' MUSHIR ALAM, J.---Instant appeal by leave of Court arises out of judgment dated 22.10.2012, passed by learned Sindh Service Tribunal, Karachi, whereby Respondent No,1 was held to be entitled for proforma promotion from BPS-17 to BPS-18 with effect from 28.8.2003, when his juniors were promoted instead of his actual promotion on 16.12.2005, with all back benefits financial and consequential towards his pension.
2. Facts, in brief, appear to be that the Respondent No,1 hailing from Department of Sindh Local Government Services, was appointed as an Assistant Commissioner BS-17 on regular basis per appointment Notification dated 21.11.1992, where under he was required not only to undergo 6 months' training but also to qualify Assistant Collector Departmental Examination (Part I and II) within 15 months from date of his appointment, to earn confirmation under Rule 8(4) of the West .Pakistan Civil Service (Executive Branch) Rules, 1964 (hereinafter referred to as Executive Branch Rules 1964). To consider promotion of BS-17 officers to BS-18, Provincial Selection Board (PSB) meeting was held on 28.8.2003, his name was placed at serial No,24 of the list but, was superseded to which he took no exception.
3. It is matter of record that a month thereafter, the worthy Chief Minister, in purported exercise of powers under Rule 13 of the Executive Branch Rules 1964 accorded exemption to the respondent from passing the Assistant Collector's Departmental Examination (Part-I and II) as prescribed under Rule 8(4) ibid thereof as a special case on the ground of his being more than 56 years of age.
4. Subsequent to such relaxation, Respondent was promoted to (BS-18) on 16.12.2005, at this stage also he took no exception.
' However, on representation, his past service was counted only for the purposes of pensionary and other pecuniary benefits vide order dated 22.2.2007 and his request for promotion with his juniors was not conceded to. Respondent superannuated on 30.9.2007 vide Notification issued on 02.5.2007 and he did not agitate the matter any further. However, on 12.2.2012 he filed an appeal under section 4 of the Sindh Service Tribunal Act, 1973 inter alia praying for proforma promotion with back benefits w.e.f, 28.8.2003, the date when his juniors were promoted. Appeal was contested.
It was denied that respondent has any right to claim any proforma promotion, that too after retirement. The learned Service Tribunal, vide impugned order dated 22nd October, 2012, granted all reliefs to the respondent. In Para No,21 of the impugned judgment, the learned Tribunal not only held that the Respondent is entitled to proforma promotion from BPS-17 to BPS-18 w.e.f 28.8.2003, the date when his juniors were promoted instead of 16.12.2005 with all back benefits financial and consequential, but also extended him proforma promotion to BS-19.
5. Learned Service Tribunal through the impugned judgment 'further directed the appellant for passing proper order in above terms within a period of two months. In appeal, however, leave was granted by this Court on 1.3.2013 inter alia on the ground that "in the given circumstances to consider whether Tribunal can direct proforma promotion after retirement".
6. Mr. Mukesh Kumar, learned Additional Advocate General, Sindh assails the impugned Judgment on the ground inter alia that at the very outset, the appeal was time barred. Secondly, that Respondent No,1 was lacking in qualification, required for promotion, therefore he was rightly superseded for valid and justified reasons. It was urged that when the PSB was held on 22.8.2003 besides the respondent No,1; many other officers including ones placed at serial Nos.2, 4, 5 and 22 were also superseded due to the reason that they had not qualified the departmental promotion examination as required under Rule 8(4) of Executive Branch Rules, 1964. It was further urged that the Respondent No,1 superannuated on 2.7.2007 and the Service Appeal filed by him on 13.2.2012, on the face of it, was barred by time. It was argued that the requirement to qualify examination was relaxed on 23.9.2003 almost a month after the meeting of PSB, therefore, he could not claim any benefit as such exemption was neither granted nor could be granted retrospectively.
7. Learned Law Officer, also points out that this Court on 24.2.15 observed that after the constitutional dispensation in 1973, the Chief Minister has no power to nominate and promote any Civil Servant by relaxing Executive Branch Rules, 1964. It was observed by this Court that the rules are in conflict with various provisions of the Constitution of Islamic Republic of Pakistan, 1973 and to examine vires of the rules notice was issued to the Additional Advocate General, Sindh with direction to place on record the list of such persons who were promoted by the competent authority without qualifying the required examination. The issue to examine vires of West Pakistan Civil Service (Executive Branch) Rules, 1964, will be taken up separately, lest it may not prejudice the case of those serving officers who may be the beneficiary of such exemption.
8. It was urged that the learned Tribunal proceeded on erroneous assumption that prior to PSB meeting Respondent No,1 was neither reminded nor called upon by the controlling authority to appear in qualifying examination or that the Controlling/appointing authority was obliged to give any opportunity of being heard prior to holding PSB meeting thus arrived at an erroneous conclusion. It was urged that reliance on the case of Syed Ayaz Hussain v. Chief Secretary SST (2005 PLC (C.S.) 295) is also misplaced. He prays for setting aside of the impugned order.
