' Justice (R) Sheikh Ahmad Farooq, Chairman.--Through the instant appeal, under Section 4 of the Service Tribunals Act, 1973, the appellant has prayed for passing a direction to the respondents to consider his case for promotion to the post of BS-22, with effect from 27.08.2011, when a vacancy in BS 22 became available.
2. Facts of the case, in brief, are that the appellant while working in BS-21 retired from service on attaining the age of superannuation with effect from 03.11.2011. As per pleadings, on 29.04.2011, three vacancies became available for promotion to BS-22 amongst the officers of BS-21. The name of the appellant was at Serial No. 5 of the Seniority List of BS-21 Officers. A High Powered Selection Board
(HPSB) in its meeting held on 02.08.2011 recommended four officers for promotion to BS-22 against three vacancies with one anticipated vacancy. The appellant claims that vacancies were available before his retirement i.e. 03.11.2011, against which he could have been promoted to BS-22. A meeting of the HPSB was held on 25.11.2011 in which four officers were recommended for promotion to BS-22, but the appellant was not considered as, at that time, he has already retired on 03.11.2011. The appellant filed a representation on 09.04.2012 which remained unresponded, hence, this appeal.
3. Learned counsel for the appellant contended that the HPSB promoted four officers to BS-22 against clear and consequential vacancies, whereas five clear vacancies were available within next three months. The appellant, who was at Serial No. 5 in August, 2011, became the senior most i.e. At Serial No. 1, after Board's meeting on 02.08.2011. Learned counsel maintained that no meeting of the HPSB was convened up-till the date of, retirement of the appellant, i.e. 03.11.2011, despite the fact that clear vacancy of BS-22 post, i.e. Additional Auditor General and Controller General of Accounts continued to exist in the cadre, against which the appellant could be adjusted. He claimed that HPSB promoted four officers to BS-22, who were junior to the appellant after his retirement on 03.11.2011 and, as such, the appellant has been denied of his legitimate expectancy of being promoted to BS-22 for no fault on his part as he was the senior most BS-21 officer and fully qualified for promotion to the next higher scale i.e. BS-22, having completed well over two years of mandatory service for BS-22. Learned counsel argued that a discriminatory treatment has been meted out to the appellant, which is violative of Article 13 of the Constitution of Islamic Republic of Pakistan, 1973. He also contended that there was nothing adverse against the appellant, which could prevent him for consideration for promotion. Learn ed counsel referred to the judgment of this Tribunal, dated 22.04.2012 passed in Appeal No. 2174(R)CS/2012, namely, Muhammad Rail Abbas, Additional Secretary (Retd), wherein it was directed the equal treatment be given amongst the similarly placed incumbents. He prayed that the appeal be accepted and the respondents be directed to consider the case of the appellant for the grant of proforma promotion with effect from the date, a vacancy was available. In support of his arguments, he has relied upon the judgments reported as 2005 PLC (CS) 321 and 2013 PLC (CS) 545.
4. The respondents resisted the appeal. In their parawise comments, they stated that the appellant was not considered for promotion due to non-availability of a vacancy and that promotion cannot be claimed as a matter of right and further that no representation lies on matter relating to determination of fitness of a person to hold a particular post or for promotion to a higher post/grade. However, they admitted that after the retirement of the appellant, a meeting of HPSB was held on 25.11.2011 wherein some officers were promoted to BS-22 and that since, the appellant had already retired from service, therefore, his case was not considered They also stated that after retirement, the appellant did not remain a civil servant in terms of Section 2(b) of the Civil Servants Act, 1973. Learned Standing counsel for the respondents and learned counsel for Respondent No 3 contended that the meeting of the HPSB for promotion to BS 22 was to be held subject to availability of vacancy and at the convenience of the Prime Minister of Pakistan, being the Chairman of the Board. They stated that the appellant was not considered due to non-availability of vacancy at that time and when the vacancy became available, the appellant had already retired from service, therefore, he cannot agitate the matter.
