' S. ABDUL JABBAR KHAN (CHAIRMAN).-Safdar Ali Chaudhry, Director Forestry, Research Training Centre, Lahore, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded Government of the Punjab through Chief Secretary, Punjab, Civil Secretariat, Lahore, Messrs Aziz Aslam Khan, Muhammad Shamim, Javed Akhtar Ahsan, Mian Mahmood Ahmad, all Conservators of Forests and Riazul Hassan, Deputy Secretary (Planning)
Forestry, Wildlife and Fisheries Department, as respondents.
2. By virtue of this appeal it has been prayed that the impugned orders. Dated 18th April, 1982, 27th April, 1983 and the orders of promotion of contesting respondents Nos, 5 and 6, if any, in so far as these denied right of being considered for promotion to Basic Scale 19 to appellant as well as promotion policy dated 31st October, 1982 and the adoption by Punjab Government as per circular letter, dated 20th November, 1982 may be set aside and respondent Government be directed to consider the appellant for promotion as Conservator of Forests in Basic Scale 19 from 18th April, 1982 I e. The date from which next junior officers were so promoted and to maintain appellant's seniority over the contesting respondents Nos, 2 to 6.
3, Before we give brief facts of the case it will be useful to mention here that the learned counsel for the appellant requested for the deletion of Messrs Mian Mahmood Ahmad and Niazul Hassan, contesting respondents Nos, 5 and 6 from the list of respondents as no final order in their respect has so far been passed. We have accepted the request of the learned counsel for the appellant and ordered that Messrs Mian Mahmood Ahmad and Riazul Hassan are no more respondents in this case, therefore, we will strike off their names as such.
4. Brief facts of the case are that the appellant was selected as Assistant Conservator of Forests by the West Pakistan Public Service Commission and was appointed as such, w. e. f. 7th October, 1961.
In the year 1973 the appellant was selected by the Government of Nigeria to work in the Forest Department of that Government. The Government of the Punjab vide order, dated 10th April, 1973 allowed the appellant to take up assignment of Assistant Conservator of Forests Grade-1 in the Government of Nigeria for a period of four years, w. e. f. The date of his relief from duty. However; this deputation was later on extended for six years by two orders, dated 21st April, 1977 and 24th March, 1979. While the appellant was still on deputation with the Government of Nigeria, he learnt that during his absence Messrs Aziz Aslam Khan and Muhammad Shamim were promoted as Conservators of Forest in Grade-19 w. e. f. 18th April, 1982. The appellant came back to his country and submitted representation, dated 29th August, 1982 which was considered and rejected by the respondent Government with the observation that his case for promotion will be considered by the Government if he had joined this Department. The appellant after receiving this reply once again continued to work with the Government of Nigeria and it was only in July, 1983 that he returned to his country after completing his full term of deputation there. On his arrival he learnt that Javed Akhtar Ahsan, contesting respondent No, 4 had also been promoted by order dated 27th April, 1983 as Conservator of Forests in N. P. S. 19, w. e. f. 31st March, 1983. He represented against the promotion of his juniors on 1st September, 1983 reiterating his earlier demand for promotion on the strength of his terms of deputation as well as under the rules. As no reply was received by him with regard to his representation he has waited for 90 days and has filed this appeal before this Tribunal.
5. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have also heard Sardar Shahid Iqbal, counsel for contesting respondents Nos, 3 and 4 and Mr. Riaz Anwar, counsel for respondents Nos, 5 and 6 and have perused the record of this case carefully with their assistance.
6. Learned counsel for the appellant has submitted that Government of Pakistan formulated promotion policy, dated 31st October, 1982 in respect of civil servants on deputation to foreign Governments/Agencies, etc. This policy according to the learned counsel for the appellant was repugnant to the proVIsions of section 9 of the Punjab Civil Servants Act, 1974, as well as the statutory rules as contained in rules 4.13 and 10.5 of C. S. R. (Punjab) Vol. I, Part I. It was further submitted that promotion of appellant was subsequently examined by the Regulation Wing of the Services, General Administration and Information Department in consultation with the Law Department and according to the consensus of opinion arrived between the two Departments, the said promotion policy was not considered consistent with the aforesaid legal provisions and was declared inapplicable to the civil servants. It was further submitted that condition No, 5 of the deputation order was factually. a contract between the appellant and the Government and latter was bound by it. According to- the learned counsel for the appellant under that condition action on the part of Government not to consider the appellant for promotion from l0th April, 1982 was illegal and unjustified. It was also urged that any executive instructions would be invalid vis-a-vis Rules and the Act so cited above and even if it was considered for the sake of argument that Government could give such instructions the same could only be prospective in nature and not retrospective. He has relied on the judgment of this Tribunal in case of Professor Abdus Sattar Chohan v. Government of the Punjab (Case No, 512/249 of 1982, dated 3rd May, 1984).