9. Mr. Shabbir Ahmed Awan, learned ASC appearing for Respondent No,1, supports the impugned judgment of the learned Tribunal. As regards objections as to Limitation, it was urged that it was not an issue before the Tribunal and even if it was so, then it would be deemed to have been condoned by the Service Tribunal. In support of his contentions, he has placed reliance on the case of Zafar lqbal v. WAPDA (1995 SCMR 16) and Anwar Muhammad v. General Manager, Pakistan Railways (1995 SCMR 950).
10. On merits, it was contended that promotion of Respondent No,1 'is to be reckoned with effect from 28.8.2003 when his contemporary juniors were promoted and not from 16.12.2005, when he was accorded promotion to BS-18. It was argued that once he was given exemption to qualify exams, he earned a right to be promoted. It was further urged that it is settled position in law that when a civil servant is denied promotion for no fault on his part and when promotion to a higher grade is effected later then seniority of such civil servant is counted and reckoned with his contemporary junior officers who were promoted earlier to him.
11. To a Court query, as regards representation claiming to count his service in KMC towards leave, pension and gratuity and so also proforma promotion vide departmental representation; dated 23.11.2006 which was considered only to the extent of counting his past service for the purposes of leave, pension and gratuity vide order dated 22.2.2007 which order was not objected to or challenged, it was stated that no objection as to bar of limitation was taken and such question cannot be raised now. He, however, concedes that this Court may consider such question on its own.
12. We have heard learned Law Officer of the Province as well as learned ASC representing Respondent No,1 and have gone through the material available on record.
13. Respondent No, 1, as noted above was considered for promotion to BS-18 along with his contemporary service mate in BS-17 by the PSB on 28.8.2003. However, he was superseded "due to his failure to pass the pre-requisite departmental examination and missing ACRs for the period from 06.5.1998 to 31.12.1998, 1999 and 2002." In this context, as regards the assumption of the learned Tribunal in para 10 of the impugned decision that "during long 13 years was there issued any reminder, explanation call, show cause notice, etc directing Respondent to appear in examination to qualify till PSB deliberated and superseded yide minutes of meeting dated 28.8.2003" and further in para 12 that "prior to the PSB meeting neither Respondent was afforded any opportunity to be heard nor decision of the PSB regarding supersession had been communicated to him, which is mandatory requirement for administration of justice before imposing any penalty" it may be observed that in terms of notification of appointment of the respondent as reproduced in para 2 above, it was the responsibility of the Respondent No,I to undergo 6 months training and appear in required qualifying exams within 15 months, to earn confirmation to his post in BS-17 as per Rule 8(4) of the Executive Branch Rules, 1964. In terms of Rule 5 of the Sindh Civil Servants (Departmental Examinations) Rules, 1978, it is not the duty of the controlling/appointing authority to issue any reminder, explanation, call or show cause notice etc. Directing any Civil Servant to appear in the qualifying exams before the meeting of PSB as assumed by the learned Tribunal and on the contrary in terms of section 3 of the Rules of 1978, a civil servant, is required to pass examination as prescribed for the post or service to which he is appointed. In terms of subsection (1) to section 5 ibid, required exams are held twice a year.
Subsection (2) of seCtion 5 of the Rules of 1978 casts responsibility on the shoulder of the civil servant desiring to appear in the examination to give intimation in a prescribed manner to the examining authority directly or through appointing authority not later than 15 days before the date scheduled for such examination, which Respondent chose not to 'appear for over a decade. In this view of the matter,. Learned Tribunal erred in placing burden and responsibility on the controlling/appointing authority for issuing "any reminder, explanation call, show cause notice, etc directing Respondent to appear in examination to qualify" before the meeting of PSB. No law mandates or binds controlling or appointing authority to issue any show cause notice to a civil servant before holding PSB meeting as held by the Service Tribunal. Consequence for not qualifying required exams per Rule 8(4) of Executive Branch Rules 1964 is that the Civil Servant, so appointed shall not be confirmed to the appointed post unless he qualifies prescribed exam. It is the Respondent ,No,1 to blame himself for not appearing in qualifying exams during his more than a decade long service in BS-17 and not earning conformation required to be considered and earn promotion to next higher grade.
14. There is no cavil to the proposition advanced by Mr. Shabbir Awan, learned ASC for the Respondent No,1 that in case a civil servant is denied promotion for no fault on his part and when his promotion to next higher grade is effected later then promotion and seniority of such civil servant is counted and reckoned with his contemporary junior officers who were promoted earlier to him. As noted in the preceding paragraph, it is the Respondent No,1 who is to blame himself for not qualifying the requisite exams throughout his service spread over a decade, he could not compete or rank at par with his peers BS-17 officer, who qualified prescribed departmental examination, a condition precedent for earning confirmation to BPS 17 and in turn to be eligible to earn promotion to next higher grade. Therefore, he was rightly superseded by the PSB in its meeting dated 28.8.2003 (see Maqbool Ahmed v. Military Accountant General and 2 others 1993 SCMR 119 and Shahid Hussain v Muhammad Jehangir Shahzad).
