1. JUDGMENTZIA MAHMOOD MIRZA, J - Petitioner, a PCS Officer, now posted as OSD in Services General Administration and Information Department, Government of Punjab, has filed this constitutional petition praying that "the respondent may be directed to implement the decision of the Punjab ServiceTribunal dated 16.12.85 and..................... To grant pro-forma promotion to the petitioner as DC/DS Grade 18 with effect from 28.6.78".
2. Facts giving rise to this petition, briefly stated, are that the petitioner on his initial appointment was posted as EAC (Junior Class-I) at Rawalpindi on 2.4.1963. Later, on the introduction of Assistant Commissioners' Scheme, he was selected as Assistant Commissioner on the basis of senioritycum-fitness vide notification dated 24.12.1969. He worked as Assistant Commissioner at various places and was posted as ADC(G), Gujrat, when Pay Revision (Gazetted) Rules, 1973, were promulgated. These rules provided higher pay for the post of AC/ADC and the incumbents were required to opt either for (a) The existing pay scale in NPS/Grade-17 with special pay of Rs.60/- p m.
2. Along with the benefit of selection grade 1050 - 75 - 1500 or (b) New scale of pay in NPS/Grade-18.
3. Petitioner gave option for new pay scale. The option once exercised was final. These rules further provided that the pay of the existing Government servants who opted for National Pay Scales shall be fixed in the said scale with effect from 1.3.1972. It appears that the petitioner was not granted higher pay scale on the ground of his unsatisfactory record of service and was served with a show cause notice. He was also subjected to a departmental inquiry on the charge of misconduct but was finally exonerated on 9.1.1979. In the meantime, he was also ignored for promotion to higher post in NPS- 18. Petitioner made representation requesting for higher scale w.e.f. 1.3. 1972 and for promotion to Grade-18 (DC/DS) in accordance with his seniority from the date his next junior was promoted as such. This representation was rejected on 16.12.1984.
4. Petitioner filed two appeals before the Punjab Service Tribunal. In the first appeal (No.703/1164 of 1984), he prayed that the respondents be directed to consider him for promotion to the next higher grade i.e. Grade-18 (DC/DS) and to promote him with effect from the date his next junior was promoted. In the second appeal (No.14/57 of 1985), petitioner prayed that the aforementioned order dated 18.12.1984 be set .'side and he be declared to be entitled to promotion in NPS-18 (AC/ADC) wu1' effect from March 1972 with all back benefits and that his seniority position . Before the publication of seniority list of 1982 be restored.
3. Punjab Service Tribunal by order date 16.12.1985 accepted the appeals of the petitioner together with a conn aed appeal of one Rana Muhammad Bashir Ahmad holding that "the appellants would be entitled to NPS-18 (AC/ADC) after having opted under Rule 4 of the Pay Revisions (Gazetted)
5. Rules, 1973, from 1.3.1972, and that to withhold them from Grade-18 (DC/DS) from the date their juniors were so given would also be unjustified".
6. It appears that the respondents neither filed any appeal against the aforementioned order of the Service Tribunal nor did they implement the said order. Petitioner made representation for implementation of the order of the Service Tribunal whereupon he was allowed NPS-18 (AC/ADC) w.e.f. 1.3.1972. This was vide notification dated the 2nd September, 1986 (Annex B). By another notification dated the 26th August, 1987, (Annex C), petitioner was promoted "to a post in BPS-18 (DC/DS) |.Petitioner was not satisfied with the notification (Annex C) because his claim was that in pursuance of the decision rendered by the Punjab Service Tribunal, he was entitled to the grant of pro-forma promotion as DC/DS w.e.f. 28.6.1978 i.e. The date on which his junior was promoted to the said post. He, therefore, submitted representation to respondent No.2 complaining therein that the order of the Service Tribunal was not fully implemented as he was not given promotion with effect from the date his junior was promoted to Grade-18 (DC/DS). It is alleged that the matter was referred to the Pro-forma Promotion Committee for the purpose of scrutiny. Case of the petitioner is that no such reference was called for and the respondents were bound to promote him as DC/DS w.e.f. 28.6.1978 in pursuance/implcmcntation of the decision of the Punjab Service Tribunal.
7. His grievance is that reference of the matter to the Pro-forma PromotionCommittee amounts to non-implementation of the judgment of the Service Tribunal.4. I have heard the learned counsel for the petitioner as also the learned Advocate-General for the respondents and the officers present in Court with record. It is not denied by the respondents that the judgment of the Punjab Service Tribunal implementation whereof is sought by the petitioner was not appealed against. In fact, it is stated by the officers that the case was referred to the learned Advocate-General Punjab for filing an appeal against the decision of the Service Tribunal who opined that no fruitful purpose would be served by taking the matter in appeal and it would be a sheer wastage of public money and time.
