' ABDUL HAMID CHAUDHRY (MEMBER).-Sh. Fazal-ur-Rehman, has made this appeal under section 4 of the Punjab Service Tribunals Act, 1974, wherein he has impleaded Chief Engineer, Irrigation Region, Multan Superintending Engineer, Headquarter, Irrigation Region, Multan, Secretary, Irrigation and Power Department, Lahore and Muhammad Saleem, Superintendent, Muzaffargarh Canal Circle, Multan, as respondents.
2. By virtue of this appeal the appellant has prayed as under :- (0 that the impugned orders, dated 16th November, 1981 and 6th December, 1981 are required to be reversed and modified because there is a balance in favour of the appellant ;
(ii) the appellant be declared senior to respondent No, 4 with back benefits since 1974 ;
(iii) the common seniority list, dated 16th. October, 1976 be declared void and ineffective ;
(iv) the orders of promotion of respondent No, 4, dated 16th November, 1981 be quashed and declared illegal ;
(v) the appellant be granted pro forma promotion w. e. f. January, 1976 on the occurrence of first vacancy which had to be given to the Head Clerks, which was not given due to misinterpretation of the Service Rules.
3. Brief facts of the case are that the appellant was working as Head Clerk in Multan Irrigation Region in the year 1976. In January, 1976, a vacancy of Circle Superintendent occurred. An amendment in the West Pakistan Irrigation Department Ministerial Service (Circle Rules) 1964, was issued vide No, SRO-III-1-48/71, dated 4th May, 1973 wherein in columns 2 and 4 against Serial No, 1, of the Appendix, the following entries were added :- {{TABLE TEXT}} 2 3 4 Superintendent By promotion from among members of the Service in proportionate to their cadre strength in the Region where the vacancies occur holding :-
(1) Post of Head Clerks with at least five years' experience as such, and
(ii) Posts of Stenographers with at least five years' experience as such who have passed departmental examination, if any prescribed for Head Clerks under sub-rule (4) of rule 8.
' In accordance with the above amendment, promotion to the post of Circle Superintendent was required to be made proportionate to their cadre strength from amongst Head Clerks and Stenographers. Joint seniority list of Head Clerks and Stenographers had ceased to be maintained with the amendment in the West Pakistan, irrigation Department, Ministerial Service (Circle Rules), 1964, referred to above. Thus, separate seniority lists of these each feeding cadre were required to be maintained but promotion was to be made according to the prescribed share or ratio of each feeding cadre. In early, 1976, there existed some vacancies of Circle Superintendents. At that time, the cadre strength of Head Clerks and Stenographers in Multan Region was 16 posts of Head Clerks and 4 posts of Stenographers and according to this cadre strength, the ratio of Head Clerks and Stenographers worked out as 4 :
1. However, on 9th February, 1976 the Departmental Promotion/Selection Committee, consisting of Superintending Engineer, Irrigation, Headquarters (as Chairman), Superintending Engineer, L. B. D. C. And Technical Officer (as members), selected Ch. Muhammad Salim, Steno, for promotion as Circle Superinten dent on the basis of joint seniority list of Head Clerks/Stenographers and according to the ratio 4 : 1 prescribed for Head Clerks and Stenographers as worked out by the Committee according to their own wisdom and interpretation of the rules mentioned above. On this recommendation of Departmental Promotion/Selection Committee, orders of promotion of Mr. Muhammad Salim Stenographer as officiating Superintendent were issued vide Order No, 727/Al/7616340/786/89 (Vol. III), dated 16th February, 1976 and endorsed vide No, 727/RI/76/6341-45/787/69 (Vol. III), dated 19th February, 1976 to various offices. His posting orders as officiating Superintendent were to be issued separately. The appellant being aggrieved of this action appealed to the Chief Engineer Irrigation, Multan. To resolve the controversy, the Chief Engineer, Irrigation, Multan, referred the case to the Secretary, Government of the Punjab, Irrigation and Power Department, Lahore, to seek the clarification for the feeding cadre, out of Head Clerks/Stenographers, from which the promotion could be made according to Rules. In reply to this the Government of the Punjab, Irrigation and Power Department, vide Memo. No, S. 0-III
(E) 2-46/73, dated 20th August, 1976, addressed to the Chief Engineer, Irrigation Multan, directed that the vacant post belonged to the cadre of Head Clerks and the vacancy should go to the Head Clerks side on the condition that whenever the deputationist return to the Department, the junior most will revert to his substantive post. The matter was, thus, referred to the Departmental Promotion Committee. The Committee considered the issue again in their meeting held on 13th/15th September, 1976 but struck to their original decision made in their earlier meeting on 9th February, 1976. The Committe met third time on 22nd May, 1978 to consider this controversial issue, they again struck to their earlier decisions and Superintending Engineer, Headquarters/Chairman, Departmental Promotion Committee, Multan Region, Multan wrote to the Secretary to the Government of Punjab, Irrigation and Power Department, Lahore, vide letter No, AI/78/17542/787/69, dated 6th June, 1978, that the advice given by the Government vide their order, dated 20th August, 1976 be withdrawn to admit implementation of the decision of the Committee and let aggrieved person, if any, knock at the door of the Tribunal. This matter remained under consideration of the Government in the Irrigation Department and it was finally decided by the Government of the Punjab, Irrigation & Power Department in consultation with S&GAD and vide their letter No, SO-III (E)
