Tauqeer Ahmed Khan, Member. This is an appeal under Section 4 of the Service Tribunals Act, 1973 through which the appellant claimed the following reliefs:- "Keeping in view the above forgoing submissions and facts, it is most respectfully prayed that the instant appeal may very graciously be accepted and the respondent department be directed to grant proforma promotion to the appellant from BPS-18 to BPS-19 and BPS-19 to BPS-20 from due date as per record.
It is further prayed that impugned order dated 25.11.2020 duly endorsed to the appellant on 08.12.2020 may very kindly be suspended till the final decision of the appeal in hand in the largest interest of the justice.
It is also prayed that no promotion orders after granting the stay order may be issued of any junior officer to the appellant as per seniority list issued as on (16.05.2012) and no any promotion board may be held till the final decision of the appeal by maintaining status in the interest of justice and fair play.
It is further prayed that the promotion orders of the officers who are junior to the appellant may also be withdrawn to meet the end of justice.
It is further prayed that the promotion/acting charge orders of the officers who are junior to the appellant may also be withdrawn to meet the end of justice.
Any other relief to which the appellant found entitled in the circumstances of the appeal may also granted".
2. Originally, this appeal was filed by the appellant on 14.12.2020 before a Bench of this Tribunal at Lahore, being appeal No. 368(L)CS/2020, where the comments were filed on behalf of Respondent No. 9 and the appellant got this appeal transferred to (sic)
3. Brief facts of the case, as disclosed in the appeal are that, the appellant was appointed on 31.05.1987 as Junior Engineer (BPS-17). WAPDA Code No. 2031075, subsequently, promoted as Senior Engineer (BPS-18) on 08.10.2004. In the seniority list dated 16.05.2012, name of the appellant figured at Serial No. 67. The appellant was granted time scale upgradation (BPS-19) vide office order dated 15.09.2015. In December, 2017, despite completing all requirements/formalities, codal or otherwise, record being 4inblemished, no audit para/no inquiry, being on top of the seniority list, he was dropped in the promotion board of Senior Engineer to Superintending Engineer without any cogent reason and juniors most colleagues in the seniority list, mentioned in para-5 of the appeal, were promoted to BPS-19.
In 2018, promotion board of Senior Engineer was held and the appellant was again dropped from promotion, without any cogent reason and juniors, detailed in para-7, were promoted as Superintending Engineer (BPS-19), despite the fact that his name was shown at Serial No. 2 of the list issued on 28.11.2018. It was stated the Respondents No. 1 to 10, malafidely and falsely alleged recovery of an amount of Rs. 184,707/- to the appellant through letter dated 26.03.2019 after promotion board held in December. 2018. Despite knowing fully well that wife of the appellant is not well, suffering with multiple serious diseases, the appellant was either compelled to resign/leave the service and as a result of punishment, he was posted in far flung areas i.e. Dasu Hydro Power Project as Acting Director vide office order dated 30.04.2019. After lapse of one year, the competent authority conducted detailed inquiry as to allegations contained in letter dated 26.03.2019 and later on exonerated the appellant from all the false and frivolous charges vide letter dated 13.03.2020.
Another promotion board for BPS-18 to 19 held on 09.07.2020, where the appellant was promoted as Director (BPS-19) on regular basis and posted as Director (Civil), in compliance of promotion/posting order at Serial No. 8, appellant joined new assignment on 02.10.2020.
After regular promotion, the appellant while standing on the top of the list of seniority of Directors, which has no so far been issued by the department, malafidely, Senior Selection Promotion Board was held for promotion from BPS-19 to BPS-20 on 23.10.2020, where most juniors to the appellant namely Zia-ur-Rehman, Ashfaq Ahmed and Muhammad Rafi (private respondents) were promoted. It is stated that Muhammad Rafi (private respondent), was one number above the appellant in seniority, whose promotion delayed for many years because of his, involvement in famous T4 Tarbela Dam corruption case and voluntary return of approximately Rupees 03 Million amount with WAPDA, but malafidely, appellant was illegally not promoted to BPS-20. The appellant stated in the appeal that although he requested for proforma promotion, to Member (Water) and Chairman, WAPDA vide office letter dated 22.10.2020 and 19.11.2020, however, 2nd senior selection board was conducted on 30.11.2020, where, 20 Directors, juniors to the appellant, were promoted as Chief Engineer (BPS-20) and three juniors as General Managers, among them Zakir Itique was also included.
