' MUHAMMAD DAUD KHAN (CHAIRMAN).-The question involved is very simple. It concerns right of a suspended officer to be considered for promotion during suspension and in the alternative to be retrospetively promoted if absolved of the blame and re-instated in service. The point for determination arises in following circumstances :-
2. Mr. Abdul Qadir Haye was a P. S. P. Officer who joined service in the Audit Accounts Branch on 4th November, 1967 and in the Police Service of Pakistan on 1st February, 1968. He was subsequently promoted to senior Class-I Scale in the Police Department on 18th September, 1971. On 30th November, 1972, he was posted to the Prime Minister's House where he remained till 8th June, 1976.
The appellant was suspended from service for misconduct on 23rd December, 1975, for the reason that he smiled in the presence of Prime Minister during a People's Party Convention on 22nd December, 1975. On 9th June, 1976 however, he was re-instated and posted out of the Police Service of Pakistan to Office Management Group. His lien in the Police Service was also terminated. These facts find mention in the White Paper, published by the present regime.
' The appellant represented against termination of his lien. It resulted in Notification No, 9/74/75-C.
H, dated 1st April, 1978. The President therein was pleased to re-transfer the appellant to the Police Group on permanent basis. The President was further pleased to restore to the appellant the same position in Police Group which he would have enjoyed had he not been transferred to the Office Management Group. A further Notification dated 20th June, 1978 (No, 9/74/75-C. II) was to treat the period of suspension as on duty.
3. During the period of suspension of service outside the Group, Provincial Service Officers of Police were absorbed in P. S. P. To be later promoted to Grade-19 in preference to the appellant. Orders of the President contained in the aforementioned Notification were allegedly ignored in calculating the seniority of the appellant when he was promoted a D.I.-G. On 22nd August, 1979, given clearance by Selection Board in August, 1978. His contention is that the Presidential orders required him to be considered and promoted from the date his order batch mates were so treated, Against this violation, the appellant represented on 27th February, 1979 but no reply has been received. He filed the present appeal within 120 days as contemplated by section 4 (1) of the Service Tribunals Act, 1973.
4. Appellant's arguments are restricted to effects of suspension and unilateral termination of lien.
ESTACOD on its page 140 at SI. No, 186 clearly contemplate promotion of an Officer to higher post during pendency of disciplinary proceedings. It is contended that even during suspension, appellant was entitled to be considered for promotion along-with his other colleagues of P. S. P.
Besides the stigma attached to disciplinary action, being removed by Presidential orders cited earlier, there was nothing to relegate promotion of the appellant to a date later than it was due.
5. Learned counsel for the State on instructions of the departmental representative has submitted that the case is being favourably examined by the Establishment Division on those lines. Mr. M. Bilal, counsel for respondents Nos. 8, 10, 14, 15 and 18 had different feelings on the issue. His point of view is that legally conferred rights on his clients cannot be taken away because promotion was not subject to any future adjustment. His other contention is that appellant being out of the Group at the time his batch mates were promoted, cannot claim right of promotion in the Police Group. Both these submissions are without substance. In May, 1976 when respondents were promoted the appellant although suspended was still in the Police Service of Pakistan. As per Establishment Division's Notification cited earlier he was entitled to be considered. The loss caused by an oversight, amounting to infringement of a vested right, cannot be left undone for reasons of assumed legal hurdles. You cannot deprive another of his rights with impunity. Rights and liabilities are interrelated and subject to adjustment. Moreso when promotion is only provisional. As to being out of the Group it is neither here nor there. Appellant was in Police Service till June, 1976. His right to be considered, has been violated.
6. The other point raised by the learned defence counsel is that there is no order and as such no appeal competent under section 4 of the Service Tribunal Act. The submission again ignores that by considering the case of the appellant in August, 1978 and promoting him in August, 1979 an order was passed which deprived the appellant from promotion in 1976. He can, therefore, validly file an appeal when his point of view was not met by the Department. The promotion being made as late as August, 1979 when appeal was filed in June, 1979, it is useless to argue that the cause of action is time-barred. One cause of action accrued to him in 1978 against which representation was filed in February and other during pendency of the suit. The appeal, therefore, cannot be said to be time-barred.
7. Net result of the above discussion is that the appellant is entitled to be considered for promotion with his batch mates. His name appears in the seniority list below that of Mr. Ghulam Asghar Malik promoted on 19th May, 1976. He is senior to others as is evident from the seniority list of 1975 wherein his name appears at No, 13 while that of promoted ores start from Serial No,
20. Thus there is no dispute about seniority and title of the appellant to be considered for Grade-19 in May, 1976, ignoring him on earlier date when his batch mates were promoted was an error, which requires rectification. It is, therefore, directed that the appellant be considered for promotion w. e. f. 19th May, 1976. No cos: ' N. A. CHAUDHRY (MEMBER).-I agree with the learned Chairman on arguments and conclusions as contained in the above judgment. I would like to add that the officer after consideration for promotion with effect from May 1976 it found fit, should be promoted from that date with all the consequential benefits accruing to him under the rules with effect from that date including pay and allowances in grade 19 as revised from time to time. His emplacement of seniority would also be regulated with effect from the date he is promoted on that consideration. I would rely on the judgment of his Lordship Mr. Justice Nasim Hasan Shah, reported in PLD 1973 Lah. 42 for the above order. The relevant portion o the judgment is reproduced below :- "If a civil servant is deprived of serving on a higher post, for no fault of his own, but that occurs due to the fault of mistake of the Government and subsequently it is found that the civil servant was, in fact, entitled to serve on the higher post, he would be entitled to salary of the higher post because he has been deprived of rendering service in the higher post for no fault of his own."
' There is no doubt that the Officer has been prevented entirely by the Government of Pakistan to hold a post in grade 19 with effect from May, 1976. The officer has made the above prayers in his appeal to the Service Tribunal.