5. We have heard the learned counsel for, the parties, in addition to evaluating the record carefully.
6. There is no denial of the fact that the appellant, before his retirement, has completed more than two years service in BS-21, a prerequisite for being considered for promotion to BS-22. The contention of the department that after retirement, the appellant did not remain a civil servant in terms of Section 2(b) of the Civil Servants Act, 1973 is not tenable as an appeal before the Tribunal lies under Section 4 of the Service Tribunals Act, 1973 by a civil servant, who has been defined in Section 2(a) of the Act, ibid, as follows: " [(a) "civil servant" means a person who is. Or has been, a civil servant within the meaning of the Civil Servants Act, 1973 (LXXI of 1973);] [and shall include a person declared to be a civil servant under Section 2(a); (underlining for emphasis)
In this view of the matter, the objection of the respondent-department that after retirement the appellant did not remain civil servant is not correct. For the sake of argument, even if we accept this contention, then a civil servant, who has been imposed a major penalty of dismissal, removal or compulsory retirement, would be ousted from the definition of civil servant and could not approach this Tribunal for the redressal of his grievance. Therefore, this objection is overruled.
7. The other objection of the respondent-department that promotion cannot be claimed as a matter of right under proviso (2) of Section 22 of the Civil Servant Act, 1973 is also not correct, as the appellant has prayed for the consideration for promotion from the date a vacancy in BS-22 became available for promotion, as consideration for promotion is a right. In this respect, reliance is placed on the case law reported as PLD 2008 SC 769, wherein the Hon'ble Supreme Court of Pakistan has held that "consideration for promotion is a right, yet cannot claim promotion as of right. Similar view has also been taken in the cases reported as 2002 PLC (CS) 225 and 1995 SCMR
650. The appellant has been asking for the enforcement of his legal right, which cannot be denied to him. In a case reported as 2012 SCMR .126, the Hon'ble Supreme Court of Pakistan has held that "department had delayed matter of appellants' promotion without any justifiable reason, for which they could not be made to suffer, appellants' promotion after retirement from service would be proforma promotion". This Tribunal has also in a number of cases, such as Appeals No. 393(R)CS/2011 & 2174(R)CS/2012, has directed the respondent-department to consider the appellants for proforma promotion after their retirement.
8. In view of above, the present appellant could be considered for proforma promotion in BS-22 even after his retirement, subject to availability of a vacancy at the relevant time. However, there is a factual controversy as to whether a vacancy in BS 22 was available prior to the date of superannuation of the present appellant i.e. 03.11.2011 or not. In this regard, the learned counsel for the appellant submitted a chart (Annexure-A with the rejoinder) showing four vacancies in BS-22 (Pakistan Audit & Accounts Service) during the period with effect from 02.08.2011 to 03.11.2011,. But we are afraid that this Tribunal cannot conclusively determine as to whether the said chart showing four vacant slots in BS-22 is correct or otherwise, as the record of the relevant department has not been produced before us by any of the parties.
9. Therefore, we direct the Registrar, FST to send a copy of the aforementioned chart (Annexure-A with the rejoinder submitted by the appellant) to Respondent No. 2, Secretary, Establishment Division, Islamabad, who would probe into the matter and decide as to whether a vacancy in BS-22 was available prior to the retirement of the present appellant on 03.11.2011. In case, Respondent No. 2, Secretary, Establishment Division, Islamabad comes to the conclusion that there was a vacancy in BS-22 prior to the retirement of the present appellant on 03.11.2011, then, the respondents would consider the case of the present appellant for proforma promotion to BS-22 on merits. The above exercise shall be completed by the respondents within a period of four months from the date of receipt of copy of this judgment. In the light of above observations/directions, the instant appeal is, accordingly, being disposed of.
10. Parties to bear their own costs and they be informed accordingly.