1. MUNAWAR ALI KHAN (CHAIRMAN).--Three Appeals Nos.62, 63 and 64 of 1984 respectively filed by Haider Abbas Rizvi, Ali Akhtar Khan Ghori and Mubarak Hussain are being disposed by this common judgment, as they have arisen from series of same orders and notifications. Briefly stated the facts leading to these appeals are as follows. All the three appellants were Government High School Teachers in G-16 when they were transferred and posted as Headmasters in other schools in their own pay and grade. Appellant Haider Abbas Rizvi was transferred from Government Boys Secondary School Drigh Colony, Karachi and posted in Government Boys Secondary School Korangi Creek, Karachi vide order of Director of School Education, Karachi Region, dated 5-9-1981.
2. Likewise other two appellants were transferred from Government Boys Secondary Schools and posted in Government Boys- Secondary School Korangi, Karachi the same order, dated 1-9-1981 issued from the Directorate of School Education, Karachi Region. Subsequently by Government Notification No.S.O.(E-IV) Prom 6/80, dated 1st February, 1982, they were promoted as Headmasters in Grade-17 in pursuance of the recommendations of the Departmental Promotion Committee and with approval of the competent authority. The Government Notification as aforesaid was followed by the order of Director, School Education, Karachi Region issued on 3-2-1982 which further confirmed the fact of the appellant's promotion as Headmasters. Three days later, the Government issued notification on 4-2-1982 by which all the promotions to Grade-17 including the promotion of the appellants notified by Government's order, dated 1-2-1982 were held in abeyance. By another notification, dated 16th February, 1982, the promotions of seven teachers including the three appellants were cancelled, although the other promotions made by same notification, dated 1-2- 1982 were restored. The restoration of the said promotion was further affirmed in the order of Director of School Education, Karachi Region, dated 21-2-1982. Despite the cancellation of their promotions as Headmasters, the appellants continued to serve in that capacity until the impugned notification, dated 12th March, 1984 was issued, by which once again the promotion of the appellants as Headmasters was notified. This time also their promotion was made on recommendations of the Departmental Promotion Committee. As the earlier promotion of the appellants made in 1982 was not restored by the notification of 12th March, 1984 and instead they were promoted from the date of the said notification, they felt aggrieved and preferred departmental appeal against the same. After waiting for 90 days for the decision of their departmental appeal, they filed aforementioned appeals before this Tribunal. Their prayer is that their promotion as Headmasters be ordered w.e.f. 1-2-1982 when they were first promoted.
3. We heard the learned counsel for the parties elaborately and also went through the written material available on record.
4. Before going into merits of the appeals, we would like to deal with the objections raised by the learned Assistant Advocate-General. They are as under:
(1) Promotion not being a vested right, the relief claimed by the appellants is barred by proviso to section 23 of the Sind Civil Servants Act, 1973, hereinafter referred to as the said Act.
(2) The appeals are hit by section 4 of the Sind Service Tribunals Act, 1973.
(3) The order of cancellation of the appellants' promotions having been passed on 16-2-1982, their appeals are not only barred by limitation bur also are not legally maintainable.
5. Taking up the first objection that relief claimed by the appellants is hit by proviso to section 23 of the said Act, it may be useful to reproduce the said proviso. It is reproduced as under: "Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade".
6. There is no dispute about the proposition that promotion cannot be claimed as a matter of right.
7. This has been reiterated by superior under consideration does not relate to appellants' right or fitness for promotion. As stated earlier their prayer is that their promotion should be reckoned from 1-2-1982 and not from the date of subsequent notification, namely 12th March, 1984. It would appear that the appellants were first promoted on 1-2-1982 on recommendations of the Departmental Promotion Committee, which clearly shows that they were found fit for the promotion. Somehow their said promotion was first held in abeyance and was ultimately cancelled. Instead of restoration of their cancelled promotion, they were promoted afresh after about two years. Even for the later promotion they were cleared by the Departmental Promotion Committee, showing their fitness for the promotion. Thus, they were found fit for promotion on both occasions. Accordingly their fitness for promotion is not involved in the appeals. Similarly their right to promotion is also not disputed. They are to be promoted either from 1-2-1982 or from 12-3-1984.
