Sayed Mehar Hussain Shah, Member.--The appellant, through this appeal has challenged the order dated 20.09.2008 whereby he was promoted to BS-20 on regular basis with immediate effect.
On 15.10.2008, the appellant submitted appeal/ representation for promotion from retrospective date i,e, 26.12.2002 in BS-20, which remained un-responded; hence, this appeal filed before the Tribunal on 30.01.2009.
2. Learned counsel for the appellant argued that the respondents are failing to comprehend the verdict of the Hon'ble Lahore High Court passed in Writ Petition No, 4326 of 2007, vide judgment dated 08.10.2007. He argued that the railway administration accepted the grievance of the appellant as he was promoted to the higher grade i,e, BPS-20, but his promotion was deferred from the year 2004 and several junior officers were promoted. He further argued that the respondents were to examine the case of appellant regarding fixation of his seniority from the date when he was prevented to have timely promotion and the supersession was arbitrarily allowed which ought to have been reversed after the outcome of said judgment in Writ Petition and grant of promotion by CSB. The moment the Petitioner knew about his supersession, he filed representation dated 15.10.2008, which remained un-responded; hence, this appeal.
3. Learned counsel appearing for the respondents contended that on the direction of the Hon'ble High Court, Lahore, appellant was promoted to BS-20 w,e,f, 20.09.2008. It was argued that the departmental appeal of the appellant is sell pending and his supersession has not so far been set aside by the competent, authority. It was also argued that on their promotion by superseding the appellant, contesting respondents are now senior to the appellant in light of Section-8 of the Civil Servants Act, 1973, Rule 3(c) of the Civil Servant (Seniority) Rules, 1993 and law laid down by, the Hon'ble Supreme Court reported in 1998 SCM R 2544.
4. We have considered the arguments of both sides and have also carefully perused the material placed on record. The case of appellant for promotion to BS-20 was deferred on 02.01.2006, whereas, junior to him were promoted, but w,e,f, 26.12.2005; hence, on promotion of the appellant to BS-20 on 20.09.2008, proforma promotion can be granted to him under Rule FR-17, which is reproduced hereunder:-- "F.R.17(1) Subject to any exceptions specifically made in these rules and to the provisions of sub-rule (2), an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post and shall cease to draw them as soon as he ceased to discharge those duties: Provided that the appointing authority may, if satisfied 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 and of such higher post through pro forma promotion or up-gradation arising from the ante-dated fixation of his seniority."
It is a fact that appellant was eligible for promotion to BS-20 on 26.12.2005 and being at no fault of his own, he was wrongfully prevented from rendering service to the department in the higher post and his case was deferred, although he was competing the threshold on 26.12.2005; hence, appellant is entitled to ante-dated promotion from the said date i,e, 26.12.2005. The appellant was holding qualification and fulfilling other criteria for promotion thus has a right to claim consideration of his case for promotion to next cadre. In our view, the appellant is entitled to promotion to BS-20 w,e,f, 26.12.2005, when his juniors were promoted on 02.01.2006 with effect from the said date i,e, 26.12.2005, but his case was deferred and subsequently, was promoted on 20.09.2008 on the basis of same record. We feel that appellant was wrongfully prevented from rendering service in the higher post, when there was nothing wrong against him, when he was deferred and then again he was promoted on 20.09.2008 without there being any change in the record. We feel that he was eligible for promotion to BS-20 on 26.12.2005, therefore, promotion should have been granted to him from the said date and not otherwise. It has also come on record that due seniority has been granted to the appellant, but his promotion has been denied to him w,e,f, 26.12.2005. In 1998 SCM R 736, it has been held as under:-- "--Ss.8 & 9--Civil servant--Denial of seniority--Promotion--Issuance of notification in pursuance of civil servant's Departmental appeal whereby his entitlement to seniority/ promotion was accepted--Civil servant having retired by then, claimed financial benefits flowing from notification assigning him seniority in absence of retrospective promotion--Relevant notification would indicate that civil servant would be deemed to have been promoted when his junior was promoted--Civil servant would, thus, be entitled to financial benefits from the date when he should have been promoted up to the date when he was actually promoted--Civil servant having unblemished record of service and his ACRs, being good, he should have been selected for higher post on account of his seniority-cum-fitness-Department concerned was directed by Supreme Court to place civil servant's case before Departmental Promotion Committee with all relevant ACRs, which would consider civil servant's case for promotion and, if found fit, he would be entitled to financial benefits arising therefrom."
Admittedly, the persons, who were promoted, were junior to the appellant in the seniority list of BS- 19 officers of Civil Engineering Cadre of Pakistan Railways, as name of the appellant appeared at Serial No, 7 above Respondent No,
4. It has also come on record that ever since selection of the appellant through FPSC and appointment in BPS-17 in 1981 till 2008, his seniority position always remained above Respondent No, 4.
5. In view of what has been discussed, we direct the respondent department to allow promotion to the appellant w,e,f, 26.12.2005, date when his juniors were promoted. No order as to costs.
6. Parties be informed accordingly.