1-3/79, dated 22nd August, 1981 directed the Chief Engineer, Irrigation Multan, that the promotion to the post of the Superintendent was to be made from feeding cadres of Head Clerks and Stenographers in proportionate to the cadre strength in the Region and future promotions, if any, should be made from the relevant cadre to maintain this ratio. Joint seniority list of Head Clerks and Stenographers had ceased to be maintained with the amendment of West Pakistan, Irrigation Department, Ministerial Service Region and Circle Cadre Rules, 1964, as amended vide Notification, dated 4th May, 1973. Separate seniority list of each feeding cadre were required to be maintained but promotion would be allowed according to the prescribed share or ratio of each feeding cadre.
Mr. Muhammad Salim, Stenographer, promoted as officiating Circle Superintendent vide Office Order No, 727/A1/ 76/6340/787/69 (Vol. III), dated 116th February, 1976 was posted to Muzaffargarh Canal Circle, Multan, against an existing vacancy with immediate effect vide order, dated 16th November, 1981 of Chief Engineer Irrigation, Multan Region, Multan. The appellant was also promoted upon the recommendations of the Departmental/Promotion Committee as officiating Circle Superintendent, with immediate effect against an existing vacancy vide order, dated 6th December, 1981 of Chief Engineer Irrigation, Multan. As grievances of the appellant were not redressed ; the respondent No, 4 was promoted in perference to the appellant, hence this appeal.
4. We have heard the parties. It has been argued by the learned counsel for the appellant that after issue of the amendment to the West Pakistan Irrigation Department Ministerial Service (Circle Rules), 1964, vide Punjab Government Notification, dated 4th May, 1973, the preparation maintenance of common seniority list of Head Clerks/Stenographers had ceased. The seniority list of Head Clerks and Stenographers had to be prepared and maintained separately as the promotion of the Circle Superintendent was to be made from amongst the Head Clerks/Stenographers in accordance with their cadre strength ratio. But the rules were misinterpreted to accommodate respondent No, 4, eventually employed in the office of the competent authority as Stenographer, on occurrence of vacancy belonging to the Head Clerks' cadre. Though the joint seniority list of Head Clerks and Stenographers had ceased to exist in the year 1973, due to above amendment of Service Rules and separate seniority lists were to be maintained for the cadres of Head Clerks/Stenographers, even then, the name of respondent No 4 was illegally inserted in the year 1976 at serial 2-A in the joint seniority list. The insertion of the name of the appellant in seniority list was in contravention of the service rules. This was also done in mala fide manner after obtaining application from respondent No, 4 on 9th February, 1976, which was decided on the same day by respondent No, 1 on 9th February, 1976, without hearing the parties, with an object to make mala fide selection of respondent No, 4 for promotion as Circle Superintendent in the meeting of the Selection Committee which was scheduled to be held on the same day. Thus, insertion of name of respondent No, 4, in the common seniority list of Head Clerks/Stenographers was in clear violation of service rules and also the selection/promotion of respondent No, 4 by the Departmental Promotion Committee held on 9th February, 1976 on the basis of this joint seniority list was mala fide, malicious on the part of respondent No, 2 and other members of the Committee. As per amendment in the West Pakistan, Irrigation Department, Ministerial Service Rules, 1964, amended vide Government Notification, dated 4th May, 1973 and to be read with Punjab Civil Servants (Ratio and recruitment) Rules, 1973 notified by him S&GAD, on 14th June, 1973, the post of Circle Superintendent against which Mr. Muhammad Salim Stenographer respondent No, 4 was selected belonged to the cadre of Head Clerks and, therefore, the appellant should have been appointed against this vacancy. On clarification sought by the Chief Engineer Irrigation, Multan, the Government of the Punjab, Irrigation and Power Departmment issued a clear cut advice vide their letter, dated 20th August, 1976 that the vacant post belonged to the cadre of Head Clerks, even then, the Departmental Promotion/Selection Committee, though considered this case time and again, struck to their own whim and mala fide intentions and did not agree to change their recommendations. The result is that order of promotion of Muhammad Salim Stenographer as Circle Superintendent which was passed on the recommendation of this Promotion/Selection Committee is an illegal and unlawful order.
