' S. HAFIZIJR RAHMAN (MEMBER).-- This appeal by Muhammad Rafiq Malik seeks the setting aside of the order dated 7-6-1981 issued by the Secretary, Labour Department, whereby the representations of the contesting respondents viz. Khizar Haider Malik, Abdul Majid and Salahuddin Bhatti against the appellant's promotion were accepted. It also seeks to get restored the order dated 2-9-1980 passed by the same authority according to which the appellant's representation was accepted and he was given pro forma promotion w,e,f, 23-10-1973. The appellant prays that he may be declared senior to the contesting respondents as Assistant Labour Officer (A.L.0.)
2. Brief facts of the case are that the appellant was appointed Stenotypist in the Labour Department w,e,f, 21-2-1963 and was promoted Stenographer from 30-8-1966. On 13-5-1969 he was appointed labour Inspector and was further promoted as A.L.O. From 30-5-1977. This last promotion was made after the appellant had represented that he should be given promotion in pursuance of the amendment in the West Pakistan Labour Welfare (Subordinate Service)
Recruitment Rules, 1969, whereby 10 per cent of the posts of A.L.O. Were prescribed to be filled up by promotion from among Assistants, Head Clerks and Stenographers with five years experience as such in the region where the vacancy occurs. As a result of this promotion the appellant was shown senior to the contesting respondents in the seniority list issued by the Director Labour Welfare Punjab, vide his letter dated 11-10-1980. The contesting respondents represented against this seniority and the respondent authority, after giving them and the appellant a hearing, passed the impugned order. It is stated that the order favourable to the appellant was passed on the assumption that he held a lien on the post of Stenographer, and as this order was passed without considering the point of view of the affected respondents on this point, this was an inherent flaw in the order.
3. The parties were heard. On behalf of the appellant it was contended the he was promoted as Stenographer on 26-8-1966 against a permanent substantive post, on probation for one year. As the probation was never extended, the appellant automatically stood confirmed w,e,f, the above date at the end of two years i,e, on 26-8-1968, as also in accordance with C.S.R.
3.
17. In fact when the appellant was promoted as Labour Inspector the order mentioned retention of his lien as Stenographer. When, on the amendment of the recruitment rules to accommodate Stenographers, Assistants and Head Clerks in 10% posts, the appellant was not promoted as A.L.U.
He represented to the Secretary and thus the order of 2-9-1980 was passed. This order was not passed in a whim but after due consideration and after the Director (Labour Welfare, Punjab) had recommended on 11-6-1975 that the appellant was entitled to promotion from 23-10-1973, the date on which the rules were amended. As for the objection that the respondents had not been heard while passing this order, it was contended that they had no right to be heard as not being Stenographers they were not at par with the appellant. It was also submitted by learned counsel that once the order of 2-9-1980 had been acted upon the Secretary had no locus poenitentiae to go back on the same. In this context the well-known case of Raja Muhammad Nawaz in 1981 SCMR 523 was cited to bring home the point that even where a promotion order was not sanctioned by the rules it could not be withdrawn if in the meantime, a valuable right had accrued to a civil servant. It was further argued by learned counsel that since the contesting respondents had been promoted from Labour Inspectors to A.L.Os. And not out of the 10$ quota they were not concerned with the appellant's promotion; in support learned counsel cited 1981 PLC (C S T) 420, a judgment of this Tribunal. Another judgment of this Tribunal quoted by learned counsel was the case of Salamat Ali v. Home Secretary, Punjab, whereby it had been held that a promotion made by the competent authority could not be questioned by any other interested person.
4. The learned D.A. For the respondent Secretary, relied on the parawise comments to argue that in passing the impugned order that authority had only righted a wrong done to the contesting respondents. Learned counsel for the respondents made detailed arguments to present their side of the case. He averred that the "promotion" of the appellant from the post of Stenographer to that of Labour Inspector was not a promotion because the former post was in a higher grade. Moreover, the appellant was not eligible to be made A.L.O. Because the post of Stenographer held by him was temporary, he had never been promoted as Stenographer and thus could not hold a lien on that post. In the order of his so-called promotion as Labour Inspector the reference to lien is that if he has any lien; the retention of lien is not specifically mentioned. It was submitted that the appellant could not draw benefit from the amended rules because he did not possess five years' experience as Stenographer, whereas the respondent acquired the right to represent because their seniority was adversely affected. If the appellant had any right to a post of A.L.O. He should have agitated when he was Labour Inspector. As for the appellant's reliance on the principle of locus poenitentiae, it was argued that the principle was not attracted in the instant case because the appellant was actually ineligible for the post of A.L.O. From 23-10-1973 not having completed five years' experience as Stenographer. His seniority as A.L.O. Had to count from 30-5-1977 when he was promoted as such from the post of Inspector by virtue of his seniority and experience as Inspector and not on the basis of his less than 5 years' service as Stenographer.
5. After hearing the detailed arguments of the parties, in my opinion the main point to be decided is whether or not the appellant had the five years experience which could entitle him to pro forma promotion as A.L.O. w,e,f, 23-10-1973 under the amended rules. What goes in the appellant's favour is the admission in the parawise comments that "in the appointment order the lien of the petitioner on the post of Stenographer was retained". It is further stated in the comments that it could not be ascertained whether the post of Stenographer was substantive permanent or not. As nothing has been produced by the respondents to show that it was not substantive permanent, we have to accept the statement of the appellant that it was so. We are afraid we cannot subscribe to the assertion made on behalf of the contesting respondents that the appellant was not promoted as Stenographer, as the order filed by the appellant clearly shows that he was promoted. Thus, when the reference to his lien as Stenographer was made in the words. "If any" it decidedly meant that he did hold a lien thereon. We also cannot quarrel with the appellant's argument that since the period of his probation as Stenographer was not extended he would be taken to have been confirmed as Stenographer two years from the date of his promotion as such. Thus, if at all the appellant usurped anyone's right it would be that of any other Stenographer or Head Clerk or Assistant who could benefit from thee 10% quota and not of the contesting respondents who never occupied any of these posts.
6. One objection to the order of 2-9-1980 particularly stressed on behalf of the respondents is that the appellant did not have five years' experience as Stenographer. Apart from the strictly legalistic interpretation there is also common sense view of the matter. The post of A.L.O. Is of a technical nature. One may ask; who can be expected to work better as A.L.O. One who only has experience of five years as Stenographer or one who has done less than 5 years as Stenographer but in addition has put in a number of years as Labour Inspector? However, this commonsense view is mentioned only en passant and not as a fact that stands in favour of the appellant, because otherwise it might be described as obiter dicta.
7. The upshot of the discussion in paragraph 5 above is that as Stenographer the appellant was working in a substantive permanent post and had retained his lien on it when he became Labour Inspector. The respondents have not been able to file any document or evidence to point to a contrary position. Therefore, when the Secretary passed the order of 2-9-1980 he was correct in his appreciation of the situation and there was no cause later to pass the impugned order. The order of 7-6-1981 is, therefore, set aside as null and void. Resultantly, the order of 2-9-1980 made by Secretary Labour will continue to hold the field, with attendant benefit of seniority to the appellant.
8. The appeal thus succeeds and is accepted, with no order as to costs.