Ch. Muhammad Amin Javed, Member.--Appellant Muhammad Nawaz Mirza has moved the instant Appeal under Section-4 of The Service Tribunals Act, 1973 challenging the vires of impugned order, dated 14.9.2019, whereby his representation dated 19.11.2004 for grant of promotion from TCR Gr-II (BS-7) to the post of HTI (BS-10) w.e.f. 16.6.2003 and subsequent promotion to the post of HTI (BS-10) to the post of Group Inspector/STE (BS-12) w.e.f 19.5.2004 has been rejected. Hence this appeal filed on 11.10.2019 with the prayer to set aside the impugned rejection order dated 14.9.2019 with the direction to the respondents to promote him to the post of Head Ticket Inspector (BS-10) w.e.f. 16.6.2003 as Group Inspector/STE (BS-12) w.e.f. 19.5.2004. He stood retired on 30.11.2006 on attaining the age of superannuation.
2. The historic background of the lis is that the appellant initially joined the respondent-Railways as a Junior. Clerk w.e.f 21.8.1967, promoted as TCR Gr-II & Gr-III on 9.6.1996 and subsequently ordered to perform duty in his own pay and grade as HTI (BS-10) w.e.f. 29.5.1998 by the Respondent No. 3 and then promoted on 17.3.1997 as such vide order dated 29.5.1998. He was dismissed from service vide order dated 27.11.1999 and then reinstated into service vide order dated 27.1.2000 by the Appellate Authority and reverted to the post of TCR-I, which matter was assailed and accepted by this Tribunal vide judgment dated 4.11.2003. He was again dismissed from service vide order dated 19.6.2001 and then again reinstated into service by this Tribunal vide judgment dated 4.11.2003 with all back benefits. During the pendency of the appeal in this Tribunal one Javed Ghani Butt. TCR Grade-II (BS-7) Multan Division had been promoted to the post of HTI (BS-10) vide order dated 16.6.2003 and thereafter promoted to the post of Group Inspector (BS-12) on 19.5.2004. Though the appellant was entitled to get promotion with effect from the due date which fact has already been cognized by the Respondent No. 2 in its letter dated 25.8.2007 while intimating Director Legal Affairs.
He had requested his claim which was rejected by the Appellate Authority vide impugned order dated 14.9.2019.
3. The respondents while resisting the appeal have maintained that the appellant has no cause of action and the same being meritless, barred by time liable to dismissal. His earlier departmental appeal was decided on 17.11.2016 and stood retired from service in the year 2006 as such the present appeal is also not maintainable. He had poured in consecutive representations being habitual litigant, were decided on merits cannot enlarge the limitation for filing the appeals.
Promotion cannot be claimed as a matter of right but subject to fulfillment of codal formalities and approval of the Competent Authority. His claimed after his retirement is not tenable. His past service littered with several punishments at his credit as such was not liable to be promoted being twice dismissed from service in terms of para-406 of Personnel Manual Vol-I.
4. We have heard the arguments of the respective parties at length and have also perused the available record carefully with their able assistance.
5. The grievance of the appellant voiced through the subject appeal is that legally he was entitled for promotion to the post of Head Ticket Inspector (HTI) BS-10 w.e.f. 16.6.2003 and as Group Inspector (STE) BS-12 w.e.f. 19.5.2004 when his junior Javed Ghani Butt. TCR Grade-II (BS-7) Multan Division had been promoted to the post of HTI (BS-10) vide order dated 16.6.2003 and thereafter promoted to the post of Group Inspector (BS-12) on 19.5.2004. The respondents in their comments have objected the maintainability of the appeal on the ground that the departmental appeal was finally dismissed on 17.11.2016 and in this view of the matter the appeal before the Tribunal filed on 11.10.2019 is barred by time. We would like first to decide the question of limitation. The perusal of the record evinces that the order dated 17.11.2016 is not available with the comments and also not produced in the Court during the arguments. However, the decision of departmental appeal dated 14.9.2019 is on the file whereby his departmental appeal was dismissed against which service appeal in the Tribunal on 11.10.2019 is well within time in terms of Section 4 of The Service Tribunals Act, 1973. Moreover, the stated order of the Appellate Authority was on merit and the issue of limitation has not been taken and discussed, if any, as such the limitation is impliedly considered to be condoned. Reliance is placed on Anwar Muhammad v. General Manager, Pakistan Railways, Lahore and another (1995 SCMR 950) wherein it has categorically been laid down that though the period for filing of a representation is thirty days but the authority had not rejected the representation on the ground of limitation and had declined the same on merits." In other such cases the same issue has been discussed in detail by the Hon'ble Supreme Court of Pakistan in Muhammad Yousaf v. Member, Board of Revenue, West Pakistan, Lahore and 6 other (1970 SCMR 170) and Syed Ashfaq Hussain Shah v, N.E.D. University of Engineering and Technology, Karachi and others (2007 SCMR 73) that when the departmental appeal was not disposed of against the petitioner on the plea of it being barred by time the same could not be taken up even before the Service Tribunal what to say before this Court. In the case of Muhammad Jan Marwat and another v. Nazir Muhammad and 17 others 1997 SCMR 287, a Bench of three Honourable Judges held that the departmental appeal of civil servant having not been dismissed on ground of limitation, service appeal filed within time, the Service Tribunal could not have dismissed such appeal as incompetent. Resultantly the appeal is held to be within time.