5. It was further argued by the learned counsel for the appellant that also the impugned orders, dated 16th November, 1981, through which the respondent No, 4 was posted, is also an illegal order as he was promoted against a vacancy which was not his share according to the cadre strength and the rules in force. He also submitted that though the appellant was also promoted on the recommendations of the Promotion/Selection Committee vide order, dated 6th December, 1981 but these orders were issued at a much belated stage and the appellant was required to be promoted from 16th February, 1976, the date on which the respondent No, 4 was promoted. This post remained throughout vacant since February, 1976 as Mr. M. D. Khalid, Superintendent in whose place this vacancy was created remained first on deputation with WAPDA, and then his lien was terminated w. e. f. 3rd July, 1977.
6. Concluding his arguments, the learned counsel for the appellant prayed that the appellant be allowed to be considered to have been promoted w. e. f. 16th February, 1976 the date on which the respondent No, 4 was promoted illegally without his turn/any right accrued to him, keeping in view the cadre strength/ratio his promotion be declared quashed and set aside.
7. Controverting the arguments submitted by the learned counsel for the appellant, the learned District Attorney submitted that he would agree with the parawise comments given by the respondents. According to the calculations by the Promotion/Selection Committee, the vacancy belonged to the cadre of Stenographers and thus respondent No, 4 was correctly promoted. It was also submitted by the learned District Attorney that this matter concerns regarding determining the fitness or otherwise of an official to be promoted/appointed to a particular post and thus this appeal is not within the jurisdiction of this Tribunal as per section 4 (1) (b) of the Punjab Service Tribunals Act, 1974.
8. Rebutting the above objection of the learned District Attorney, the learned counsel for the appellant submitted that this was not a simple matter of determining the fitness of the respondent/appellant but it was a matter of mala fide wrong promotion in contravention of the rules where right of the appellant was jeopardized and he was illegally deprived of his promotion.
Thus, this is within the jurisdiction of this Tribunal, and the Punjab Service Tribunal Act, 1974, does not place any bar on the scrutiny of such cases by the Tribunal. The learned counsel for the appellant relied on the following judgments of High Court, Lahore and Federal Service Tribunal :
(i) PLD 1973 Lah. 42 : ' Writ Petition No, 129 of 1967, decided on 11th February, 1972, in case of Syed Muhammad Ashraf Shah v. Province of West Pakistan &EGAD, Lahore.
(ii) In case of S. Bashi, Ahmad Qazi v. Auditor-General of Pakistan and 4 others 1980 PLC (C. S.) 356.
' The learned counsel for the appellant while placing reliance on these judgments submitted, that it has been made clear that when a civil servant is deprived from holding the post due to no fault of his own, he is entitled to appointment to that post with all consequential benefits including the arrears of pay and allowances admissible under the rules as if he had been actually appointed to that post w. e. f. The relevant date.
9. We have given our anxious thoughts to the arguments of the parties and have consulted the record of this case very carefully. We have studied the history/facts of this case to arrive at a correct conclusion. This issue cropped up with the amendment in the West Pakistan Irrigation Department Ministerial Service (Circle Rules), 1964 amended vide SRO-1114-48171, dated 4th May, 1973. On amendment of the above West Pakistan Irrigation Department Ministerial Service Rules, in 1973, the joint seniority list of Head Clerks and Stenographers had ceased to be maintained and separate seniority list of each feeding cadre of Head Clerks and Stenographers was to be maintained. Thus the promotion to the post of Circle Superintendent was required to be made according to the prescribed share or ratio of each feeding cadre of Head Clerks/Stenographers.
