' ABDUL HAMID CHAUDHRT (MEMBER).-Mr. Abdul Rashid has made this appeal under section 4 of the Punjab Service Tribunals Act,1974, wherein he has impleaded the Director, Labour Welfare, Government of the Punjab, Lahore, Secretary to Government of the Punjab, Labour Department, Lahore, Mr. Masud Ahmad Rana, Assistant Labour Officer, Shops and Weights, 41-B, Hill View, Lahore, Mr. Ehsanullah Mirza, Assistant Labour Officer/Superintendent (Rtd.), now RIO House No, 5, Street No, 61, Haider Road, Islampura, Krishan Nagar, Lahore and Mr. Muhammad Sharif, Labour Officer, Office of Joint Director Labour Welfare, Rawalpindi as respondents.
2. By virtue of this appeal the appellant has prayed that the appellant be considered for pro forma promotion as Assistant Labour Officer from 14th April, 1980 1. e. The date from which the appellant was originally due for regular promotion as Assistant Labour Officer and was deprived due to illegal and unlawful promotion of respondent No, 4 and pending of seniority dispute before this Tribunal and as a consequence appellant be also considered for pro forma promotion as Labour Officer from 18th July, 1981 for which respondent No, 5 has been promoted in his own pay and grade. The order dated 24th January, 1982 insofar as it orders appellant's promotion "with immediate effect" i. e. From 24th January, 1982 instead of 14th April, 1980 be set aside. .3. Brief facts of the case are that the appellant was working as Assistant in the office of Director, Labour Welfare (Headquarters), w. e. f. 25th February, 1975. Respondent No, 4, Mr. Ehsanullah Mirza, was promoted as Assistant Labour Officer, w. e. f. 14th April, 1980. The appellant felt aggrieved of this promotion and made representation to the Secretary, Government of the Punjab, Labour Department which was accepted vide order dated 12th April, 1981 who held the promotion of respondent No, 4 as Assistant Labour Officer w. e. f. 14th April, 1980 as irregular and void ab initio. He was, therefore, ordered to be reverted with immediate effect vide order dated 12th April, 1981 and in the same order, the appellant was directed to be promoted to the post of Assistant Labour .Officer in Rawalpindi Region by the appropriate authority on the basis of seniority-cum-fitness.
Respondent No, 4 filed an appeal before the Punjab Service Tribunal in the year 1981 against these orders of Secretary, Government of the Punjab, Labour Department and got a stay order against the reversion order. However, after hearing of the appeal of respondent No, 4, by this Tribunal the appeal was dismissed by judgment dated 25th August, 1981. Respondent No, 4 filed a petition for special leave to appeal before the Supreme Court of Pakistan which was also dismissed by judgment and order dated 23rd October, 1981 thus, upholding the judgment of this Tribunal. On dismissal of appeal of respondent No, 4, by this Tribunal as well as the Supreme Court of Pakistan, the appellant was ultimately promoted with immediate effect as Assistant 6 Labour Officer vide order dated 24th January, 1982. According to the appellant's contention, he should have been given pro forma promotion from 14th April, 1980 the date from which respondent No, 4 was illegally promoted and then denoted and his seniority restored from this date in the light of Government policy as contained in the Government Policy letter dated 16th October, 1973. In the meanwhile respondent No, 5 was also promoted as Assistant Labour Officer on purely temporary basis and as stop-gap arrangements, w. e. f. 14th April, 1980 and respondent No, 3, also as purely temporary stop-gap arrangement, from 25th July, 1981. Thus, in the event of restoration of the right of the appellant and giving him pro forma promotion from 14th August, 1980 he would become automatically senior to respondents Nos, 3 and 5. According to the appellant he was also entitled to be considered for promotion as Labour Officer, w. e. f. 18th July, 1981. The appellant submitted an application dated 30th January, 1982 for grant of pro forma promotion w. e. f. 14th April, 1980 i. e.
Date from which the respondent No, 4, was illegally promoted and denoted, but, this application/appeal is still pending and has not been decided so far. Hence this appeal.
4. We have heard the parties. The learned counsel for the appellant has argued that respondent No, 4, Mr. Ehsanullah Mirza, was promoted unlawfully to the post of Assistant Labour Officer on 14th April, 1980 as this was not within the provisions of West Pakistan Labour Welfare Subordinate Service Rules, 1969. As such his promotion was declared irregular and void ab initio on the representation of the appellant by Secretary, Government of the Punjab, Labour Department vide his order dated 12th April, 1981 wherein in the same order it was directed that the appellant be promoted to the post of Assistant Labour Officer by the appropriate authority. Thus it was vested right of the appellant to be promoted from 14th April, 1980. However, the matter lingered on and the appellant could not be promoted as the respondent No, 4 had succeeded in getting the stay order from this Tribunal. Consequently when his appeal was dismissed by this Tribunal as well as by the Supreme Court of Pakistan, the appellant was promoted as Assistant Labour Officer on 24th January, 1982. On these facts and history of the case the appellant is entitled for his promotion from 14th April, 1980 which was unduly refused due to irregular and illegal promotion of respondent No, 4, Mr. Ehsanullah Mirza. It was concluded by the learned counsel for the appellant that the appellant was appointed as Assistant Labour Officer having been declared fit by the Department Promotion Committee, vide order dated 24th January, 1982 at a much belated stage though the appellant was required to be promoted from 14th April, 1980 on the basis of this fitness and right for his promotion, which was illegally denied and given to respondent No, 4 without his right/merits as explained earlier by him. He prayed that right of promotion of the appellant be declared from 14th April, 1980 as Assistant Labour Officer and his seniority as such from this date.
