' 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 preform , 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Selection Board (PSB) meeting was held on 28.8.2003, his name was placed at serial No, 24 of the list but, was superseded to which he took no exception.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 preform 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 preform 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 23.9.2063 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 24.2.2015 observed that after the Constitutional dispensation in 1973, the Chief Minister has no power to nominate and promote any Civil Servant by (sic) 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 promotod by the competent authority without qualifying the required examination. The issue to examine vires of West Pakistan Civil Service (Executive Bianch)Ruhs, 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 v as '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 Orays 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 he 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, Pak. 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 alongwith 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 06.05.1998 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 vide 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, 1 to