7. On the other hand learned District Attorney as well as Sardar Shahid Iqbal, learned counsel for respondents Nos, 3 and 4 have come out with the following objections :-
(i) That the impugned orders were passed by the Government on 18th April, 1982 and 27th April, 1983, therefore, the appeal which was filed after the expiry of 30 days of the communication, was time-barred.
(ii) That a single appeal is not competent against two separate orders, dated 18th April, 1982 and 27th April, 1983 as the parties in each case are different.
(iii) That the appeal was not maintainable as under the proviso to section 4 of the Punjab Service Tribunals Act, 1974, no appeal was competent against an order or decision of the departmental authority determining fitness or otherwise of a person appointed to or hold a particular post or to be promoted to a higher grade or pro forma promotion.
(iv) That the promotion including pro forma promotion cannot be claimed as of right under rule 9 of the Punjab Civil Servants Appointment and Conditions of Service) Rules, 1974.
8. With regard to the merits of the case it was submitted that the eriod of deputation under the rules could not exceed more than 5 years and the stay of the appellant for further 4 years was at his own choice and he would not be entitled to rely on Condition No, 5 of the order of eputation. It was argued that this condition was not repeated in the last order extending the term of deputation of the appellant for further four ears. It was vehemently argued that the Government of Punjab vide policy letter, dated 20th November, 1982 fully laid down the principle of promotion and according to the said principle, civil servants abroad would .e eligible to earn one good report before they were considered for the said promotion. It was also pointed out that the name of the appellant was onsidered by the Provincial Selection Board on 16th January, 1983 and was eferred till the appellant resumes duty and earns a report. He challenged he applicability of rules 4.13 and 10.5 of the C. S. R.
Punjab, Vol. I, Part I and submitted that the same became infructuous with the coming into orce of Punjab Civil Servants Act, 1974.
9. We have given our anxious thought to the arguments advanced the parties and would first of all advert to the point of limitation so raised by the learned counsel for respondents Nos, 3 and 4 as well as learned District Attorney. What we find is that order, dated 10th November, 1982 by which the appellant was informed that his representation for grant of promotion in absentia to the post of Conservator of Forests, w. e. f. 18th April, 1982 was considered and rejected, was not a final rejection in the sense that it was observed in the same order that his case for promotion would be considered by Government after he had joined the Government. In this manner the Government's letter issued fully allowed the appellant to make out his case after he had returned to his country on the expiry of his deputation. This being so we do not find any reason to hold that the second representation of the appellant was not competent and the matter had become past and closed.
In this situation we are of the considered opinion that the appellant was fully within his rights to spell out his grievance after his arrival in the country which the appellant did on 1st September, 1983. However, it is borne from record that the appellant was under obligation to file this appeal in the month of December, 1983 but the appeal before us has been filed on 16th April 1984 i,e, after 3 months and 15 days. In this connection the appellant has filed an application for condonation of delay under section 5 of the Limitation Act and has submitted that he waited for this period as he had learnt that the earlier decision of Government vis-a-vis instructions by which it had decided that person on deputation would only be entitled for promotion after he has earned one A. C. R., was being reviewd, in the light of the advice submitted to it by the S G A & I Department in consultation with the Law Department. Moreover, in the light of judgment of Mr. Abdus Sattar Chohan, instructions so issued by the Government were declared void. Vide this application, it has been earnestly prayed by him that under the circumstances, the delay which has so occurred was for justified reasons and liable to be condoned.
10. We have carefully considered this aspect of the case and have also perused the advice of the S & G A 1 Department in consultation with the Law Department as well as judgment delivered by us in the case of Professor Abdus Sattar Chohan, we hereby condone the delay and hold that the appeal before us is not time-barred.
11. With regard to the second objection that one appeal cannot be filed against two orders, we repel the same on the ground that substance of both the orders is the same that the appellant was deferred because of his being away abroad on deputation.
12. Regarding objection No, 3 that no appeal is competent against an order or decision of the departmental authority determining fitness or otherwise of a person appointed to or hold a particular post or to be promoted to a higher grade or pro forma promotion, we have no dispute with D the same as in the present case we are not sitting over the decision of the Government of this nature but are only considering the request of the appellant that his case is also a case for consideration of promotion from the date his junior was so promoted.