4. Comments have been filed on behalf of the official respondents duly signed by Director General
(CM) Water. WAPDA, Lahore, admitting the contents of para-1. Contents of Para-2 of the appeal were admitted to the extent that appellant joined WAPDA as Junior Engineer (BPS-17) on 31.05.1987, his promotion as Senior Engineer as Deputy Director (Tech). LIRBP, WAPDA, Sukkur, vide office order dated 09.12.2004, contents of Para-3 & 4 have also been admitted. Regarding factual position, it was stated that WAPDA officers are promoted in line with WAPDA Promotion Policy; salient points thereof are mentioned in the comments. It was stated that Director (Admn) Water vide his letter dated 14.04.2017 intimated that an inquiry was under process against the officer, moreover, appellant had not attended MMC course, mandatory for promotion. In the light of promotion policy, the appellant was considered in the Promotion Board of Water Wing Officers from BPS-18 to BPS-19 held on 25.05.2017 as per his seniority alongwith others, however. Board deferred him. "due to (sic) not attending MMC, Non-receipt of ACRs 2015 & 2016 and pending inquiry of SWH Division Rawalpindi". Further as per Promotion Policy, a civil servant shall be deferred due to, "When the Board considers the record as incomplete, or wants to further watch the performance of the officer or for any other reason to be recorded in writing.
The appellant was again considered in the Board from BPS-18 to 19 held on 22.12.2017 as per his seniority alongwith others, however, he was deferred "for watch of performance".
Regarding unblemished record of appellant, as alleged, it was stated that vide order dated 07.11.2008, a major penalty of compulsory retirement was imposed upon the appellant with effect from 19.09.2007. Lateron, he was reinstated in service and Member (Water) vide office order dated 10.10.2011, after due consideration, modified the penalty into another major penalty of demotion in rank to a lower post of Jr. Engineer (Civil) for a period of 04 years, with effect from 19.09.2007; explanation letter was issued to him vide letter dated 03.08.2016 for directly approaching the Chairman, WAPDA, which is against the prevailing rules/office memorandum; in 2017, he was proceeded against under E&D Rules due to willful absence from duty and a penalty of "Censure" was imposed upon him vide office order dated 08.08.2017 by taking a lenient view.
No Promotion Board was held in 2018; no promotion board meeting of Water Wing Officers from BPS-18 to BPS-19 was held in the year 2018.
It was stated that on the recommendation of High Power Inquiry Committee (HPIC), appellant was proceeded against and as is evident from the record, that he was served letter of explanation dated 10.12.2019, charge sheet and statement of allegations dated 24.01.2020 in connection with departmental proceedings related to irregularities in SWH. It was stated that service of appellant in WAPDA is almost 34 years till date out of which he spent almost 18 years and 06 months in Sindh Province i.e. place of his domicile.
It was stated that in the past, appellant, the then Addl. SE (Civil) was posted as Addl. SE(Civil) office of CE/PD (DBDP), WAPDA, Chillas vide office order dated 19.10.2016, however, the concerned office did not accept his posting due to "not fit for this Mega project as per his previous service record".
The appellant had earlier submitted an application to Member (Water) that his wife was in serious condition and he may be posted near District Karachi, therefore, he was posted as Addl. Director
(Tech) office of P.D. RBOD-III, WAPDA, Sukkur vide office order dated 23.12.2016. He was lateron, posted as Director (KKH Bypass) on acting charge basis by office of GM/PD DASU HPP, WAPDA, Kohistan, as a routine case and not as punishment. As per his appointment letter, which he agreed at the time of his initial appointment, the officer is liable to be posted anywhere in Pakistan.