5. The learned counsel for the respondents have rebutted the above arguments on legal grounds as well as on merits. They have submitted that the appellant is asking for the pro forma promotion from 14th April, 1980 which does not fall under the purview of this Tribunal as laid down under section 4 of the Punjab Service Tribunal Act, 1974. Thus, this appeal is not within the jurisdiction of this Tribunal. The appeal is barred by time as the order dated 24th January, 1982 has been assailed in the present appeal which was filed on 20th May, 1982. In view of the fact that the appellant cannot be said to be a 'person aggrieved' against the impugned order, no representation in the matter was competent. Therefore, time started running against the appellant with effect from 24th January, 1982. It was also submitted by the learned counsel for the respondents that in West Pakistan Labour Welfare Subordinates Service Rules, 1969, 80% posts of Assistant Labour Officers have been reserved for Inspectors with three years experience and the remaining 20% have further been divided ; 10% to the Assistants etc. And remaining 10% are reserved for the Investigators and Legal Assistants etc. There are only two posts of Assistant Labour Officers in the Rawalpindi Region and the appellant's promotion to one of the said two posts amounts to giving a quota of 50% to the Assistants which is against express provisions of the Rules. It was also submitted by the learned counsel for the respondents that with a view to get promotion illegally the appellant had manipulated a false domicile certificate from Gujrat District. That domicile certificate has no validity in law. The appellant, has, in fact by illegal means acquired a false domicile and thereby usurped one post of Assistant Labour Officer of Rawalpindi Region. The appeal of the appellant is liable to be dismissed on this score alone. Concluding the arguments it was submitted by the learned counsel for the respondents that even on merits respondents Nos, 3 and 5, were promoted earlier to the appellant and keeping in view the legal objections raised by them, the appellant has no legs to stand and his appeal is liable to be dismissed.
6. Controverting the arguments regarding maintainability of the appeal the learned counsel for the appellant submitted that a reliance be made to the judgment of this Tribunal in case No, 3/1561 of 1982 dated 19th April, 1983 wherein a similar case, by quoting the various authorities of the Supreme Court of Pakistan, Lahore High Court, Federal Service Tribunal and Punjab Service Tribunal ; it has been held that in cases where a civil servant is deprived of his promotion unlawfully, due to no fault of his own, as was done in this case, the civil servant is entitled for the benefit accrued to him from the date from which he was so entitled and was deprived of his vested right. Thus the appellant is entitled for restoration of his right from the earlier date, i. e. 14th April, 1980 as Assistant Labour Officer as argued by him already. As far as objection of the learned counsel for the respondents claiming that the appeal is barred by time, is not correct. The appellant had filed an appeal on 30th January, 1982 against his promotion order, vide order dated 24th January, 1982. As this appeal was still pending with the Departmental Authorities, he could come to this Tribunal after waiting for ninety days and within thirty days, on the expiry of these ninety days as per section 4(1)(a) of the Punjab Service Tribunal Act, 1974. The appellant has filed his appeal to this Tribunal on 29th May, 1982 thus this appeal is within the prescribed time and not barred by time. As far as legal objections raised regarding promotion quota and acquiring domicile of Gujrat District, it was repelled by the learned counsel for the appellant that if a reference is made to the parawise comments submitted on this appeal on behalf of the respondent No, 1 and his Memo. No, LC- SAP/207/7054, dated 11th August, 1980 it is clear that these legal objections of the counsel for the respondents stand refuted. Even on merits from the promotion orders of respondents Nos, 3 and 5, Annexure D and H respectively, it is clear that they were promoted as stop-gap arrangements and thus, they cannot claim preference or seniority above the appellant who was appointed on regular basis.
7. We have given our anxious thought to the arguments of the parties and have also gone through the documents so attached with this appeal. We would like to deal with the objections so raised by the learned counsel for the respondents. It has been submitted by the learned counsel for the respondents that ;
(i) The appellant had manipulated a false domicile certificate from Gujrat District. The domicile has no validity in law and thus the appellant has acquired his promotion through illegal means.
