Ismail Hassan Niazi, Member.--Appellant Muhammad Akram Gill, Head Clerk, Pakistan Railways has prayed that the respondents be directed to consider him for promotion to the rank of Office Superintendent (BPS-14) and Assistant Personnel Officer (BPS-17) with effect from the date when his juniors were promoted and that he be given all back benefits. His departmental appeal/representation has not been responded.
2. The facts of the case are that the appellant was dismissed from service and he filed a departmental appeal as a result of which his dismissal was converted into compulsory retirement vide order dated 30.7.2002. Being dissatisfied he filed an Appeal No. 621(L)CS/2002 before this Tribunal wherein it was decided that since the impugned order was passed by an officer who was not authorized to do so the earlier order of punishment and the subsequent order of compulsory retirement were set aside as coram-non-judice. The case was remanded to the Pakistan Railways for fresh decision preferably within a period of 3 months. The respondents in pursuance of this judgment reinstated the appellant. from 21.5.2010' vide Order No. 724-E/8476 (Admn-II) dated 21.5.2010. This order inter-alia stated that the appellant had deposited back the amount he had received as commutation/pension etc in the CCT Office. The appellant subsequently filed a departmental representation stating that as he had qualified P-32 Course he was entitled for promotion to BPS-14. That while his appeal was before the Tribunal his juniors had been promoted.
On 22.7.2010 the respondents notified that on reinstatement the appellant was at S. No. 1 in the Seniority List of Head Clerks of Personnel Branch. It was added as under: It is pointed out that Railway Administration has filed an appeal in Supreme Court of Pakistan against his re-instatement. He has given an undertaking that he-will abide by the decision of the Supreme Court of Pakistan."
3. The learned counsel for the appellant pleaded that during the period when the latter was out of service a number of his junior colleagues were promoted to the next higher post of Superintendent (BPS-14) vide order dated 18.1.2004. Furthermore promotion was given to persons junior to the appellant and they were further promoted to Assistant Personnel Officer (BPS-17) vide order dated 20.10.2008. It was pleaded that on reinstatement the appellant stood restored to his original position/seniority and was thus entitled to promotion to the next rank to which his juniors had been promoted during his period out of service. Reliance was placed on respondent Letter No. 752- EXX(L)Admn/I-B dated 22:7.2010 which acknowledged that the appellant was the senior most Head Clerk at the time of his ouster from service. It was pleased that the respondents had not initiated any fresh proceedings against the appellant as indicated in FST's judgment. That they deliberately prevented his promotion on the plea that they had filed a CPLA before the Hon'ble apex Court. It was pleased that the appellant had been dragged into unnecessary litigation and he had been kept away from employment for no fault of his. For these reasons he was entitled to all the benefits of service i.e. seniority and back-dated promotion from the date his juniors were promoted.
Learned counsel for the appellant further pleaded that the officer had retired and the requirement of qualifying P-71 Course should be waived in his favour because rules provide for such a waiver for persons who were above 56 years of age.
4. These arguments were-resisted by the learned counsel for the respondents. It was argued that the appellant qualified the prerequisite Course P-32 for the next higher post of Office Superintendent (BPS-14) and Senior Office Superintendent (BPS-16) but he did not qualify the P-71 Course for promotion as Assistant Personnel Officer (BPS-17). It was admitted by the respondents that during the pendency of the appeal before his Tribunal his colleagues who were junior i.e. Respondent No. 4 to 10 were promoted as Office Superintendent (BPS-14). Senior Office Superintendent (BPS-16) and Assistant Personnel-Officer (BPS-17). That he was not eligible for promotion as Assistant Personnel Officer (BPS-17) as he had not qualified P-71 Course which is a prerequisite. On the question of the appellant's plea that he was entitled to promotion etc it was reiterated during the arguments in Court and through the filed Objections that he was not considered for promotion because the matter was pending before the Hon'ble Supreme Court of Pakistan as the respondents had filed. a CPLA and the case for promotion of back benefits and promotion as claimed was to be decided after the decision of the Hon'ble Supreme Court of Pakistan.
5. We have heard the arguments of both the learned counsel and perused the record.
6. It is quite obvious from the Federal Service Tribunal judgment referred supra that the case was remanded to the Department enabling them to correct a wrong by initiating fresh proceedings.
They exercised their judgment and did not initiate any fresh proceedings. We have on record a letter which states that the appellant was reinstated and had agreed to abide by the decision of the Hon'ble Supreme Court of Pakistan. It was the Department's own decision to file an Appeal before the Hon'ble Supreme Court of Pakistan instead of following direction given by the Federal Service Tribunal to initiate fresh action. There is nothing on record to show either the result of the CPLA or any restraining order from the apex Court. It is an established fact as the Hon'ble apex Court has on several occasions held that in the absence of any restraining order the judgment of the Federal Service Tribunal is in the field and has to be iftmlemented. Besides, in the absence of a restraining order the appellant on reinstatement stood restored to his original position and was entitled to be considered for promotion to the post that his juniors were promoted during his absence. He had qualified the P-32 Course and the filing of CPLA did not stand in the way of his being considered for promotion on the basis of his seniority and as per rules. As regards his promotion to BPS-17 he had not qualified the P-71 Course and, therefore, was not entitled to be considered for promotion. But this has to be viewed in light of the fact that there is no order from the respondents asking the appellant to undergo such a Course. An official cannot deal with his own case and undergo a Course on his own initiative. The plea of the learned counsel for the appellant that the latter was entitled to be considered for exemption from such a Course on the basis of his age has some weight.
7. In view of the above, as the appellant was not considered for promotion due to the circumstances that were not under his control his case deserves consideration. The respondents are, therefore, directed to consider his case for proforma promotion and in case he is promoted he should be given the benefit of seniority from the date his juniors were considered and promoted.
8. No order as to costs. Parties be informed accordingly.