S. ABDUL JABBAR KHAN (CHAIRMAN).---Messrs Raja Muhammad Ashraf Bhatti, Additional Commissioner (Consolidation), Rawalpindi, M.A. Lone, Secretary (Settlement and Cons.) Board of Revenue, Punjab, Lahore, and Rao Shamsher Ali Khan, Additional Commissioner (Cons.), Multan, have filed these appeals under section 4 of the Punjab Service Tribunals Act, 1974, in which Raja Muhammad Ashraf Bhatti has impleaaeo the Government of the Punjab through the Chief Secretary, Civil Secretariat, Lahore, the Additional Secretary (Services) to Government of the Punjab, Services, General Administration and Information Department, Lahore and respondent No 3 Murtaza Beg Barlas to 105 as per Appeal No.825/1080 of 1984, whereas M.A. Lone, has impleaded the Government of the Punjab through the Chief Secretary, Civil Secretariat, Lahore, the Additional Secretary (Services) to the Government of the Punjab, Services, General Administration and Information Department, Lahore and respondent No. 3 Murtaza Beg Barlas to 29, in Appeal No. 827/1081 of 1984 and Rao Shamsher Ali Khan has impleaded Government of the Punjab through Secretary (Services), General Administration and Information Department, Lahore, and respondent No. 2, Sh. Said Iqbal Shamsi to 46 in Appeal No. 828/1082 of 1984, as respondents.
2. By virtue of these appeals the appellants have prayed that their appeals be accepted and seniority list, dated 25-9-1982 be set aside and their seniority be determined from the date of assumption of the charge in Grade-18.
3. Although the history of each case is a bit different yet the point for adjudication in all these three appeals being identical in nature, we have decided to dispose of these appeals by our this single judgment.
4. Brief facts of the case are as under:-- While posted as City Magistrate, Rawalpindi, he alongwith nine Police officials of different ranks joined a raiding party headed by Muhammad Aslam Lone, the then Assistant Commissioner, Saddar Rawalpindi, and successfully conducted about a dozen of raids on the dens of notorious smugglers in the city and unearthed about 42000 bags of Basmati Rice, 1200 bags of Sugar, 570 bags of Atta and 606 Tins of Vegetable Ghee worth crores of rupees, hoarded for black-marketing and smuggling to Afghanistan, on the night between 3rd and 4th July, 1973. These raids were conducted under the orders of the then President of Pakistan communicated through the Commissioner, Rawalpindi Division, Rawalpindi. After obtaining the details of the raids from the Commissioner, Rawalpindi Division, Rawalpindi, and in consultation with the Chief Secretary to the Government of the Punjab, the Federal Government in appreciation of the remarkable job done by the raiding party, decided to reward the officers on the following lines:
(i) Issuance of letters of appreciation under the signatures of the President of Pakistan to Mr. F. K.
Bandial, Commissioner, Rawalpindi, Haji Muhammad Akram, Deputy Commissioner, Rawalpindi and Ch. Sardar Muhammad, Senior Superintendent of Police, Rawalpindi.
(ii) Issuance of letters of appreciation signed by the Governor of Punjab to Mr. M.A. Lone, Assistant Commissioner, Rawalpindi, the appellant and Mehr Allah Bakhsh Sial, Deputy Superintendent of Police, City, Rawalpindi.
(iii) Giving of cash rewards equal to two years' salary to all subordinate non-gazetted officers /officials who had joined the raiding party.
In addition, the Federal Government also asked the Provincial Government to give one-step premature/out-of-turn promotion to the officers joining the raiding party.
Decisions regarding No. (i) and (iii) were duly implemented. However, as regards No. (ii) above, besides being given a letter of appreciation, Mehr Allah Bakhsh Sial, D. S. P. City, Rawalpindi, was promoted as Superintendent of Police, Raja Zahoor Ahmad, Sub Inspector was promoted as Inspector of Police and seven non-gazetted police officials were promoted to the next higher ranks, but M. A. Lone, Assistant Commissioner and the appellants were given only letters of appreciation signed by the Government of Punjab. The matter was taken up by the Federal Government with the Provincial Government for giving one step promotion to M. A. Lone and the appellant, as had been done in the case of other officers and ultimately in pursuance of the directive of the Federal Government, M. A. Lone, Assistant Commissioner at the relevant time, and the appellant was also given one step premature/out-- of-turn promotion to Grade-18 (DC/DS), vide Punjab Government Notification No. C.I.2-2/74, dated 27-12-1974. It will be useful to mention here that M.A. Lone was already enjoying Grade-18 (A.C/A.D.C). Eversince the said promotion the appellant has all along been holding jobs in Grade-18 (DC/DS), like Administrator, Municipal Committee, Faisalabad, Multan and Rawalpindi, A.D.C.(G), Faisalabad and Vehari, Director Local Government, Rawalpindi, Deputy Commissioner, Gilgit and at present posted as Additional Commissioner (Cons.), Rawalpindi. However, on 15-1b-1977, the Government of Punjab issued notification No. C.I.2-2/77, dated 11-10-1977, cancelling premature/out-of-turn promotion of this appellant from Grade-18 (DC/DS). The appellant made a representation against the same in October, 1977, which was accepted and Government restored his promotion and seniority in Grade-18 (DC/DS). Thereafter, the appellant held senior appointments as Additional Deputy Commissioner (General), Faisalabad, Director, Local Government, Rawalpindi, Deputy Commissioner, Gilgit, and is now holding the assignment of Additional Commissioner (Consolidation), Rawalpindi. On 25-9-1982, a provisional seniority/ gradation list of officers of former P.C.S. (Executive) in Grades 18 to 20 corrected upto 31st August, 1982, was issued and through this seniority list, the seniority of the appellant was upset.
