Moazzam Hayat, Member, J.--Appellant Usman Ghani Siddiqui appeared in CSS examination in 2009. Since his father's domicile was from Sindh (Rural) he was given Income Tax Group i,e, 29th CTP. He was promoted as Deputy Commissioner- (BS-18) in the Income Tax Department.
Meanwhile his Writ Petition No, 393/2006 was allowed by Sindh High Court. A direction was issued to the respondents for fresh allocation of a group to him, on his entitlement, as his domicile was of Sindh (Urban). He had been given Income Tax service from the quota of Sindh rural in view of Rule 6(iii)(a) of Competitive Examination Rules. These rules were rendered of no legal effect and void.
The respondents were required to treat the appellant from Sindh Urban and not from Sindh Rural.
The direction of the Sindh High Court was implemented vide letter dated 19.04.2007. He was reallocated police group. He joined the Police Academy on 02.08.2007 and completed the training in January, 2009. On his request his seniority was restored. It was fixed in 29th CTP vide order 15.12.2010. However, he was not promoted in the police cadre. His departmental appeal in that regard dated 21.03.2011 was not responded. Hence this appeal.
2. The above-mentioned facts have not been controverted by the respondents. Even the grant of retrospective seniority to the appellant alongwith other members of 29th CTP has not been disputed. However, it is maintained that the appellant could not be given promotion in the police cadre as he had not completed the required length of service in that cadre. For seniority Section 8 of the Civil Servants Act, 1973 is relied upon. For not granting promotion Section 9 of the same Act is referred and it is contended that the appellant did not have vested right to get promotion nor did he meet the criteria of promotion. The comments of the respondents as contained in Para-4 of the objections are reproduced verbatim:-- "In terms of Section 9(1) of the Civil Servants Act, 1973 Civil Servants possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a higher post for the time being reserved under the rules for departmental promotion in the service or cadre to which he belongs. Rule 8-A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 stipulates, that no promotion on regular basis shall be made to posts in basic pay scale 18 to 22 and equivalent unless the officer concerned has completed such minimum length of service, attended such training and passed such departmental examination, as may be prescribed form time to time. For promotion to PSP/BS-18 posts the prescribed length of service is 5 years and for promotion to PSP/BS-19 post in 12 years in BS - 17 and above or 07 years in BS-18 in case of direct recruits in that scale."
3. We have heard the learned counsel for the parties and the departmental representation of the respondents. The record has also been perused by us.
4. In his appeal, the appellant had made the following prayer:-- "In the light of the above facts and circumstances, it is respectfully prayed:--
(a) That the length of service of the appellant erstwhile rendered in. Income Tax Group may be counted for the purpose of promotion to the next grade;
(b) That entire service of the appellant from 21.01.2002 when he was appointed as Assistant Commissioner in Income Tax Group, may be counted for the purpose of computing length of service for promotion to higher post;
(c) That the entire service of the appellant may be counted from 21.01.2002 for leave and pension;
(d) That costs may also be awarded; and
(e) That the date of the appointment in the service may be treated as 21.01.2002;
(f) Any other relief which this Hon'ble Court deems fit and proper costs may also be awarded to the appellant in the best interest of equity and justice."
5. However, today his learned counsel has requested for one relief only and that is the award of the same benefits of service to the appellant as have been given to other members-of the 29th CTP.
We are of the view that this prayer, made today, is all comprehensive. If it is allowed, the appellant shall have to be given promotion in the PSP cadre in the same manner in which it had been allowed to other members of 29th CTP, placed in PSP group. Thus the request of the appellant, though, appears to be benign, is not that benign. We shall, therefore, proceed to decide the appeal in accordance with law.