' If a reference is made to the Director, Labour Welfare, Punjab Memo, No, LC-SAP/907/7054, dated 11th August, 1980 addressed to the appellant, it is clear that domicile certificate of Gujrat District was accepted by the competent authority and there is no force in this legal objection.
(ii) The appellant was not promoted against proper quota. If reference is made to para. 2 of parawise comments submitted on this appeal by respondent No, 1 1. e. Director, Labour Welfare, Punjab, Lahore, the full justification regarding promotion of the appellant against proper quota has been given. Keeping in view this justification the objection of the learned counsel for the respondent is not valid.
(iii) As regards the appeal of the appellant being time-barred, para. 8 of the parawise comments submitted by the respondent No, 1, Director, Labour Welfare, Punjab, Lahore, makes it clear that the appellant had put in a representation on 30th January, 1982 for consideration of his case for grant of pro forma promotion as Assistant Labour -Officer which was still pending. Thus the] contention of the learned counsel for the appellant is correct that the appellant could file an appeal with this Tribunal after A expiry of ninety days after submitting of his representation dated 30th January, 1982 and within a period of thirty days after expiry of these ninety days. This appeal has been filed to this Tribunal on 29th May, 1982 which is in time and the objection of the learned counsel for the respondents does not hold any ground keeping this detail in view.
8. Finally we have also to deal with the objection of the learned counsel of the respondents, objecting to the jurisdiction of this Tribunal for hearing this appeal under section 4(1)(a) of the Punjab Service Tribunal Act, 1974 and the plea of the learned counsel for the appellant for directing respondents to allow the appellant promotion as Assistant Labour Officer from 14th April, 1980 i. e.
From the date from which the appellant was originally due for regular promotion as Assistant Labour Officer and was deprived due to illegal and unlawful promotion of respondent No, 4 and also allowing seniority from this date, we would like to make reference to the detailed judgment of this Tribunal in case No, 3/1561 of 1982 dated 19th April, 1983 wherein we have decided the case relying on the following judgments :-
(t) Federal Service Commission), in case of S. Bashir Ahmad Qazmi v. Auditor-General of Pakistan and 4 others .
(ii) Muhammad Sharif v. Secretary Irrigation & Power Department etc. in case of Writ Petition No, 7665-S-1982, decided on 28th April, 1981.
(iii) In case of Ashfaq Ahmad v. I.-G. Police Punjab and other .
(iv) I.-G. Police, Punjab v. Ashfaq Ahmad and others , ' In case of Iftikhar Ahmad Butt v. I.-G. Police Punjab etc. in case of Appeal No, 128/614 of 1980, decided on 15th February, 1981.
' Through the above judgments it has been concluded :-
(a) As the question of adjudication on the point of promotion, a careful reading of section 4(1)(b) of the Service Tribunals Act leaves no doubt about intention of the provisions of the Act. What is intended to be barred is the scrutiny of the administrative discretion, to re-determine fitness or otherwise of a civil servant to hold a particular post or for promotion to the higher post . The consideration for such promotion under the applicable rules scrutiny. In view of law laid down, we are of the considered of the Service Tribunals Act do not place any is a right of the civil servants, and the above referred provisions bar on this scrutiny. In view of law laid down we are of the considered opinion that the case of the appellant is not hit by section 4 (1) (b) of the Punjab service Tribunals Act, 1947.
(b) When a civil servant is deprived of holding a post due to no fault of his own, he is entitled to that appointment with all the consequential benefits including the arrears of pay and allowances1 2 3 4 5 admissible under the rules as if he had been actually appointed to that post with effect from the relevant date.
' In this particular case the promotion of respondent No, 4, Mr. Ehsanullah Mirza, as Assistant Labour Officer from 14th April, 1980 was declared irregular and void ab initio vide Secretary, Government of the Punjab. Labour Department order, dated 12th April, 1981. In the same order the appellant was ordered to be promoted to the post of Assistant Labour Officer in Rawalpindi Region by the appropriate authority on the basis of seniority-cum-fitness. Thus, it is clear that the appellant was ignored for promotion from 14th August, 1980 due to no fault of his own and is entitled for promotion from the original date 1. e. 14th April, 1980 on which the respondent No, 4 was illegally promoted and then reverted.
9. Keeping the above analysis in view, the appeal is accepted and the appellant is directed to be deemed to have been promoted as Assistant Labour Officer from 14th April, 1980 the date on which Mr. Ehsanullah Mirza, respondent No, 4 was unlawfully promoted and whose orders were held irregular and void ab initio by respondent No,
2. As a consequence of this, the appellant shall also be entitled for his seniority as Assistant Labour Officer from 'the said date i. e. 14th April, 1980.
' There will be no order as to costs. 1980 PLC (C S) 356 1981 PLC (C. S.) 562 1981 PLC (C. S.) 875 1983 SCMR 34 NLR 1981 T D 537