Although in the earlier seniority list M. A. Lone was shown at serial No. 33 and appellant at No. 34, but in the impugned seniority list/Gradation list M.A. Lone has been shown at No. 63 and appellant at No. 78, with a further observation that appellant shall continue to be relegated in seniority till his batch-mates get promotion. This apparently has occurred on the decision, dated 18-3-1980, of the Provincial Selection Board. Aggrieved against the aforesaid refixation of seniority of the appellant through the impugned seniority list, the appellant submitted a representation on 10-10-1982, to the Provincial Government through the Commissioner, Rawalpindi Division, Rawalpindi. This representation remained pending for a pretty long time and ultimately a reminder was sent on 17- 7-1984, to the Provincial Government which has now rejected the said representation and this has been communicated to the appellant by the Under Secretary (S-1), Government of the Punjab, Services, General Administration and Information Department by his letter, dated 23-9-1984, which was received by him on 26-9-1984. The appellant applied to the Chief Secretary, Government of the Punjab, for the supply of certified copy of the order of Government showing reasons for the rejection of his representation but the Government has refused to supply the same. Hence this appeal.
On the night between 3rd and 4th of July, 1973, the appellant headed a raiding party while he was posted as Assistant Commissioner, Rawalpindi, comprising Muhammad Ashraf Bhatti, City Magistrate, Rawalpindi, Mehr Allah Bakhsh Sial, D.S.P. City, Rawalpindi, Raja Zahoor Ahmad, Sub Inspector of Police, six other Police officials of different ranks and Summary Clerk of the appellant and successfully conducted about a dozen of raids on the dens of notorious smugglers in the city and unearthed about 42000 bags of Basmati Rice, 1200 bags of Sugar, 570 bags of Atta and 606 Tins of Vegetable Ghee worth crores of rupees. As stated earlier in the case of Muhammad Ashraf Bhatti under the instructions of the then President of Pakistan communicated through the Commissioner, Rawalpindi Division, Rawalpindi, these raids were conducted. Similarly, in this case also as stated in the case of Muhammad Ashraf Bhatti, the Federal Government in consultation with the Chief Secretary, Government of the Punjab, decided to reward the officers on the following lines: --
(i) Issuance of letters of appreciation under the signatures of the President of Pakistan to Mr. F. K.
Bandial, Commissioner, Rawalpindi, Haji Muhammad Akram, Deputy Commissioner, Rawalpindi and Ch. Sardar Muhammad, Senior Superintendent of Police, Rawalpindi.
(ii) Issuance of letters of appreciation signed by the Government of Punjab to the appellant, Muhammad Ashraf Bhatti, City Magistrate, Rawalpindi and Mehr Allah Bakhsh Sial, Deputy Superintendent of Police, City, Rawalpindi.
(iii) Giving of cash rewards equal to two years' salary to all subordinate non-gazetted officers /officials who had joined the raiding party.
In addition, the Federal Government also asked the Provincial Government to give one-step premature/out-of-turn promotion to the officers joining the raiding party. Decision regarding No. (i) and (iii) were duly implemented as decided. However, as regards No. (ii), besides being given a letter of appreciation, Mehr Allah Bakhsh Sial, D.S.P. City, Rawalpindi, was promoted as Superintendent of Police, Raja .Zahoor Ahmad, Sub Inspector was promoted as Inspector of Police and seven non-gazetted police officials were promoted to the next higher ranks but the appellant and Raja Muhammad Ashraf Bhatti were 'given only appreciation letters signed by the Governor of the Punjab.
