qualified to be promoted on regular basis but was not so promoted without any fault on his part and was instead put on such post on officiating basis, then on his regular promotion to such post, the civil servant would be deemed to have been so promoted to the same from the date from which he was allowed to hold the higher post, unless justifiable reasons existed to hold otherwise."
11. In view of the principle laid down by the honourable Supreme Court and for the discussion made hereinabove, the appeal is allowed. The promotion of the appellant as Naib-Tehsildar be considered on regular basis from the date 10-4-2009 when his juniors were promoted as Naib- Tehsildars. In case of non-availability of vacancy the junior most Naib-Tehsildar who was promoted out of turn be 'reverted to his earlier position. Moreover, he will be replaced by the appellant. The respondents are directed to prepare a fresh provisional seniority list strictly in accordance with law of Naib-Tehsildars belonging to Zhob Division and after circulation among the incumbent officials, objections should be invited prior to issuance of final seniority list. There shall be no order as to cost.