15. Learned counsel for Respondent No,1 failed to point out any statutory provision in the Civil Servants Act, 1973 and or Sindh Civil Servant (Appointment, Promotions and Transfer) Rules 1974, for ante .Dated proforma promotion. It may be observed that earlier such practice, as urged by learned ASC for the Respondent No,1 cannot be cited as a valid departmental precedent nor, can be sanctified by this Court, being against the mandate of law. Even otherwise, in presence of Rule 13 of Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 a Civil Servant who is not promoted on his turn on the ground inter alia; (i) his seniority is under dispute or is not determined;
(ii) he is on deputation, training or on leave; or disciplinary proceedings are pending against him; or (iii) he is not considered by the selection authority inadvertently. The moment cause as noted in rule 13 ibid for deferment of promotion of a Civil Servant is removed, in as much as dispute as to his seniority is resolved in his favour, deputation, training or leave is over, disciplinary proceedings culminated in his favour or where inadvertence for his non consideration is remedied, only then on subsequent promotion, such civil servant would rank and be deemed to have been promoted in the same batch at par with his contemporary batch mates who were promoted earlier to him. In the instant case, Respondent No,1 's promotion was not deferred for impendent in Rule 13 ibid but he was superseded for lack of qualification. Furthermore, in terms of Rule 31 of the Civil Services Rules, 1950 (Volume 1), promotion takes effect from the date on which a Civil Servant assumes the charge of higher post. Only exception to grant antedated promotion by the competent authority to a superannuated or deceased Civil Servant, has been carved out by grafting Rule 7-A of the Sindh Civil Servant (Appointment, Promotion and Transfer) Rules, 1974 (with effect from 18.3.2006), in a situation where a Civil Servant who was in fact recommended for promotion to next high post by the Provincial Selection Board or the Departmental Promotion Committee as the case may be but before issuance of his notification for promotion, such Civil Servant either passes away or retires, in such eventuality pre-condition to assume charge as mandated under Rule 31 ibid is done away under Rule 7-A(2) of the Sindh Civil Servant (Appointment, Promotion and Transfer) Rules, 1974 (with effect from 18.3.2006). Respondent. No,l's case does not fall within the exception provided under Rule 7-A of the Rules 1974, in as much as he was not recommended for promotion by the PSB from BPS-17 to BPS-18 in its meeting dated 28.8.2003, to which he took no exception. (See also Muhammad Yousuf v. Chairman Railway Board etc 1991 SCMR 1559 and Abid Hussain Sherizi v.
Ministry of Industry and Production, Government of Pakistan) 2005 SCMR 1742).
16. Adverting to question of limitation, Respondent No,1 had all the opportunities to appear and qualify such exams, which are notified and held twice a year in terms of Sindh Civil Servant (Departmental Examination) Rules, 1978 as noted above. He is to blame himself for not availing such opportunity for over a decede. It is also a matter of record that Respondent No,1 was granted exemption on 23.9.2003 from appearing in qualifying exams by the Chief Minister Sindh, he was later promoted in (BS-18) on 16.12.2005. Then also he took no exception nor did he claim any promotion with retrospective effect. Very first representation made by him claiming such retrospective proforma promotion and counting his past service in KMC for pensionary and another benefit was made through departmental representation dated 23.11.2006 and part of such representation was conceded vide order dated 22.2.2007, he than repeated on 25.9.2007 followed by 17.4.2008 and lastly on 11.10.2011 and instant appeal was filed on 12.02.2013.
17. As regards contention of Mr. Shabbir Ahmed Awan, learned 'ASC that question of limitation was not before the Tribunal, therefore, appellant cannot be allowed to raise it now. He however concedes that such aspect may be considered by this Court. He had no explanation to offer as to why the Respondent No,1 when promoted to (BS-18) on , 16.12.2005 took no exception. On his representation, his past service in KMC Was counted only for the purposes of pensionary and other pecuniary benefits in terms of Rule 239 of the Sindh Civil Service Rules, 1950, (Volume-1) vide order dated 22.2.2007 and his request for promotion was not conceded to which order also he took no exception. He superannuated on 30.9.2007 as per Notification dated 02.5.2007, than also he did not agitate the matter of his proforma promotion beyond making representation any further and chose to remain quite. Therefore, he cannot escape the consequences for not availing the remedy of Appeal in accordance with law and within limitation provided for under section 4 of the Services Tribunal Act, 1973. It is the duty of the Tribunal to see whether the appeal before it was well within time or otherwise. Respondent No,1 filed subject appeal on 12.2.2012 which is hopelessly barred.
Therefore, both on merits as well as on limitation he had no case before the Tribunal (See Gul Jan v.
Naik Muhammad PLD 2012 SC 421).
18. In view of the foregoing discussion, the impugned judgment of Service Tribunal dated 22.10.2012 is set aside and the appeal is allowed.