' SYED ALLY MADAD SHAH (CHAIRMAN).--Appellant Mr.Muhammad Sirjees Nagi was appointed by lateral entry as First Secretary in the Foreign Affairs Group (equivalent to the post of Deputy Secretary) in Grade-18 carrying special pay of Rs,440, with effect from 7-12-1973. His services were terminated, wider the provisions of Section 12-A of the Civil Servants Act, 1973, vide order dated 10- 7-1978, while he was holding the post of First Secretary at Darus Salam. He relinquished charge of the post on 7-8-1978. He challenged the order of his termination from service before the Lahore High Court. The case was referred to Federal Public Service Commission (hereinafter referred to as the FPSC) for review under the provisions of Rule 4 of the Federal Public Service Commission (Functions) Rules, 1978 (hereinafter mentioned as the FPSC Rules). The FPSC recommended that the appellant was fit to hold a post in Grade-19 in the Secretariat Group and such notification was issued on 23-12-1981.
' Accordingly, he was appointed as Officer on Special Duty (Grade 19) in the Establishment Division vide notification dated 7-1-1982. He claimed consequential benefits and made representation dated 11-1-183. His representation was withheld. He again approached the Lahore High Court at its Bench at Rawalpindi. The case was again referred to the FPSC for further consideration. The Establishment Division also submitted a Summary to the Prime Minister. By notification dated 4-2- 1987, the appellant was allowed seniority in the rank of Deputy Secretary (B-19) in the Secretariat Group from the date of his original appointment in equivalent post he was appointed to in the Foreign Affairs Group with effect from 7-12-1973 and was also allowed consequential benefits. The Accountant-General, Pakistan Revenues (hereinafter referred to as the AGPR) issued pay slip dated 13-5-1987 in favour of the appellant for the period he had remained out of the job. The pay slip was cancelled consequent to the letter dated 15-12-1987 addressed to the AGPR from the Establishment Division. He made representation against that decision on 2-2-1988. His representation was withheld as per intimation to him under letter dated 4-4-1988. He, therefore, filed this appeal on 28- 4-1988 to seek the following reliefs:- "(i) effecting his promotion from the dates he became eligible;
(ii) by withdrawing/cancelling the order dated 15-12-1987 by which the Salary Slip No,GA.VII/FR/AR- 125/OSD/6008, dated 13-5-1987 was cancelled;
(iii) by granting him pensioner benefits with effect from 6-12-1973 i,e, from the date of his initial appointment in Foreign Affairs Group; and
(iv) any other relief to which the appellant may be found entitled to be also granted with costs of the appeal.
2. The respondents have contested the appeal. Of course, the facts have not been disputed, rather they have been stated in almost full details. It has been stated that the appellant has been allowed seniority with effect from the date of his initial appointment viz. 7-12-1973 vide notification dated 4- 2-1987 issued in pursuance of the order of the Prime Minister dated 6-12-1986. However, the claim for monetary benefits for the period from 6-12-1978 to 8-12-1981, the appellant had remained out of the job, has been resisted in view of the order passed by the President on 31-7-1979. As regards the appellant's promotion, it has been averred that his case was referred to the Central Selection Board which deferred his promotion on two occasions, once in March, 1987 and second time on 13- 6-1988.
3. The appellant has argued the appeal himself. He has urged that despite the seniority allowed to him with effect from the date of his initial appointment viz. 7-12-1973, he has not been given due promotion. He has next urged that he was kept out of the job from 6-12-1978 to 8-12-1981 without lawful orders and his seniority has been reckoned from 7-12-1973 and there could be no obvious reason for denying him monetary benefits for that period, and he has placed reliance on a case of Mazhar Hussain Rizvi v. Government of West Pakistan reported in PLD 1973 Lah.
56. He has also urged that the period from 6-12-1978 to 8-12-1981, he was kept out of the job, may be counted for pensioner beer exits.
4. The learned counsel for the respondent has contended that the appellant was removed from service under the provisions of Section 12-A of the Civil Servants Act, 1973 and his case was reviewed, in the first instance, by the Review Board and, later, by the FPSC, and the Review Board had recommended his removal from service, while the FPSC found him fit for holding an equivalent post in the Secretariat Group and not the Foreign Affairs Group and, accordingly, he was re- appointed in the Secretariat Group. According to him, the appellant was not entitled to the monetary benefits for the period his case remained under review from 6-12-1978 to 8-12-1981. He has further contended that the President was pleased to pass specific, order dated 31-7-1979 that the officers removed from service under the provisions of Section 12-A of the Civil Servants Act, 1973 shall not be entitled to monetary benefits on their reinstatement/re-employment in service. He has stated that the question of promotion of the appellant was referred to the Central Selection Board twice but his case was deferred, first time on the ground that he had not taken NIPA Course, and second time on the ground that his record was not up to the mark.
5. The appellant was removed from service under the provisions of Section 12-A of the Act vide order dated 10-7-1978 and he relinquished charge of the post of First Secretary at Darus Salam on 7-8-1978. He successfully resisted his removal from service and he was appointed in Grade-19 in the Secretariat Group with immediate effect vide notification dated 23-12-1981. He pursued his claim for determination of seniority and he was allowed seniority in the rank of Deputy Secretary (B-19) in the Secretariat 'Group from the date of his original appointment in equivalent post by lateral entry in the Ministry of Foreign Affairs viz. 7-12-1973 with consequential benefits as per Memo.