Director (Admin) Water vide letter dated 16.01.2019 intimated that recovery of Rs. 184,707/- has been reported by High Power Inquiry Committee (HPIC), report against Audit Para No. 24 of Special Audit Report of SWHP. The appellant has been considered in the Promotion Board of Water Wing Officers from BPS-18 to 19 held on 06.02.2019 as per his seniority alongwith others, but was deferred due to, "pending recovery of audit para of SWH of Rs. 1,84,707/- and E&D proceedings as intimated by Director (Admn) Water on 16.01.2019, (ii) for watch of performance". It is prerogative of the Board Members to consider the eligible candidates for promotion or defer a candidate for watch of performance. Since the irregularities pointed out by Audit was of a serious nature and the appellant was not exonerated of the charges, therefore, in the fitness of things, the Board recommended deferment for further watch of performance.
It was admitted that the officer was exonerated after completion of E&D proceedings vide office order dated 13.03.2020.
Thereafter, the appellant was promoted as S.E. (Civil) in BPS-19 with immediate effect and posted as Director (Civil) office of G.M. (Tech: Services) WAPDA, Lahore vide office order dated 25.09.2020.
It was stated in the comments that despite late promotion, seniority of the appellant has been kept intact; hence, the promotion board used its competency delegated to it under prevalent promotion policy to defer the appellant.
The request of officer for grant of proforma promotion from BPS-18 to BPS-19 was considered in the light of facts already quoted and the appellant was replied vide office letter dated 25.11.2020, being not covered under the rules.
5. Despite service of notices, private respondents-11 to 203 chose not to appear before this Court, as such, they were debarred and proceeded exparte.
6. We have heard the learned counsel for parties at length and carefully perused the record including personal file of the appellant, placed before us after an order was passed by the Court for production thereof including the minutes/findings of High level Committee and that of Audit Para with substantive evidence, recovery if any made through additional comments; synopsis, but only personal file and minutes of the Promotion Board have been placed before us for our perusal.
Written synopsis submitted on behalf of the appellant have also been perused carefully including the annexed citations."
7. The appellant in pare-3 of his appeal has stated that in the seniority hat aimed on 16.06.2012, his name was figured at Serial No. 67 of Senior Engineer and this pare has been admitted as "correct." in the parawise comments. It was stated in the comments that vide letter dated 14.04.2017, it was intimated by Director (Admin), Water that an inquiry was under process against the appellant and that in the light of Promotion Policy, the appellant wan considered in the Promotion Board of Water Wing Officers from BPS-18 to BPS-19 held on 26.05.2017, as per seniority alongwith others, however, he was deferred due to, "not attending MMC, non-receipt of ACRs 2015 and 2016 and pending inquiry of SWH Division Rawalpindi" It is also stated in the comments that the appellant was again considered in the Promotion Board from BPS.18 to BPS-19 held on 06.02.2019 as per his seniority alongwith others, but was deferred due to, "pending inquiry of Audit Para of SWH of Rs. 1,84,707/- and E&D proceedings as intimated by Director (Admn) Water on 16.01.2019 and also due to "watch of performance". Admittedly, The appellant was exonerated by the Project Director, DUPP, Dana (Kohistan), after completion of E&D proceedings vide office order dated 13.03.2020. The office order dated 13.03.2020 is reproduced as under: "After having gone through the record in detail and investigation conducted by Inquiry Committee regarding Audit Para 24 based on HPIC report, wherein the Inquiry Committee constituted under Rule-6 of Pakistan WAPDA Employees (E&D) Rules 1978 concluded that the material provided to the Inquiry Committee does not establish the allegations leveled against Mr. Shankar Kumar (the then XEN SWH Rawalpindi) currently working as acting Director, KKK Dasu HPP as per HPIC, report.
Therefore, I the undersigned, being competent authority under Pakistan WAPDA (E&D) Rules 1978 exonerate him from charges leveled against him and withdraw charge sheet and statement of allegations issued to him based on HPIC report".
Thereafter, he was promoted as Superintending Engineer (Civil) in BPS-19, with immediate effect, vide office order dated 25.09.2020.