10. The Departmental Promotion/Selection Committee consisting of Superintending Engineer, Headquarters, Multan, as Chairman, Superintending Engineer L.B.D.C. And Technical Officer as members, met on 9th February, 1976 to consider the case of promotion of Head Clerks/Stenographers as Circle Superintendent. While considering the promotion case, on 9th February, 1976, the Committee took decisions having following criterias
(1) Combined seniority list of Head Clerks/Stenographers was taken into consideration for this promotion as issued vide Superintending Engineer Headquarters No, 4592/A1/74/26089/93/341/73, dated 4th September, 1974 ;
(2) While the meeting of Departmental Promotion Committee was being held on 9th February, 1976, the name of respondent No, 4 was got inserted in the combined seniority list at seniority position at 2-A. This was done by calling the case of the respondent No, 4 by the Superintending Engineer, Headquarters, Chairman of the Committee and decision was given there and then fixing his seniority at position at 2-A of the combined seniority list. Office order in this connection was issued vide No, Al/75/3573-77/341/73, dated 9th February, 1976.
(3) The Committee calculated the ratio of the cadre strength of Head Clerks and Stenographers as follows. A reference be made to the last para. Of minutes of meeting of Departmental Selection Committee held on 9th February, 1976, which reads as follows : "The Committee got the figures of promotion of Head Clerks from the time of the Steno was promoted to the rank of Superintendents lastly. Previous to this, Mr. A. D. Khan Steno was promoted a Superintendent. Thereafter following Head Clerks got promotion as Superintendents :-
(1) Sh. Munawar Hussain.
(2) Ch. Nazar Muhammad.
' Now this Committee has further promoted two No, Head Clerks (as above) via.-
(1) Mr. M. D. Khalid,
(2) Khan Muhammad Siddique Khan, which completes the quota of 4 No, Head Clerks before another Steno becomes eligible for promotion. The next man from the quota of Steno to be considered for promotion and also according to the seniority list, is Ch. Muhammad Salim, Steno.
The Committee has gone through his service records (P. Rs,), and find him fit for promotion as Superintendent. He is, therefore, promoted as Superintendent from the next clear substantive vacancy is available."
11. When the above recommendations/promotion of respondent No, 4 came to the notice of Chief Engineer, Irrigation, Multan, he did not agree with the recommendations of the Committee mentioned as per para. 10 (3) above on the plea that in case this ratio was accepted, then the arrangements becomes distribution of vacancies and not the maintenance of overall ratio of the cadres which is contrary to the rules. Discussing the relevant rules, pros and cons of this case, the Chief Engineer Irrigation, Multan vide his letter No, 21109, dated 14th May. 1976, referred the matter to the Secretary, Government of the Punjab, Irrigation and Power Department, Lahore to get the advice/clarification for solving the controversy.
12. The Government of the Punjab, Irrigation and Power Department after thorough examination of this case, decided vide their Memo. No, SOIII (E)-2-46/73, dated the 20th August, 1976, addressed to the Chief Engineer, Irrigation, Multan which reads as follows :- "On thorough examination of this case, it has been observed that the vacant post belongs to the cadre of Head Clerks and, therefore, it is obvious that this vacancy should go to the Head Clerks side on the conditions that whenever the deputationist returns to the Department the junior most will be reverted to his substantive post."
13. The recommendations/decisions of the Promotion Selection Committee, dated 9th February, 1976 were obviously wrong and incorrect on the following grounds :-
(i) That with the amendment in the West Pakistan Irrigation Department Ministerial Services (Circle)
Rules, 1964, dated 4th May, 1973, the common seniority list of Head Clerks and Stenographers had ceased and no promotion could be made on the combined seniority list. The promotion was to be made from separate seniority lists of each feeding cadre of Head Clerks and Stenographers, according to the prescribed share or ratio of each feeding cadre as the combined seniority list was redundant, not to be considered or operated upon, hence selection of respondent No, 4 made on the basis of this combined seniority list was not in order.
(ii) As per clear cut advice given by the Government referred in para. 12 above, the vacant post belonged to the cadre of Head Clerks and not to the Stenographers. Thus, selection/promotion of respondent 4 (a Stenographer) was not correct and unlawful.