The matter was taken up by the Federal Government with the Provincial Government for giving one step promotion to the appellant as well as to Muhammad Ashraf Bhatti and ultimately the appellant and said Muhammad Ashraf Bhatti were given one step/out-of-turn promotion in Grade-18 (DC/DS), vide Punjab Government Notification No. C.I. 2-2/74, dated 7-12-1974. The appellant was also enjoying the Grade-18 (AC/ADC(G), at the relevant time. Eversince the said promotion the appellant has all along been holding jobs in Grade-18 (DC/DS) like, Director, Punjab Employees Social Security Institution, Gujranwala, Additional Deputy Commissioner (General), Lahore, Deputy Commissioner, Muzaffargarh, Deputy Commissioner, Multan, Additional Commissioner (Cons.), Sargodha Division, Deputy Secretary, Agriculture Department, Deputy Secretary, Local Government Department, Deputy Secretary, Labour Department, Vice- Commissioner, Punjab Employees Social Security Institution, Lahore, and at present holding the assignment of Secretary (Cons. And Settlement) in the Board of Revenue, Lahore. Since the date of out-of-turn promotion of the appellant, three Seniority /Gradation Lists were published and circulated by the Government of Punjab, the first on 31-12-1976, showing the appellant as Deputy Commissioner, Muzaffargarh, second on the 13th of July, 1978, indicating the name of the appellant at No. 70 after Syed Fgzal Hussain Shah of 1963 batch and the third in late 1980 mentioning the appellant at serial No. 119 below Syed Fazal Hussain Shah, an officer of Grade-18 (D.C./D.S.) of 1963 batch. While issuing the second of these Notifications in 1978, the Provincial Government, by means of its letter, dated 13th of July, 1978 had invited objections by the 15th of August, 1978, but no objections were filed by any officer, the seniority and out of turn promotion of the appellant, was maintained even in the subsequent seniority/ gradation list issued in late 1980. However, on 15-10- 1977 the Government of Punjab issued a Notification No. C.I.2-2/77, dated 11-10-1977, cancelling the premature/out-of-turn promotion from Grade-18(DC/DS). The appellant submitted representation again and again to Government, Martial Law Administrator/ Governor of Punjab, who was pleased to accept tae representation of the appellant and restored his promotion and seniority of Grade-18 (DS/DC Grade) retrospectively. Copy of this Notification, dated 14-1-1978, is appended with the appeal as Annexure ',1'. However, the Provincial Government on 25-9-1982, published a provisional seniority/ gradation list of officers of the former- P.C.S. (Executive Branch) in Grade-18 to 20 corrected upto 31st of August, 1982, by which the seniority position of the appellant was completely upset. In the immediately pre-existing seniority list the appellant had been shown at No. 33 while Muhammad Ashraf Bhatti had been shown at No. 34, but in the aforesaid impugned provisional seniority/ Gradation list while the appellant has been shown at No. 63, Muhammad Ashraf Bhatti has been mentioned at No. 78, with the further observation that Muhammad Ashraf Bhatti shall continue to be relegated in seniority till his batch-mates get promotion. The appellant submitted representation to the Provincial Government through proper channel. After about two years the Under-Secretary (Services I), to the Government of Punjab, Services, General Administration and Information Department, Lahore, informed the appellant, vide letter, dated 14-10-1984, about the rejection of his representation. The appellant also applied to the Chief Secretary, Government of the Punjab, Lahore, for supplying a certified copy of the order of Government containing reasons of rejection of his representation, but Government showed its inability to supply copy of the same.
Hence this appeal.
The appellant joined service as Tehsildar in 1965, and was promoted to P. C. S. (Grade-17) after clearing his departmental examination in 1972. The appellant was posted primarily on revenue assignments. The appellant was in a position to earn very good chits from his superiors and was granted commendation certificates and Sanads from time to time. In view of the recommendations made earlier for appellant's accelerated promotion by his Deputy Commissioner, Commissioner and the Revenue Minister concerned, the appellant's case was short listed for consideration of the Provincial Selection Board alongwith others. The appellant appeared before the Provincial Selection Board, on 8-2-1972. The Provincial Selection Board found the appellant fit for out-of-turn promotion for Grade-18 (DC/DS) Grade, and as such his promotion was duly notified, vide Notification, dated 8-2-1977. In consequence thereof the appellant was appointed as Settlement Officer, Layyah, on 30-3-1977, which was Grade-18 (DC/DS) post.
"However, while notifying the appellant for this post, an anomaly was created by introducing to mention as under: -- "Shamsher Ali Khan, Colony Assistant, Sargodha, is transferred and posted as Settlement Officer, Layyah in his own pay and grade in N.P.S.-18."