8. It is the grievance of appellant that he has not been promoted with effect from the date he was entitled to be promoted, when his juniors were promoted. As per the above office order, the appellant has been promoted with effect from 25.09.2020. We are unable to understand why he has been promoted with effect from 25.09.2020. In our view he was entitled to be promoted from the date, admittedly, when he was firstly deferred by the. Promotion Board in its meeting held on 25.05 2017. Admittedly, there was nothing adverse against the appellant at the time when he was promoted i.e. on 25.05.2020. We need of the considered view that he was deprived of his legitimate right of promotion, without any reason. The appellant was admittedly deferred and not superceded and when he has not been superceded, then he is entitled to reckon his seniority from the date he was deferred, firstly on 25.05.2017 and then on 06.02.2019, the reason of deferment, being not in field after his promotion to BPS-19 vide order dated 25.09.2020.
The request of appellant for proforma promotion has also been rejected/declined without any cogent and solid reason vide letter deed 25.11.2020.
9. It has also come on record that during pendency of appeal, appellant stood retired from service on 26.08.2021, therefore, he would be entitled to proforma promotion firstly from BPS-18 to BPS-19 from the date he was entitled to get the same relief and then or from BPS-19 to BPS-20, as has been granted to others i.e. Muhammad Rafi, Maqsood Ahmed, Aman Ullah Khan and Tahir Khahloon, as mentioned in the written arguments, copy whereof was supplied to other side, but no response was made during arguments.
10. It has been observed by the Apex Court in a case law, as cited on behalf of the appellant, reported in 2007 SCMR 1355 that.
"--Promotion--Pendency of inquiry against civil servant---Selection Board deferred case of civil servant till finalization of inquiry---Promotion of junior officers on officiating basin in BS-19--Civil servant wee exonerated from charges in inquiry, which lasted for 4/5 years, during which period he reached maximum stage of BS-19--Civil Servant in such circumstances was entitled to pro forma promotion---Juniors to civil servant were allowed move-over to BS-20 and their pays were fixed at higher stage---Civil servant had been deprived of such benefits---Civil servant prevented to perform duties in higher post to which he was entitled---Civil servant had to be paid salary for higher post for the period he was not allowed to perform duties of such higher post---Department should have completed inquiry within prescribed period---Delay in concluding inquiry could not be attributed to civil servant nor mold legitimately be made to suffer for lapses on the part of department--(sic) entitled to promotion from the date his juniors were promoted".
In another case, reported in 2013 SCMR 752 the Hon'ble Supreme Court has observed that "..... Once an employee was reinstated in service after exoneration of the charges leveled against him, the period during which he remained either suspended or dismissed could not be attributed as a fault on his part---Absence of employee, in the present case, during period of his suspension and subsequent dismissal was not voluntary on his part but it was due to the order of the employer Corporation (appellant), which restrained him from unending his job/duty---Exoneration of the charge meant that employee stood restored in service, as if he was never out of service of the employer Corporation---Period during which employee remained dismissed, therefore, was to be considered as period he "remained in service"---Since absence/non-attendance of employee at work was not voluntary on his pun and it was due to the steps taken by the employer-Corporation, therefore, his service record could either be adversely affected nor could he be denied any benefit to which he would have been entitled had he not been suspended or dismissed"
In 2009 PLC (CS) 229, the Hon'ble High Court of Sindh has been pleased to observe that: "---S.9--Promotion--If service benefits had actually accrued to an employee, but for one reason or the other such benefits could not be awarded to him, then irrespective of the fact whether he had retired from service or not, the department concerned would atilt have to consider his case for such promotion and allow him/his benefits of such promotion, even after his retirement".
11. From the above narration of fact and case law, reproduced above we are firm in our view that the appellant has not been dealt with fairly and justly, rather he has been discriminated against, not warranted by law. He has been dragged into unnecessary litigation without no fault on his part, deferred twice by the Board and when he was, promoted lastly in September, 2020, there was nothing pending against him. As such he was entitled to all the benefits of promotion/service during (sic) issued in September, 2020, the respondents have practically admitted that there was nothing against him, but he has been deprived of his promotion from the date when his juniors was promoted and he was deferred, as stated above, which in quite surprising and astonishing.
12. For what has been discussed above supported by quoted law, we are constrained to hold that the appeal merits, consideration and it is thus allowed as prayed with no order as to coats.
13. Parties be informed accordingly.