6. Before take up the merits of the case we feel it essential to reproduce some facts at the cost of repetition. The appellant was initially appointed as Junior Clerk on 21.8.1967; thereafter promoted as TCR Gr-II and subsequently promoted to the slot of TCR Gr-III on 9.6.1996. He was put to work as HTI (BS- 10) on his own pay and scale under the order of the Competent Authority w.e.f. 29.5.1998. As per his stance he was senior to Javed Ghani Butt and two others in Gr-III. On 17.3.1997 Divisional Superintendent Pakistan Railways Lahore had recommended his promotion to the post of HTI (BS- 10) but before maturity whereof departmental proceedings were initiated against him; which resulted in his dismissal from service vide order dated 27.11.1999 by the Competent Authority but converted by the Appellate Authority into reversion to the post of TCR.I . vide order dated 27.1.2000 which was impugned before the Tribunal in Appeal No. 174(L)CS/2000 and he was ordered to be reinstated into service but the Authority again initiated departmental proceedings on the same allegations and again was dismissed on 19.6.2001 and his departmental appeal also failed on 29.8.2001; which was challenged before the Tribunal through Appeal No. 727(L)CS/2001 which was set aside vide judgment dated 4.11.2003 and he was instated into service with all back benefits.
However with the observation that the respondents shall be at liberty to take appropriate action against the appellant strictly in accordance with the rules and observations recorded by us. The dates in both the judgments of the Tribunal were shown as `4.11.2003' which in our view seems to be incorrectly mentioned in the last judgment. However the matter of dismissal was brought twice in the Tribunal on the same cause. Thereafter he was reinstated into service w.e.f. 4.1.2004 and stood retired on attaining the age of superannuation w.e.f. 30.11.2006, but before it he moved a composite departmental appeal on 19.11.2004 wherein he sought pro forma promotion to the post of HTI (BS- 10) w.e.f. 16.3.2003 and further promotion w.e.f 19.5.2004 from the date when his junior Javed Ghani Butt was so promoted but result of which was not conveyed to him. Subsequent to the final decision of the Tribunal, the record indicates that vide order dated 19.5.2004 he was again put under some disciplinary action before his retirement. However, letter dated 25.8.2007 of the Divisional Superintendent, Pakistan Railways transpires that the appellant was put to duty pending in the DPC but in the DPC he-was not cleared being penalized person but with the observation that is all punishments have been waived off by the Competent Authority/Respondent No. 2, after his retirement. The letter, dated 25.8.2007, is reproduced is as under:- "PAKISTAN RAILWAYS No. 724-E/4/1910/Loose/F-I Divisional Office, Lah. Dt. 25.8.2007 The Director Legal Affairs, P.R. Headquarters Office, Lahore Sub: GRANT OF BACK BENEFITS Ref: Tour Letter No. 757-E/37/L/APO-III dt: 23.-07.2007 In reference to your letter cited above, it is intimated that Mr. M. Nawaz Mirza was put back to duty as HTI pending D.P.0 but D.P.0 was not cleared being penalized person due to D/action cases pending against the employee up till his superannuation retirement i.e. 30.11.2006.
It is further pointed out that his all punishments have been waived off by the competent authority viz D.S./Lahore after his retirement.
Sd/- (MUHAMMAD HANIF GULL) for Divisional Superintendent, Pakistan Railways, Lahore."
7. There is no denial of the fact that the appellant was appointed on 21.8.1967 as Junior Clerk. He was recommended for promotion as TCR Gr-III by showing that no punishment was at his credit and free from any hurdle to promote him to the requisite slot of higher nature vide letter dated 17.3.1997 much earlier his retirement on 30.11.2006 being fit for promotion vide letter dated 9.6.1996 by the Divisional Personnel Officer, Pakistan Railways, Lahore. We also observed that the appellant has been illegally and unlawfully deprived of his right of promotion vide order dated 14.9.2019, from TCR Gr-II (BS-7) to the post of HTI (BS-10) w.e.f. 16.6.2003 and subsequent promotion to the post of HTI (BS-10) to the post of Group Inspector/STE (BS-12) w.e.f. 19.5.2604 on the premise that after reinstatement into service by the Tribunal two years earlier before his retirement significantly when his all punishments have been waived off by the department itself vide order dated 25.8.2007 there was no occasion to refuse his promotion. Another factor can also not be neglected to be taken into account that his reinstatement was ordered with all the back benefits. There was no punishment in the field against the appellant when he stood retired and, if any subsequent waiver of punishment by the Department; so he was wrongfully prevented from pro forma promotion. We observe that the departmental authority has not bother to apply its independent judicious mind and also not perused the record properly and distinctly which occasioned glaring miscarriage of justice to the appellant.
8. For the foregoing reasons and observations the impugned order dated 14.9.2019 calls for interference being not sustainable and maintainable in law therefore set aside. Resultantly the instant appeal is accepted with the direction to the respondents to consider his pro forma promotion from TCR Gr-II (BS-7) to the post of HTI (BS-10) w.e.f. 16.6.2003 and subsequent promotion to the post of HTI (BS-10) to the post of Group Inspector/STE (BS-12) w.e.f. 19.5.2004, when his junior Javed Ghani Butt was so promoted in terms of pronouncements of the Hon'ble Supreme Court of Pakistan in Abdul Hameed Anjum and others v. Federation of Pakistan and others (PLD 2010 S.C. 857), Khalid Mehmood v. Chief Secretary Government of Punjab and others (2013 SCMR 544), Shama Khan Zafar vs. District Coordination Officer Lodhran and others [2014 PLC (C.S.)
948] and Sindh Irrigation and Drainage Authority v. Government of Sindh and other (2022 SCMR 595). No order as to costs.
9. Parties be informed accordingly. File be consigned to record -after codal formalities under Rule- 21 of The Service Tribunals (Procedure) Rules, 1974.