Dated 4-2-1987. After the restoration of his original seniority as aforesaid, he became entitled to consideration for promotion in accordance with the seniority so achieved by him. The learned counsel for the respondent has stated that the appellant's case was referred to the Central Selection Board twice for promotion, in March, 1987 and June 1988, but he was not approved for promotion. It is laid down in clause (b) of proviso to subsection (1) of section 4 of the Service Tribunals Act, 1973 that no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or to hold a particular post or to be promoted to higher grade. Since the case of the appellant for promotion was considered and he was not found fit for promotion, this Tribunal cannot grant him relief of promotion in view of the bar to its jurisdiction, referred to above.
6. The second prayer of the appellant in the appeal is that of restoration of Salary Slip No,GA- VII/FR/AR-125/OSD/6008, dated 13-5-1987. This salary slip pertained to the period from 8-8-1978 to 31-12-1981 when he was kept out of the job. By virtue of appointment of the appellant in the rank of Deputy Secretary (B-19) in the Secretariat Group vide notification dated 23-12-1987 and restoration of his original seniority from 7-12-1973 vide Memorandum dated 4-2-1987, the appellant is deemed to have been conferred continuity in service. Of course, he had remained out of the job from 8-8- 1978 to 31-12-1981 on account of his removal from service under the provisions of Section 12-A of the Act, but by virtue of the aforesaid notification of his appointment and continuity of seniority from the day of his original appointment, he became entitled to the monetary benefits for that intervening period. However, it has been contended on behalf of the respondents that a detailed Summary was submitted to the President in respect of 252 officers of lateral entry, whose cases were referred to the FPSC in terms of Rule 4 of the FPSC Rules for examination review under the provisions of Section 12-A of the Act, and he was pleased to accept the recommendations vide order dated 31-7-1979 that the officers whose appointments were approved by the FPSC may be taken into service and their seniority would be restored but he specifically ordered that they shall not be entitled to any pay and allowances for the period they had remained removed from their jobs pending the report of the FPSC. He has very fairly stated that representation of the appellant for restoration of the seniority with back benefits was submitted to the Prime Minister who was pleased to approve, vide order dated 6-12-1986, the recommendations in the Summary that the appellant may be restored his original seniority with consequential benefits. However, he has contended that it would be for consideration whether the Prime Minister's orders superseded the orders of the President dated 31-7-1979, referred to above. This argument does apparently raise the question of sanctity of the orders passed on the same subject by the President as well as by the Prime Minister; but it would appear that the President's orders were passed during the period of Martial Law Regime when the powers of the Prime Minister were exercised by the CMLA, who was also the President, and the orders passed by the Prime Minister, on the restoration of the Constitution, would be deemed to have been passed by the Prime Minister who was the competent authority at the relevant time and the orders passed by him did not amount to superseding the orders of the President but it amounted to review or modification of the order by the competent authority, although designated in other form. Therefore, the appellant, by virtue of restoration of his original seniority with consequential benefits, became entitled to the monetary benefits for the period from 8-8-1978 to 31-12-1981 he had remained out of the job. There is authoritative decision on this proposition of the Supreme Court in the case of Pakistan through General Manager, P.W.R., Lahore v. Mrs. A.V. Issacs, reported in PLD 1970 SC 415, wherein it was held that where dismissal of a Government servant was found to be wrongful, there was no reason for not allowing him consequential relief of salary for the period he had remained dismissed from service. There are decisions of the superior Courts for allowing monetary benefits even to the Government servants, who were not promoted at due time and were subsequently promoted with retrospective effect, for the period they were denied the promotion. Reference may be made to the cases of Syed Mazhar Hussain Rizvi v. Government of West Pakistan, reported in PLD 1973 Lahore 56; and Syed Sultan Shah v. Government of Baluchistan, reported in 1985 SCMR 1394. In the light of aforesaid decisions, we have no hesitation to hcild that the appellant is entitled to salary etc. For the period he remained removed from service consequent to the order passed under section 12-A of the Act, which stood impliedly rescinded by appointing the appellant in equivalent post by order dated 7-1- 1982 and restoration of his original seniority vide order dated 4-2-1987. Accordingly, the Salary Slip No,GA-VII/FR/AR-125/OSD/6008 issued in favor of the appellant which was cancelled, stands restored and The appellant shall be entitled to draw the salary as indicated therein.
7. In view of the decision that the appellant was entitled to the consequential benefits for the period from 8-8-1978 to 31-12-1981 he remained B removed from service, that period would be treated as the period spent on duty and it would be treated, as such, for the purpose of pensioner benefits as well.
8. For the reasons recorded above, the appeal is allowed for the reliefs of c cancellation of the order dated 13-5-1987 by which the Salary No,GA.VII/FR/AR-125/0SD/6008 was cancelled, and declaring that the appellant shall be entitled to the pensioner benefits from the day of his original I appointment viz. 7-12-1973, of course, subject to the relevant rules.