13. As regards objection No, 4 that pro forma promotion cannot be claimed as a matter of right we find that this objection is misconceived as we are not conferring any pro forma promotion upon the appellant and what we are considering in this case is whether he would be eligible for pro forma promotion or not. However, ultimate discretion will remain with the Government. After disposing of all these preliminary objections we will now enter into the merits of the case.
14. The fact of the matter is that the appellant was sent on deputation vide order, dated 10th April, 1973 and it was incorporated in the' said order as under :- "5. The lien of a confirmed Government servant will remain in the parent Department. He will be given substantive or officiating promotion as the authority competent to order promotion may decide in accordance with rule 10.5 of Civil Services Rules (Punjab) Vol I, Part I."
This deputation was extended to another year vide order, dated 21st April, 1977 and later on vide order, dated 24th March, 1979 his period of deputation was further extended. We reproduce the order as this will be the crucial order vis-a-vis the argument of the learned counsel for the appellant as well as learned counsel for the respondents :- "In continuation of his Department order of even number, dated 21st April, 1977, the period of deputation of Mr. Safdar Ali Divisional Forest Officer with the Government of Nigeria is hereby extended further for a period of 5 years from 24th April, 1978 in relaxation of the deputation policy as a special case."
There is a specific mention that this order was in continuation of the earlier order of 21st April, 1977.
In this manner when we examine the order, dated 21st April, 1977, we find that the deputation period of the appellant was etended by another year which was earlier sanctioned vide order, dated 10th April, 1973. In this way the basic order would be the order, dated 10th April, 1973, which contains condition No, 5 which we have already reproduced above. In the light of these three orders we have no hesitation to hold that the basic order of deputation would be the order of 10th April, 1973 and the terms and conditions so incorporated in the said order would remain effective in all the subsequent orders which were passed later on in continuity of this order. In these circumstances the objection of the learned District Attorney as well as learned counsel for the respondents is misconceived. These three orders are to be read collaterally and condition No, 5 existing in the original order of deputation will positively remain intact. The condition No, 5 clearly mentions that the appellant will be given substantive or officiating promotion E as the authority competent to order promotion may decide in accordance with rule 10.5 of C.S.R. (Pb.), Vol. I, Part I. It will be useful to reproduce this at this stage which runs as under :- "Rule 4.13: Note 4 (1)-The following, guiding principles are laid down for the working of the convention usually known as the 'next below rules'
(1) A Government servant out of his regular line should not suffer by forfeiting officiating promotion which he would otherwise have received, had he remained in his regular line."
"Rule 10.5.-(1) A Government servant transferred to foreign service shall remain in the cadre or cadres in which he was included in a substantive or officiating capacity immediately before his transfer. He may be given such substantive by officiating promotion in those cadres as the authority competent to order promotion may decide. In giving promotion such authority shall take into account."
' While assessing the strength of this rule we shall have also to take into consideration section 9 of the Punjab Civil Servants Act, 1974, as reproduced below :- "Section 9-Posting and transfer :-Every civil servant shall be liable to serve anywhere within or outside the Province in any post under the Government of the Punjab or the Federal Government or any Provincial Government or a local authority or a corporation or a body set up or established by any such Government : ' Provided that, when a civil servant is required to serve in a post outside his service or cadre, his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled if he had not been so required to serve."
This being the rules of C. S. R. (Pb.), Vol. I, Part I and the Act belonging to the terms and conditions of service of the appellant any law of instructions relied upon by the learned counsel for the respondents as well as learned District Attorney would be of no legal effect. We have elaborately considered this point in case of Professor Abdul Sattar Chohan as mentioned above and apply the same in extenso, in the present appeal of the appellant.
15. In view of the above we are of the considered opinion that the rights of appellant for consideration of promotion would remain in field and direct the respondent Government to consider him for promotion in N.P.S.-19 with effect from the date his next junior Mr. Aziz Aslam Khan was so promoted, in the light of judgment given in the case of Professor Abdus Sattar Chohan.
However, we repel the prayer of the appellant that the promotion already made in favour of respondents Nos, 2 to 4 be quashed on the ground that this Tribunal, has no such powers to sit over judgment of promotion which have already been made when the same do not suffer from any act of fraud, malice or excess of jurisdiction or in contravention of rules.
16. Resultantly the appeal succeeds to the extent so indicated above. However, there will be no order as to costs.