8. What is precisely the issue to be decided by us is whether cancellation of their earlier promotion was justified. Therefore, the learned Assistant Advocate---General's first objection has no force.
9. The other two objections of the learned Assistant Advocate---General are obviously overlapping and as such they are discussed together. When we speak of the appeals being hit by section 4 of Sind Service Tribunals Act, 1973, we first think of clause (b) of the proviso to the above section.
10. According to this clause no appeal shall lie against an order or a decision of a departmental authority regarding fitness of a civil servant for promotion while discussing the first objection we have already held that in the present appeal the question of fitness for promotion is not involved, Accordingly the above proviso is not applicable to this case.
11. However as provided in section 4 ibid, a civil servant aggrieved by any final order, whether original or appellate relating to terms and conditions of his service is required to file appeal before the Service Tribunal within thirty days of the communication of such order to him. First of all we have to see which order had actually aggrieved the appellants. Although the appellants' own contention is that it was the impugned order passed on 12-3-1984 which had given cause of action to them, yet the learned A.A.-G., was of the view that they were affected by the order of cancellation of their earlier promotion passed on 16-3-1982. We have given our best thought to these two conflicting views. We go alongwith the thinking of the learned A.A. -G., that as soon as their earlier promotion was cancelled, they obviously got aggrieved by the cancellation particularly when no reason was assigned for such action. However, they remained quiet and did not take any step to agitate against the cancellation of their promotion. The learned counsel for the appellants submitted that since the promotions of some of the appellants' colleagues were restored, they hoped that their promotions too would be restored. He further argued that this hope was strengthened by the fact that they were allowed to continue as Headmasters despite the cancellation of their promotions.
12. As for his first argument, the learned counsel was unable to show any case of the appellants' colleagues in which any cancelled promotion had been restored. It is true that before cancellation of the appellants' earlier promotions, their promotions alongwith promotions of some of their colleagues were kept in abeyance. Subsequently excepting the promotions of the appellants which were cancelled the other promotions were restored. In the case of the appellant's colleagues abeyance order was withdrawn and not that any of their cancelled promotion was restored.
13. As regards the other argument that despite the cancellation of their promotions they were allowed to continue as Headmaster, it may be pointed that it is an admitted position that prior to their earlier promotion notified in 1982, they were transferred and posted as Headmasters in their own pay and grade by separate orders. Consequently on revocation of their promotions the position ante was automatically restored. That is to say they continued as Headmasters in their own pay and grade. Therefore, merely because they, continued to work in the capacity of Headmasters even after cancellation of their promotion was no reason to entertain a hope that their cancelled promotions would automatically be restored.
14. However, the alternative argument advanced on behalf of the appellants was that the order of cancellation of their promotion was never communicated to them. Obviously the purpose of communicating such order is to give the person concerned a notice about the issuance of the order. It is a settled law that whenever any such order is published in Government Gazette, all concerned shall be presumed to have knowledge about the existence of such order. The order of cancellation of the appellants' promotion has obviously been published in the Government Gazette. Accordingly the appellants cannot deny the knowledge about the order. Even otherwise when they were not paid the emoluments of the Headmasters' post that too was sufficient notice to them particularly when the promotions of their other colleagues were restored. The cause of action accrued to the appellants when their earlier promotion was cancelled. They should have challenged that order, first in departmental appeal and then before Service Tribunal. However, they took neither of the steps but chose to accept the order quietly. In these circumstances the impugned order, of 12-3-1984 by which the appellants have, on the contrary, been promoted cannot be held to have aggrieved them. Accordingly the said order does not provide any cause of action of them.
15. The upshot of the above discussion is that for above reasons the appeals must fail. Accordingly they are dismissed with no order as to costs.
16. Before parting with the case, we are constrained to observe that although the appellants have performed the duties of higher posts for the disputed period of about two years, they have been paid the remuneration of the lower posts. Although it was not appellants' plea, we feel inclined to recommend that suitable amount be fixed as special /additional pay under first proviso to S.18 of the Sind Civil Servants Act, 1973, and they may be paid the same for the intervening period.
17. A.E./116/Sr.S