The appellant made a representation to the Government of Punjab alleging therein that he had been awarded Grade-18 (DS/DC) as such he should not be treated in lower grade. The representation of the appellant was accepted and earlier Notification, dated 30-3-1977, was withdrawn and substituted by a Notification of even number and date, whereby the appellant was ordered to be posted as Settlement Officer, Layyah, without the rider clause of being placed in the lower grade. i.e.Grade-18 (AC/ADC). He was appointed /posted as Deputy Commissioner, Bahawalpur, vide Notification, dated 14-5-1977. In August, 1977, the appellant was again transferred to the post of Settlement Officer, Layyah, which was equivalent to the post of Deputy Commissioner/ Deputy Secretary. However, the case of the appellant became under review according to M. L.I-21, which came into force, on 8-8-1978, and resulted into Notification cancelling the Notification, dated 18-2-1977, whereby the appellant had been promoted in Grade-18 (DC/DS) and reverted back to Grade-17. The appellant made a representation to Government of Punjab, against the said treatment so meted out to him and prayed that Notification, dated 18-2-1977, be withdrawn and he be promoted to Grade-18 (DC/DS). This resulted in acceptance of the prayer --- the appellant and his Grade was restored to him alongwith Messrs M'. A. Lone, Muhammad Ashraf Bhatti and Mian Wahid-ud-Din. It will be useful to mention at this stage that while, in pursuance of Notification, dated 14-1-1978, Messrs Muhammad Aslam Lone, Muhammad Ashraf Bhatti and Mian Waheed-ud-Din, were given Grade-18 (DS/DC), whereas the appellant was posted as Additional Deputy Commissioner (Cons.), Sheikhupura, which is Grade-18 (AC/ADC) post. The appellant made a representation and also filed writ petition in the High Court, vide No. 2132/78. However, pending the writ petition, the appellant was restored to the assignment equivalent to which he had been in Grade-18, and was posted as Additional Commissioner (Cons.) Sargodha, the appellant, therefore, withdrew his representation, as his grievance stood redressed. When the appellant made a request for settling seniority in Grade-18, w.e.f. The date of his having accepted the post as Settlement Officer, Layyah and Deputy Commissioner, Bahawalpur, from 2-4-1977. The Government put an embargo in his name in the seniority list as under: "shall continue to be relegated in sleniority till their batch-mates get promotion."
Instead of placing his name at serial No. 34, his name was placed at -serial No. 79 with a rider indicated above, in the seniority list of officers of Executive Branch (of Grade 18-20), dated 31-8- 1982. The appellant represented against the aforesaid rider clause attached to his seniority and also against his relegation to serial No. 79 instead of placing him at serial No. 34, but the same was summarily rejected and rejection order was conveyed to the appellant, on 4-10-1984. Hence this appeal.
5. We have heard the learned counsel for the appellants as well as learned District Attorney on behalf of the Government and learned counsel for the contesting respondents and have perused the record of this case and written statements filed by the contesting respondents, minutely with their assistance.
6. Learned Counsel for appellants Muhammad Ashraf Bhatti and M.A. Lone, has submitted that the history of their cases so given above would make it crystal clear that while certain actions were taken by the respondent Government to upset their out-of-turn promotion but by withdrawing the said order and restoring the original orders in 1978, would above that the Provincial Government accepted that they were not in a position to withdraw such promotions, which had taken effect under the principle of locus poenitentiae and animus revertendi, therefore, the present action of the Government by issuing a provisional seniority/ gradation list, dated 25-9-1982, and assigning the appellants at No. 78 instead of 34 and No. 63 instead of 33, in the said list of Grade-18 (DC/DS)
Grade, was an action for which they had no jurisdiction as well as authority under the principle of locus poenitentiae recognized by section 21 of the General Clauses Act, 1897, and section 20 of the West Pakistan General Clauses Act, 1956. Learned Counsel for the appellants has further relied on the anology of out-of-turn promotion, made in favour of certain Police Officers, who had also joined the appellants in the said raids. According to the learned counsel those officers/ officials still enjoy their promotion and no interference of any sort has been done by the Government in their case. It has been further argued that since the award of one step premature/out-of-turn promotion to the appellants, three seniority lists were published and circulated by the Provincial Government. In all these seniority lists, the appellants were show senior and objections were invited from the officers concerned, but no such objections were filed and seniority of the appellants was maintained in the subsequent seniority list issued in the year 1980. This seniority list was never challenged by the respondents (colleagues of the appellants) and thus has attained finality one for all.
7. Learned Counsel for the appellants has further emphasized that the concept of out-of-turn promotion was always there and the promotions of the appellants was thoroughly scrutinized both by the Provincial as well as Federal Government and it was after quite a detailed correspondence between the Federal Government as well as Provincial Government, that the Government of the Punjab passed orders in favour of the appellants and others. He vehemently argued that Government did possess the statutory and inherent powers to award such promotions to the officers having meritorious service record, specially to able officers. The said authority of the Government in making out-of-turn promotion to able officers, could also be spelled out from the Character Roll wherein specific column has been provided for the purpose. This would also show that the Provincial Government enjoy the inherent powers to do so. Learned counsel for the appellants has also elaborated his point by submitting that even the Constitution of 1973, pronounce the concept of out-of-turn promotion and the Provincial Government has to obey such directions provided in the statute. According to him, in both the cases of these appellants, a positive direction was given to the Provincial Government which was complied with by it. Learned Counsel for the appellants further pointed out that there was nothing in the Service laws including the Punjab Civil Servants Act, 197`4, and the Rules framed thereunder, authorising the Provincial Government to upset the original order of one step premature/out-of-turn promotion of the appellants and disturb their seniority after a lapse of more than 8 years.