8. The matter was then placed before the Provincial Selection Board for consideration of the promotion of the petitioner to the rank of DC/DS from 28.6.1978 i.e. The date when his junior was so promoted. The Provincial Selection Board in its meeting held on 22.2.1987 decided that the petitioner be promoted to BPS-18 (DC/DS) with immediate effect and further directed that his claim for pro-forma promotion with effect from the aforesaid date should be considered by the Pro- forma Promotion Committee. It is further stated by the officers that the case of the petitioner was examined by the Pro-forma Promotion Committee in its meeting held on 31.8.1988 and it was observed that "the officer had been ignored in 1978 by the Provincial Selection Board on account of unsatisfactory record of service; therefore the question of his proforma promotion with effect from 1978 does not arise. The Committee further observed that the observations made by the Punjab Service Tribunal regarding Mr.Mansoor Azhar Farooqi's case did not make it binding on this Committee to ensure that the officer stands promoted with effect from a particular date. The only inference that can be drawn is that this case must be considered for grant of proforma promotion by the respective Committee. This Committee has examined this case very minutely and has decided not to recommend grant of proforma promotion to Mr. Mansoor Azhar Farooqi on the basis of his unsatisfactory record of service".The officers state that the afore-noted view of the Pro- forma Promotion Committee was placed before the Provincial Selection Board in its meeting held on 24.1.1989. The Board approved the view of the Pro-forma Promotion Committee with the following observation :-"The Law Department had advised that the judgment of the Punjab Service Tribunal having become final in this case and the Government having implemented a part of it, it would not be advisable at this stage to ignore the second portion of the judgment, i.e. The grant of grade 18 fDC/DS) from the date it was allowed to the juniors of the appellants. The Board however, discussed this advice and agreed with the view of the Proforma Promotion Committee that the observation by the Punjab Service Tribunal (endorsed by the Law Department) regarding promotion of Mr.Farooqui did not make it binding on the government that the officer must be promoted with effect from a particular date, the officer can only claim kto be considered for promotion but the promotion will take effect only if the suitability for promotion is established in accordance with the rules and the procedure. The Board endorsed the recommendations of the Profrma Promotion Committee that in view of unsatisfactory record of service, Mr.Farooqui was not fit for promotion to the rank of DC/DS with effect from 28.6.78, when his juniors were promoted or with effect from any subsequent date prior to 31.8.87 when he was actually promoted".5. The afore- noted view/inference of the Pro-forma Promotion Committee and the Provincial Selection Board is clearly based on misreading of the judgment of the Punjab Service Tribunal. The fact that the petitioner was ignored on account of his unsatisfactory record of his service was duly noticed by the Service Tribunal in para 15 of its judgment and it was observed "The basis of unsatisfactory record of service on which he was so ignored, was removed by Government. Similarly the charge for which he was kept under suspension in 1976 was found baseless on the conclusion of the inquiry and was allowed full pay and consequential benefits. In this manner we have no hesitation to repel the argument of the respondent wherein it has been mentioned that all what was happened to the appellant was due to his checkered record of service". In the presence of this finding/observation of the Service Tribunal, it was not available to the Pro-forma Promotion Committee and/or the Provincial Selection Board to rely upon the so-called unsatisfactory record of service of the petitioner for holding him not fit for promotion. In fact, the question of pro-forma promotion was not at all open for determination by the authorities in the face of the categorical decision of the learned Punjab Service Tribunal recorded in the operative part of its judgment saying that it would be unjustified to withhold the petifioner's promotion to Grade-18 (DC/DS) from the date his junior was so promoted. The Pro-forme Promotion Committee and the Provincial Selection Board have drawn wholly incorrect and untenable inference that they can still consider the petitioner's case for the grant of pro-forma promotion. In my view, the judgment of the learned Service Tribunal had placed it beyond doubt that the petitioner was entitled to be promoted to Grade-18 (DC/DS) from the date his junior was promoted to that post and to withhold such, a promition was wholly unjustified. The judgment of the Service Tribunal having not been challenged in appeal had attained finality. The res indents are, therefore, left with no choice but to implement this judgment and to promote the petitioner to Grade 18 (DC/DS) from the date his juni .. Was so promoted. In this view of the matter, writ petition is accepted with costs and the respondents are directed to implement the judgment of the Punjab Service Tribunal in the aforesaid terms.