6. The appellant could not be allocated a service group on the basis of his fathers domicile. In that regard Rule 6 ibid had been struck down in Muhammad Afaq vs. Federal Public Service Commission, SBLR 2001 Karachi 102. The judgment of the Sindh High Court was upheld by the Apex Court in CAs. 1318 to 1327/2002. Thus the appellant had a right to get group allocation on the strength of his own domicile which was of Sindh Urban. The respondents implemented the judgment of the Sindh High Court in this regard and reallocated police group to him vide letter 19.04.2007. His seniority in the police group was also allowed vide order dated 15.12.2010. It is in these circumstances that we have observed that the facts pleaded by the appellant are admitted by the respondents.
7. The issue to be resolved in as to whether the appellant is entitled to promotion in the police cadre in view of restoration of his seniority in that cadre. Promotion cannot be claimed as a right. In this regard Section 9 of 1973 Act is very clear. But to be considered for promotion is a vested right of a civil servant. And it is for this right that the present appeal has been filed.
8. When a civil servant is given seniority in a particular cadre, he gets a right to be considered for promotion in that cadre. But at the same time, the conditions for promotion, contained in Section 9 of 1973 Act, Civil Servants (Seniority) Rules, and Civil Servants (Appointment, Promotion & Transfer)
Rules, 1973, especially Rule 8A cannot be ignored. The law requires a civil servant to complete length of service in the cadre in which he seeks promotion. Service render in Income Tax Department is not relevant for promotion in police cadre. To get promotion in police cadre the officer has to complete the required length of service in that cadre. Thus an anomaly has been created in this case and the anomaly is that the appellant has been given seniority in police cadre but is not given promotion as his length of service in that cadre is not complete. This anomaly has to be resolved by the respondents.
9. The appellant has referred to an order passed by this Bench on 10.08.2011 in Appeal No,786(R)CS/2011. The order reads as under: "Objections have been filed.
Since the appellant had been appointed in the customs service, therefore, he is entitled to seniority from the date of joining customs service. The appeal is disposed of in the above terms. The respondents are directed to reconsider the seniority of the appellant in light of the observation given below."
In this order the Bench had issued a direction to grant of seniority to the appellant on reallocation of service group. In the present case seniority has already been given to the appellant. Thus this order renders no help to his case.
10.The respondents have also relied on the judgment of this Tribunal dated 29.03.2010 given in Appeal No 439(R)/CS/2008 filed by Ms. Helena Iqbal Saeed. She was given Foreign Service but was reallocated Police Group. Her claim for seniority in police service on the strength of her service in PFS group (Foreign service) was held to be time-barred and against the rules. But in the present case seniority of the present appellant is not in issue. It has already been granted to him. Thus the case of Ms. Helena Iqbal Saeed lends no support to the contention of the respondents.
11.The appellant has also cited a judgment of the Apex Court dated 27.03.2008 passed in Civil Review Petition No, 91 of 2002. This judgment relates to grant of seniority only Hence, it is not applicable in this case in which seniority is given but not promotion.
12.We are constrained to hold that the issue involved in this appeal is rather unique. The appellant has been given seniority but not promotion since his service in police cadre is rather short. Service in Income Tax has no nexus with service in police. ASP cannot be made SP and SP cannot be made DIG till such time the length of service in each post is completed. It shall be quite contradictory if a Deputy Commissioner in Income Tax is suddenly made SP or DIG in police.
13. In the above circumstances, we direct the respondents to resolve the issue by framing appropriate rules especially when it is established on record that the appellant had wrongly been allocated Income Tax Group, for no fault on his part. Whereas he had to be given PSP (which service was in fact given to him at a belted stage), he was given Income Tax Service. For a wrong done by the Government, the appellant cannot be allowed to suffer. There is no cavil with the proposition that he is entitled to pay fixation and subsequently fixation of pension for his service in Income Tax Group. But the issue, framed above, remains. It would have been easier to resolve it had the respondents not granted seniority to the appellant in PSP. We accordingly direct the respondents to decide the matter preferably within a period of four months from the date a copy of the judgment is received in their office. Once way to grant him the benefit of his seniority is to shorten the length of service in each cadre so that ultimately the catches up with his batch mates.
But again this shall require framing of rules to meet such like situations.
14. There shall be no order as to costs. Parties shall be informed.