8. With regard to the behaviour of the respondents in not challenging the appellants out-of-turn promotion/ seniority learned counsel for the appellants has submitted that it was fully known to the respondents, in view of the settled law that promotion was not a right of the incumbent and was only a prerogative of the Government and thus accepting this principle none of the respondents ever challenged this out-of-turn promotion or any of the seniority lists, so enjoyed by the appellants, in which they were consistently shown as senior to them.
9. Learned Counsel for the appellants has assailed the authority of the Provincial Selection Board and has submitted that it had no legal sanctity or moral justification to put a rider clause against the appellants by observing that they would enjoy the seniority till their batch-mates get promotion, particularly when their promotions have been so maintained. He has relied on the precedents in case of Mr. A.
K. Khalid, Raja Salim Akhtar, Mr. F.K. Bandial, Mr. S.I. Haque and Mr. Iftikhar Rashid etc. Apart from numerous Police Officers and officials of the Excise and Taxation Department, which he has not considered necessary to refer. In the end it was argued that the result of the impugned order of the Government was against the terms and conditions of appellants service regarding their seniority, therefore, they were fully justified to agitate their grievance before this Tribunal for restoration of their seniority as well as striking down the rider clause which was attached without any moral or legal justification.
10. Dr. Khalid Ranjha, learned Counsel for the appellant has submit ced that seniority in no circumstances, can be divorced from promotion. Once the appellant had been considered for promotion to a selection post on the basis of pure merit, there was no occasion to withdraw the attending seniority. It was further submitted that one an order of promotion was given effect to and acted upon, any negation of that amounts to reducing a person in rank and passing an adverse order which in either case can only be done under the Efficiency and Discipline Rules, 1975. The failure of the respondent to adopt the permitted procedure would render the rider clause so imported in the seniority list of 1982, as arbitrary as well against law and, therefore, would be of no consequence. It has been further argued that such order militates against the principle of Locus Poenitentiae. Learned Counsel for the appellant has pointed out that the order passed imposing an embargo on the seniority has still not been notified although the appellant continues to be effected by the same. He has expressed surprise that the order without being notified is being implemented without any backing of law or rules. According to the learned counsel for the appellant, the appellant was selected against a selection post, by dint of his performance in service, therefore, the day, 'he was promoted, he auto---`_:_ally joined the upper cadre and takes seniority from the date of assumption of charge in that post. According to him the appellant was entitled to seniority in Grade-18 from the date of assumption in that grade i.e. 2-4-1977. With those additional arguments the learned counsel for the appellant has adopted the arguments so advanced by the learned counsel for the appellants Muhammad Ashraf Bhatti and M.A. Lone, co- appellants in this case.
11. On the other hand learned counsel for the respondents Mr. Masud Ahmad Riaz, Advocate, has submitted that the appeals of the appellants were not competent because impugned seniority list was Provisional and not a final Seniority List, therefore, the appellant's appeals were in clear violation of section 4 of the Punjab Service Tribunals Act, 1974. For this he has relied on PLD 1981 SC
612. It has been further argued that appellant Rao Shamsher Ali Khan has failed to implead those Grade-17 E.A.Cs who are senior to him as per Seniority List of E. A.Cs at Annexure R/1 with the written statement. Out of those, a large number have also been promoted to Grade-18. According to him the appeal of the appellant would also be incompetent in this manner.
12. With regard to the merits of the case, it has been submitted that the promotion of the appellants was not in prescribed manner as the same were not made in consultation with the Provincial Selection Board. However, he has conceded that the case of Rao Shamsher Ali Khan was processed by the Provincial Selection Board, but has submitted that the case of Muhammad Ashraf Bhatti and M.A. Lone, did not fulfil this legal obligation. While conceding that the case of Rao Shamsher Ali Khan was processed by the Provincial Selection Board, he has still submitted that even if it was so, still it did not fulfil the conditions laid down under Rule 14 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974.
13. With regard to the imposition of rider clause, it was submitted that it was a settled law that the Government can correct its mistakes and undo the wrong orders of promotions if these have been made in disregard of the relevant rules. He has also challenged the stand of the appellants that Provincial/ Federal Government was within its powers to make accelerated promotions as the same was repugnant to the statutory rules i.e. Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. In the end it has been argued that the appellants, in no circumstances, can be awarded accelerated promotion, as it was incumbent upon the Government to consider the contesting respondents (colleagues) alongwith them before such action could be taken in their favour. According to him, out-of-turn promotion was not envisaged under any rule or law and thus the promotions so bestowed upon the appellants were without any backing of rules or law in this case.