14. On receiving of this clear cut advice from the Government the Promotion Committee discussed this matter again in their meeting, dated 13th/15th September, 1976 but they stuck to their first decision. The case was again considered by the Committee in their meeting on 22nd May, 1978, but again Committee stuck to their earlier decision as taken in their meetings, dated 9th February, 1976 and 13th/15th September, 1976. The Superintending Engineer Headquarters and Chairman, Departmental Promotion Committee, Multan Region, Multan, referred this matter to the Secretary to Government of Punjab, Irrigation and Power Department, Lahore, vide his letter, dated 6th June, 1978 (without routing this through the Chief Engineer Irrigation Multan) wherein it was requested that decisions taken by this Committee, on 9th February, 1976, 13th/15th September, 1976 and 22nd May, 1978, in favour of Mr. Muhammad Salim Stenographer for selecting and promoting him as Superintendent was correct and they would stick to the same and a request was made to the Government as follows :-- ""It is, therefore, earnestly requested that the advice afforded vide your memo. No, S.
0. III (E) 2-46/73, dated 20th August, 1976, without being sought for by the Committee may kindly be withdrawn to admit implementation of the decision of the Committee and let the aggrieved person, if any, Knock at the door of the Tribunal.'
15. However, the matter remained under consideration with the Government in the Irrigation Department and S&GAID and finally Government of the Punjab, Irrigation and Power Department after consulting S&GAID vide their letter No, S.
0. III (E) 1-3/79, dated 22nd August, 1981 conveyed the following advice of S&GAID decision to Chief Engineer Irrigation, Multan. The relevant paras. Are reproduced below :-
(I) "the promotion to the post of Superintendent is to be made from the feeding cadres of Head Clerks and Stenographers in proportionate to their cadre strength in the region and future Promotion, if any, should be made from the relevant cadres to maintain this rule.
(3) Joint seniority list of Head Clerks and Stenographers has ceased to be maintained with the amendment of West Pakistan Irrigation Department Ministerial Service Region and Circle (Cadre)
Rules, 1964, vide Notification No, SOR-III-1-48/71, dated 4th May, 1973. Separate seniority list of each feeding cadre should be maintained but promotion should be allowed according to the prescribed share or ratio of each feeding cadre."
16. Thus, it is clear from the above para. That the Government of the Punjab in the Irrigation Department did not change their earlier decision conveyed vide their letter, dated 20th August, 1976, wherein it was directed that the vacant post belonged to the cadre of Head Clerks and the vacancy would go to them. The joint seniority list of Head Clerks/Stenographers from 4th May, 1973 onward ceased to exist, on amendment in the Service Rules.
17. It is worth mentioning that the Departmental Promotion/Selection Committee is a recommendatory/Advisory body which is concerned with the consideration and recommendations regarding determinations of fitness of an official for a particular post. It was unto the appointing authority to first decide the right/cadre of a particular official to a post and then the appointing authority was required to refer the case of these officials who fell in a proper category to be considered for selection/promotion against a particular post. In this particular case, it was for the appointing authority to first decide the cadre whether these posts were required to be filled from the Head Clerks or the Stenographers and then the appointing authority should have referred the case to Promotion/Selection Committee, of only those officials who were required to be considered for promotion for deciding the fitness from the appropriate feeding cadre. But, the Promotion/Selection Committee themselves took up the functions of the appointing authority and decided the issue of the quota of feeding cadres which did not come under the purview of the Committee. Thus, the Committee transgressed its jurisdiction in deciding this issue. The right course for the Committee was first to ask the appointing authority to decide the clear cut cadre from which the promotions were to be made and then, the appointing authority should have referred to the Promotion Committee the cases of the officials belonging to that particular cadre for determining the fitness.
18. It is also interesting to note that the Promotion Committee stuck to their earlier decision taken on 9th February, 1976, time and again, in spite of the fact that clear cut advice from the Government of the Punjab, in the Irrigation Department was given, vide their order, dated 20th August, 1976 on the issue. As issue involved was not concerning the fitness of the officials but regarding wrong interpretation of rules by the Committee in deciding the feeding cadres, it was binding upon the Committee to accept the advice given by the Government. The Committee was adamant to stick to their decision on the plea that the decision of the Committee was not open to appeal to higher authorities in terms of provisions of section 21 (2) of the Punjab Civil Servants Act, 1974 ; but the Committee did not realize that the issue under dispute was regarding interpretation of rules in determining the cadre strengths and not concerning the fitness of the officials. The Government of the Punjab, in the Irrigation Department which had constituted this Committee under rules 3 and 4 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, was the competent authority, had inherent jurisdiction to issue advice in this matter and it was incumbent upon the Promotion/Selection Committee to act accordingly and abide by it.