14. We have given our anxious thought to the arguments advanced by the parties and find that the crucial points to be determined in these cases are as under:--
(a) Whether there is any concept of accelerated promotion in the service of the appellants?
(b) If the answer to (a) is in positive, whether Government was under obligation to consider the case of remaining colleagues of the appellants alongwith them for awarding such accelerated promotion?
(c) Whether the accelerated promotions awarded to the appellants would be considered a promotion in the manner so prescribed?
(d) Whether the appeals of the appellants are liable to be rejected as these have not been filed against final seniority fist?
(e)Was it incumbent upon appellant Rao Shamsher Ali Khan to implead his batch-mates of lower grade as necessary parties, when he himself had crossed over higher Grade-18?
(f) Can the Government one it confers promotion upon the appellants in accelerated manner, maintain the promotions and relegate them in seniority, by introducing s rider in the seniority list of 1982 on the direction of the Provincial Selection Board?
15 With regard to issue at (a), whether any concept of accelerated promotion in service of the appellants, is available or not, we find that the Government, respondent in this case, has nowhere taken a stand that such conception was not available in the service of the appellants, as in their written statement this point has not be6n denied. However, the other respondents in this case have come forward with this objection, wherein, they have vehemently argued that nowhere, such like concept is provided and, therefore, the accelerated promotions so given to the appellants by the Government were illegal. We have carefully taken E note of this argument and repel the same on the following grounds:
(i) The said promotions were initiated by the Provincial Government under the direction of the Federal Government and we have no hesitation to hold that Federal Government can give directions to the, Provincial Government via-a-via taking into consideration of such like matters.
Moreover, what we find is that the concept of out-of-turn promotion is completely spelled out from the printed form of A.C.R. Of the Officers /officials. A special column has been provided in the Form, whether officer is fit for out-of-turn promotion or not. This would clearly show that the Government has the inherent powers to do so.
(ii) Annexure 'C' appended with the appeal of M.A. Lone is a letter addressed- to the Chief Secretary to the Government of the Punjab, Lahore, by the Deputy Secretary to the Government of Pakistan, and its subject is grant of Rewards/ Promotions to officials responsible for conducting the haul of foodstuffs in Rawalpindi, in which it has been observed as under:-- "Further all the seven non-gazetted police officials are in the process of being promoted in addition to the cash award accorded to them. Messrs M.A. Lone and Muhammad Ashraf Bhatti have received only letters of appreciation from the Governor of the Punjab, it is felt that they also deserve treatment similar to that meted out to Mr. Mehr Allah Bakhsh Sial. The cases of these officials for promotion to next higher ranks may, therefore, be considered in consultation with the Commissioner, Rawalpindi Division under whose aegis the haul in question was conducted. The action taken may be intimated to this Division in due course."
It was in view of this letter that Annexure 'D' came into existence by which Mr. F.K. Bandial, Chief Secretary at the relevant time, notified the promotion of M.A. Lone and Muhammad Ashraf Bhatti, in Grade-18, vide Notification, dated 27-12-1974. The services of the said M. A. Lone were placed at the disposal of Punjab Employees Social Security Institution for appointment as Director, Social Security Institution at Gujranwala, whereas Muhammad Ashraf Bhatti was transferred and posted as Administrator, Multan Municipality, vice Syed Fazai Hussain transferred. In fact the administrative reforms introduced by the then Prime Minister of Pakistan authorised the Government in the country to award out-of-turn pre-mature promotions to exceptionally able officers. The following paragraph of the said letter (Annexure '0') would be important:-- "(d) The unified structure would be designed to provide for entitlement to promotions to the higher posts throughout the range of public service for horizontal movement from one cadre to another including the movement of technical personnel to the cadre of general management carrying posts of an executive nature; there would also be scope for out-of-turn promotion to the exceptionally meritorious officers".
It will be useful to mention here that after these officers were so out-of-turn promoted, at one time the matter was taken under M. L. I. 21 by the Government and their said promotions were cancelled.
Later on, on representations of these appellants the said cancelled notification was revived and they were restored their promotions as these were. The Government was forced to do so both on the principle of locus poenitentiae, as no law of the land including any rules on the service matter, authorises a Government to effect any modification in the orders passed by the previous competent Government on regular and permanent basis. If such a thing is permitted, it will create a chaos and public servants will not be able to enjoy the security of their services and it will affect the efficient performance of official functions by public servants. In the light of the above analysis, the answer to (a) would be in affirmative and we hold that there was and is positively a concept of accelerated promotion in the service of the appellants.
16. With regard to issue at (b) whether the Government is under obligation to consider the case of remaining colleagues of the appellants alongwith them for awarding the said out-of-turn.
Promotion, it would be sufficient to say that such like exercise cannot be applicable in the case of accelerated promotion. It is only when a normal promotion falls due to a particular civil servant his case is considered alongwith other colleagues and if he is so promoted and others are left behind, it is stated that the officer has superseded his batch-mates. In the present case of the appellants nothing of this sort could happen as they were picked up for accelerated promotion on the strength of their outstanding performance as explained above. It would be necessary to mention at this stage that case of Rao Shamsher Ali Khan would be on a bit different pedestal because what we find is that although M.A. Lone and Raja Muhammad Ashraf Bhatti, were conferred accelerated promotions by the Government, which was ultimately maintained by it, Rao Shamsher C Ali Khan's case also stood the scrutiny of the Provincial Selection Board as he was firstly recommended in a very strong terms by a large number of officers for his outstanding performance through a number of annexure on record and his case was also taken up by the Provincial Selection Board and he was cleared from the same. We have referred this fact to put the record straight otherwise we are of the considered opinion that all these promotions were equally good in the sense that the same were made by the competent authority and were acted upon meticulously. All the three Seniority Lists published and circulated by the Provincial Government earlier to the impugned seniority list, these appellants have been shown senior and none of the respondents came forward to challenge their promotions or seniority in any judicial or quasi-judicial forum recognized by law. It means that they had no grievance against the same and now cannot be allowed to raise these objections at this belated stage, after a lapse of eight years.
17. With regard to issue at (c) whether accelerated promotion would be considered a promotion in the manner so prescribed, we have no doubt in our mind that the same are promotions in the prescribed manner. Once we have held that there- was a concept of accelerated D promotion in the service and appellant's promotions were made accordingly by the competent authority particularly when the same came under scrutiny of the Government at different times and stood the test of the same.
18. Regarding issue at (d) whether the appeals of the appellants are liable to be rejected as these have not been filed against final seniority list, it will be again necessary to point out that the respondent Government has not taken any objection of this sort whereas this objection has been only raised by the contesting respondents through their learned counsel. It would be interesting to note that both the parties have relied on PLD 1981 SC 612. According to the contention of the learned counsel for the respondents their lordships of the Supreme Court of Pakistan held as under:-- "As there was no final order nor the seniority list was final, his appeal was not competent before the Service Tribunal. ".
Whereas, the learned counsel for the appellants have submitted that in the said case, a tentative seniority list was published by the Provincial Government who invited objection and one of the officers also filed objections against the tentative seniority list, filed appeal before the Service Tribunal, therefore, the said order was passed by their Lordships of the Supreme Court of Pakistan.
According to the learned counsel for the appellant in the present case the appellants did file representations against the said tentative seniority list of 1982 and were duly considered and rejected by the competent authority. It has been argued that their Lordships of the Supreme Court of Pakistan has defined the 'Final Order' as under in the said Ruling so quoted above:-- "The order may be final if it determines the rights of the parties, concludes the controversy so far as a particular authority or forum is concern, notwithstanding a fact that such an order may be open to challenge in appeal, etc."
We have taken into consideration the argument on this point advanced by the parties and are of the considered opinion that the stand of the appellants is fully justified as Government cannot be allowed to withhold a final seniority list/Gradation List and be permitted to keep on issuing List, after List spreading over a number of years and still calling it as tentative seniority list. A similar matter came before the Federal Service Tribunal in Syed Ali Muqtada Wahidi v. The Secretary, Establishment Division and others reported as 1984 PLC-(C S) 546, wherein it was observed as under:- "The other important issue is that of seniority lists under section 8 of Civil Servants Act, 1973. We can say With authority that this also needs a serious attention. Every list is marked "provisional" for one reason or the other in utter violation of the rules which lay that only the first seniority list is to be provisional and every other list final. The issuance of seniority lists has no systematic periodicity.
The last final list of Secretariat Group was issued on 14th June, 1976. Thereafter, the Establishment Division went into hibernation for over five years and came out with seniority list in mid 1981 and thereafter. These lists contained such gross errors and alterations that they would keep the civil servants in a state of endless litigation all at the cost of the administration for which the civil servants are primarily meant".
In the present cases we also find that no list termed as final has been issued by the Department so far in the last 10 years. In view of the above, we are of the considered opinion that as the appellants filed objections against the impugned seniority list and the same were determined, therefore, the verdict of the Supreme Court of Pakistan will be fully applicable in their case as rights of the parties were determined and controversy was concluded in so far as they were concerned. The authority PLD 1981 SC 612 is favourable to the case of the appellants and in no way supports the contention of the learned counsel for the respondents that if one a list is termed as tentative the same will remain as it is, till eternity.