19. A reliance be made, in similar situation as per para. 18 above, to the judgment of this Tribunal in Case No, 445/562 of 1979, decided on 12th October, 1980 in case of Muhammad Ishaq v. Secretary, Forestry and Wildlife wherein the orders of the Secretary Forestry and Wildlife, in quashing an illegal promotion of a Game Inspector made in violation of express provision of rules, ordering the reversion and. Correcting the order of promotion of another Game Inspector in his place, were up held by this Tribunal. This view point was also upheld by the Supreme Court of Pakistan vide judgment reported as 1982 SCMR 186. The operative part of the judgment as contained in para. 7 is reproduced below :- "7. It is correct that the petitioner was not afforded a hearing before the Secretary. The question, however, to be examined in these proceedings and before the Service Tribunal was whether the promotion of the petitioner and his posting to Kasur on such pro motion was in accordance with law and could be saved. If the vacancy did not belong to the Division in which the petitioner was serving then he could not be promoted under the rules and if the promotion had taken place, it was against law. We find that on merits the petitioner had no right to protect such a promotion. It being against law could be set aside."
20. Consequently respondent No, 4, Mr. Muhammad Saleem, Stenographer was posted as officiating Circle Superintendent implementing his promotion made vide Office Order No, 727/A- 1/76/6340/787/69 Vol. III, dated 16th February, 1976, by Chief Engineer, Irrigation, Multan Region, Multan vide his Order No, Al/81122851, dated 16th November, 1981. The appellant, Sh. Fazal-ur- Rehman, Head Clerk was also promoted as officiating Circle Superintendent, as declaring him fit selection by the Departmental Selection/Promotion Committee, vide Chief Engineer, Irrigation, Multan order No, A-1/81/24252/787/69, dated 6th December, 1981.
21. We have also to deal with the objection of the learned District Attorney, objecting the jurisdiction of this Tribunal for hearing this appeal under section 4 (1)(b) of the Punjab Service Tribunals Act, 1974 and the plea of the learned counsel of the appellant for quashing illegal promotion of respondent No, 4 and allowing the appellant's promotion from 16th February, 1976 when respondent No, 4 was illegally promoted. It may be necessary, to quote the following judgments to adjudicate these issues:-
(i) 1980 PLC (C. S.) 356 (Federal Service Commission in case of S. Bashir Ahmad Qazmi v. Auditor- General of Pakistan and 4 others.
Paras. No, 14 (Page 180), 15 (Page 180), 19 (Page 181) and 23 (Page 182) are reproduced below to elucidate the issue :- "14. The learned counsel also argued that since the petitioner has been deprived of serving on the post of A.A.O. For no fault of his own, but this occurred due to the fault or mistake of the departmental authority, he was entitled to that appointment with effect from the date his junior was promoted with all the consequential benefits in seniority as A.A.O., including the salary and allowances admissible under the rules. The learned counsel relied on the judgment of the 'Honourable High Court reported in PLD 1973 Lah. 42-Writ Petition No, 129 of 1967, decided on 11th February, 1972. The relevant portion of the judgment of His Lordship Mr. Justice Nasim Hasan Shah runs as follows :- If a civil servant is deprived of serving on a higher post, for no fault of his own, but this occurs due to the fault or mistake of the Government and subsequently it is found that the civil servant was in fact entitled to serve on the higher post, he would be entitled to salary of the higher post because he has been deprived of rendering service in the higher post for no fault of his own."
"15. It was contended by the departmental representative and the learned counsel for State that jurisdiction of the Service Tribunal is barred from adjudication in cases of promotions and transfers under section 4 (1) (b) of the Service Tribunals Act, 1973. The claim of the appellant for promotion and monetary benefit accruing, therefrom cannot, therefore, be the subject of scrutiny by the Service Tribunal."