19. With regard to issue at (e) as to whether Rao Shamsher Ali Khan was under obligation to implead his batch-mates of lower grades as necessary parties, one he has crossed over to higher grade or not, we find that at the time of filing of appeal the name of the appellant has not been shown in the seniority list of 17 and 18 Grades of Officers/Magistrates/Assistant Commissioners/Additional Deputy Commissioners, issued by the Provincial Wing which separately prepared from the seniority list of 18 grade officers, Deputy Commissioner/ Deputy Secretaries and other higher grade officers issued by the Central Wing. The name of the appellant has been shown in the seniority list of 18 grade officers (DC/DS) and other higher grade officers, and according to this seniority list the appellant has properly impleaded officers from serial No. 34 to 78 as party. We further find that the word used in the relegation clause. Is Batch-mates. If we take into consideration, the appellant who entered into the service as Tehsildar with others would be called upon to implead those persons also in this case who are still in the same position due to their checkered record of service, a proposition absolutely preposterous. The other category of batch- mates when the appellant was promoted, would be Magistrates in P.C.S. Cadre and it would be hardly proper to call upon him to implead the said category as he no longer belongs to that category due to the fact that the name of the appellant has not been shown in the Magistrates/ Assistant Commissioners list. As the name of the appellant is only reflected in the list of Deputy Commissioners/ Deputy Secretaries, therefore, he has rightly impleaded Messrs Sh. Said lqbal Shami and 44 others, as necessary parties from the said category. The case of Ch. Muhammad Iqbal cited by the learned counsel for the respondents in support of their case, is hardly applicable.
In the aforesaid case, the Punjab Service Tribunal directed the appellant to implead necessary party but in spite of the directions of the Service Tribunal, the appellant did not implead the relevant officers as party and the Punjab Service Tribunal dismissed the appeal. This order was upheld by their Lordships of the Supreme Court of Pakistan, but in the case of the appellant, he has properly impleaded party from Sr. No. 34 to 78 from whom tile appellant claims seniority on the basis of assumption of charge according to law. If the name of the appellant would have been shown in the seniority list of Magistrates/ Assistant Commissioners/ Additional Deputy Commissioners then the appellant would have impleaded all the officers which are placed above the name of the appellant.
20. Now we come to the most important issue in this case which is issue at (f) which is 'whether the Government one it confers promotions to the appellants in accelerated manner maintain the promotions and relegate them in seniority, by introducing a rider in the seniority list of 1982, on the direction of Provincial Selection Board. While examining this issue, we find that the Government respondent in these cases, has nowhere seriously challenged the accelerated promotions of the appellants which remained in the field so- far, as if they had any serious objection to the same, it could have declared it as null and void RA they had done one upon a time but were forced to rescind the same. Therefore, it would be safe to assume that the Government has taken no positive objection to the accelerated promotions in favour of the appellants. This being so we have no hesitation to hold that seniority in no circumstances, can be divorced from promotion. Once the appellant had been considered for promotion on the basis of outstanding merits, there was no occasion to withdraw seniority. There would be scores of examples in Police and other Departments where civil servants were promoted for outstanding work and bravery by accelerated promotion to the higher grades but none of them was ever told in the end, that although he would be SP/DSP but he would be enjoying the seniority of Sub Inspector from where he was one picked up for outstanding merits of bravery. Similarly, it would be fantastic to assume that one a person has been bestowed with a higher rank in the Army due to accelerated promotion on account of outstanding merits while he would be working as General, but would be asked to retain seniority alongwith the Soldiers from whom he rose to the highest rank. If we allow a rider in the seniority list to be maintained at the instance of the Provincial Selection Board that the appellants would retain their promotions and would be allowed to work as Additional Commissioners/ Deputy Commissioners but will retain seniority with their batch-mates who were still working as E. A . Cs.
And Assistant Commissioners, this will be very negation of the promotion which has been conferred upon them eight years back. It was also highly unjust as the same riders was against the principle of locus poenitentiae. If they had to be relegated for common reasons i.e. For their acts of omission and commissions, they can only be relegated in the seniority as a matter of punishment by following procedure laid down under the Punjab Civil Servants (E & D) Rules, 1975. The decision of the Provincial Selection Board in this matter cannot be allowed to prevail to the detriment of the terms and conditions of service of the appellants because seniority is one of the terms and conditions of service, which in this case has been hit and has given genuine cause of grievance to the appellants to seek their redress before this Tribunal. By no logic or reason we can allow the argument of the respondents to prevail upon us that let the appellants remain promoted as Additional Commissioner/ Deputy Commissioner, but they should be considered in Seniority equal with their batch-mates, who are still working as B.A. Cs. /Assistant Commissioners, on much lower pedestal than the appellants. We are fortified in our this view that one a person is promoted to a higher H grade, he will gain seniority from the date his colleague has joined him in the said grade.
21. In view of the above detailed analysis of the case, we proceed to accept these appeals, set aside the impugned seniority/ Gradation List as well as rider clause so attached with them, and direct the respondent Government to place them at the proper place according to their induction in Grade-18 (DC/DS) Grade. However, there will be no order as to costs. Judgment be communicated to the parties.