"19. As to 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 in my mind above the intention of the provisions of the Act. What is intended to be barred is the scrutiny of the administrative discretion, to redetermine fitness or otherwise of a civil servant to hold a particular post or for promotion to the higher post. The consideration for such a promotion under the applicable rules is a right of the civil servant, and the above-referred provisions of the Service Tribunal's Act do not place any bar on this scrutiny. It is nowhere contended by the respondent department at any stage Mr. Bashir Kazmi, the appellant, was considered as unfit for promotion to A.A.O's. Cadre or to hold that post. In fact, he has been promoted to the post of A.A.O. With effect from a subsequent date on approval on the competent Departmental Promotion Committee. The clear inference, in my opinion, is that he has been deprived of serving on a higher point for no fault of his own."
"23. Judging from all the circumstances, facts and arguments of the case, it is my opinion, that the learned counsel for appellant has correctly placed the reliance on the judgment of his Lordship Mr.., Justice Nasim Hasan Shah, cited above. Clearly enough Mr. Kazmi has been deprived of holding the post of Assistant Accounts Officer from the date Mr. Aleem was appointed to that post due to no fault of his own. He is, therefore, entitled to that appointment with all the consequential benefits including the arrears of pay and allowances admissible under the rules as if he had been actually appointed to that post with effect from the relevant date."
(ii) 1981 PLC (C. S.) 562.-Muhammad Sharif v. Secretary, Irrigation and Power Department etc. In case of Writ Petition No, 7665-S-1980, decided on 28th April, 19.81-Paras. 7 and 8 (page 223) are reproduced below :- "7. Section 4 of the said Act does not oust the jurisdiction of the Tribunal in the matter of all questions relating to promotion. It is only the question of fitness for promotion which cannot be agitated before the Tribunal. As explained above, the petitioners have not been declared unfit for promotion due to any reason, such as general reputation for corruption, but have been found not eligible for promotion because they have not cleared the departmental examination. As. Stated above, the question of fitness for promotion cannot be gone into by the Tribunal but the question of eligibility for promotion can be determined by the Tribunal. This view was also recently expressed by a Division Bench of this Court in an unreported judgment delivered in Intra-Court Appeal No, 644 of 1981, Syed Ahsan All Bokhari v. Director of Labour Welfare etc. "8. It is not disputed that the matter involved in the present petition relates to the terms and conditions of service of the petitioners. In view of the provisions of section 3 of the said Act such a matter is within the exclusive jurisdiction of the Tribunal. The exception provided in section 4 of the said Act, namely, that the question relating to the fitness or otherwise for promotion would not be taken cognizance of by the Tribunal, is, for reasons explained above, not applicable to the present case. I am, therefore, of the view that the dispute involved in this case can be exclusively determined by the Tribunal and as such the jurisdiction of this Court to deal with that matter is barred by section 3 of the said Act as well as by Article 212 of the Constitution which forms part of the provisional Constitution Order, 1981 as well.
(iii) 1981 PLC (C. S.) 875 in case of Ishfaq Ahmad v. I.-G. Police Punjab and others, wherein it was decided by this Tribunal, as per para. 5 (Page 876) as follows :- "5. In view of the above the appeal is accepted. The appellant will be deemed to have been admitted in List 'F' w. e. f. 15th December, 1973 and as a consequence will be given his due seniority vis-a-vis the contesting respondents. There will be no order regarding costs."
The above view point was also upheld by the Supreme Court of Pakistan vide Inspector-General of Police v. Ashfaq Ahmad and others 1983 SCMR 34.
(iv) NLR 1981 T D 537 in case of Iftikhar Ahmad Butt v. Police etc. In case of Appeal No, 128/614 of 1980, decided on 15th February, 1981, by Full Bench of Punjab Service Tribunal, Lahore. The relevant portion of this judgment froth. Pages 539 and 540, are reproduced below :- "As regards the mischief of section 4 (b) it would be sufficient to rely upon the authorities quoted before us by the learned counsel for the appellant. Firstly, he has relied on NLR 1979 Service Kar. 121 in which it has been held by the learned Judge of the High Court as follows :- "......... Because the question in this case is not whether the order of the Departmental Promotion Committee was erroneous or unjustified on merits as to fitness of respondent No, 1, to be promoted (which question would obviously be solely within the descretion of the competent authority not subject to agitation by appeal), but the question was whether any authority could refuse promotion to respondent No, 1 in view of the relevant rules having the force of law that the passing of the Qualifying Examination was ipso facto sufficient to entitle the successful candidate to promotion to the higher grade. Clearly, therefore, clause (b) relied upon by the learned counsel for the appellants was not attracted in the present ease "
' Secondly, he has relied on NLR 1978 Service 162 in re. Ch. Muhammad Aslam v. Province of Punjab, wherein it was observed as under "As regards the objections as to our power to interfere with the order of promotion, it is correct that we cannot appropriate up to ourselves the power to examine the merits of the determination by the departmental authority as to the fitness or otherwise of a civil servant to hold a post or to be promoted, but we do not find that the said provision in any manner precluded us from examining the fact that a valid determination had in fact been made by the departmental authority. Learned counsel for the respondent has failed to produce anything to the contrary. We, therefore, do not find any force in this contention of the Government Pleader also. We are of the view that in the changed context the appellant is entitled to have a determination as to his fitness for promotion on 29th August, 1973 alongwith respondents Nos, 3 to 5 to whom he was admittedly senior.
Consequently the appeal is accepted to this extent that the Director-General, Excise and Taxation, Government of the Punjab is directed to determine afresh the case of promotion of the appellant with effect from 29th August, 1973 in the light of our observation above. The parties to bear their own costs."
' In view of the law laid down above, we are of the considered opinion that the case of the appellant is not hit by section 4 (b) of the Punjab Service Tribunal Act, 1974.
22. Keeping the above judgments in view, we conclude that the case of the appellant is not hit by section 4 (1) (b) of the Punjab Service Tribunals Act, 1974 and it is within jurisdiction of this Tribunal to deal with the matter. The appellant is also entitled to his promotion in February, 1976, a right accrued to him, in place of respondent No, who was promoted illegally and out of turn, in violation of express provision of the rules, to the post of Superintendent vide order, dated 16t February, 1976 mentioned in above paras. As the appellant was deprived of promotion/holding the post of Superintendent from February. 1976 (when the vacancy occurred), due to no fault of his own, he is, therefore, entitled to the promotion/ appointment to the said post with all the consequential benefits under the rules as if he had been actually promoted to the post w,e,f, the relevant date.
23. Keeping in view the detailed analysis of this case we hold that the vacancy was meant for the Head Clerks and not for the Stenographers as per amendment in the West Pakistan, Irrigation Department Ministerial Service (Circle) Rules, 1964, dated 4th May, 1973 and also as per orders/ advices issued by the Government of Punjab, Irrigation and Power Department vide their Memo. No, SOHI (E) 2-46/73, dated 20th August, 1976 and No, SOIII (E) 1-3/79, dated 22nd August, 1981. It was not the turn/right of the respondent No, 4 for this promotion. Thus, the promotion of Mr. Muhammad Saleem, Stenographer, respondent No, 4, as Superintendent vide order, dated 16th February, 1976 on the recommendations of Department Promotion/Selection Committee made in their meeting held on 9th February, 1976 and his subsequent posting as Circle Superintendent vide order, dated 16th November, 1981 on the basis of above promotion which were in contravention of the rules, were also on the basis of joint seniority lists which had ceased ; thus, were unlawful. Thus, the impugned order of promotion and posting of Mr. Muhammad Saleem, Stenographer, respondent No, 4, issued, vide Order No, 727/A1/76/6340/787/69 (Vol. III), dated 16th February, 1976 (endorsed to various offices, dated 19th February, 1976) and No, AL/81/22851, dated 16th November 1981, respectively, are set aside, being illegal and are quashed. The appeal of the appellant is accepted. The appellant is directed to be deemed to have been promoted as officiating Superintendent in place of respondent No, 4, who was incorrectly promoted and the name of the appellant, Sh. Fazal- urRebman, Head Clerk, shall be substituted, in para. HI, in place of respondent No 4, Mr. Muhammad Saleem, Stenographer, in the promotion Order No, 727/A-1/76/6340/787/69 (Vol. III), dated 16th February, 1976 endorsed to various offices vide No, 727/AI/76/6341-45/787/69 (Vol. III), dated 19th February, 1976. With this substitution, the promotion of the appellant will become effective since February, 1976, against the vacancy created from the actual date of taking over of Mr. M. D. Khalid, as officiating Superintendent, on deputation with WAPDA and orders of appellant's promotion, dated 6th December, 1981 will, thus, automatically stand modified in accordance with this substitution.