' MM. -GEN. CH. ABDUL RAHMAN KHAN, HI (M) (MEMBER).--Mr. Walayat Khan, Assistant Chief (BPS-18), the appellant, has preferred the present appeal against the impugned order, dated 31-3-1983 whereby he was promoted as Assistant Chief (B-18) with effect from forenoon of 25th of June, 1981 claiming that his promotion should be ante-dated with effect from 21-1-1977. His departmental appeal, dated 28-4-1985 addressed to the President of Pakistan was withheld by the Establishment Divn. Under Civil Servants (Appeal) Rules, 1977 and para. 11 of the Petition Instructions notified vide S R 0.1313(K)/67, dated 27-7-1967.
2. Briefly, the facts of the case are that the appellant joined Government service as Assistant in the Ministry of Finance on 1-1-1968. He was later selected through the Federal Public Service Commission (F.P.S.C) as Economic Investigator in the Economic Affairs Division with effect from 11- 8-1971 and appointed as Research Officer (B-17) with effect from 9-8-1973. The appellant was sent on training, M.A. (economics) Degree Course in U.S.A. In August, 1976 for a period of one year. During the period of his training abroad, a temporary post of Assistant Chief (B-18) became available for 'promotion quota' in Economic Affairs Division on 21st of January 1977. The appellant was the senior most Research Officer and accordingly the Departmental Promotion Committee in its meeting held on 16th March, 1977 recommended him for promotion as Assistant Chief against the vacancy in question. Also, it was recommended, that during the period of his absence abroad he would be designated as 0 S D (Grade-18) and this vacancy be filled on ad hoc basis by promoting next junior Research Officer on the list (Mr. Mazhar Javaid). However, the Establishment Division returned this proposal on 25-5-1977 with the remarks that 'the appellant's promotion would be considered on his return from training'.
3. It was contended by the learned counsel for the appellant that the promotion case of the appellant was returned by the Establishment Division solely because his service experience in B-17 was wrongly mentioned as less than 5 years in the Summary. In fact, the appellant had more than 5 years of service equivalent to B-17 on 21-1-1977 (the date of availability of the vacancy). It was submitted that if it were not for wrong computation of his length of service, the appellant would have been approved for promotion to B-18 formally from 21-1-1977 and actually from 7-9-1977 when he returned to Pakistan as envisaged in Finance Division's O.M. No, 361-R.4/65, dated 25th March, 1965. This fact was also admitted by Economic Affairs Division vide their u.o., dated 9-4-1978.
It was further cotended that on 26-9-1977 after the return of the appellant from training when the proposal of his promotion was re-submitted seeking approval of the Establishment Division, the Economic Affairs Division was advised to process the case through the Planning and Development Division who had since assumed the administrative control of the Economists and Planners Group vide O.M., dated 9-2-1977. The Planning Division did not agree to the promotion of the appellant because he was considered very junior on the integrated list of the Research Officers in the Group.
In this regard extracts of Economic Affairs Division's u.o., dated 9-4-1978 in which the case of the appellant was strongly recommended for promotion with effect from 21-1-1977 giving details relevant to the case are reproduced below:-
(3) "On the other hand, the Planning Division when requested to agree to the promotion of Mr. Walayat Khan as Assistant Chief, informed us that the officer was very junior on the integrated list of Research Officers under the Group, and his promotion to the post of Assistant Chief superseding his seniors was not feasible. However, we still feel that the stand taken by the Planning Division is not in order. The cases in `pipeline' were finalised by the respective Divisions and the Establishment Division also approved promotion of:-
(I) Dr. Mushtaq Ahmad as Senior Deputy Economic Adviser in Finance Division in July, 1977.
(ii) Mr. Mohammad Hasin Khan as Chief Research Officer in Industries Division in May, 1977.
(4) With the operation of the Economists and Planners Group, our Draft Recruitment Rules were replaced by the new Rules introduced for the Group and the distribution of vacancies as determined by us, was upset. The vacancy in question has now been given to a direct recruit and according to the advice of Planning Division a F P SC approved candidate (Qazi Shamsuddin) has been appointed against this vacancy. However, in case our proposal is approved by the Establishment Division and Mr. Walayat Khan is promoted as Assistant Chief, we will surrender Mr. Muhammad Youths, Assistant Chief (ad hoc appointee) to the Planning Division.
5. The applicant has now requested that his case may again be taken up with the Establishment Division. The main point for consideration, as raised by Mr. Walayat Khan, is that during his training period he was treated on duty and his service interests in regard to promotion were to be safeguarded in terms of Finance Division O.M.No,361-R.4/65 dated 25-3-1965 according to which he should have been appointed formally (not actually) during the period of his training. We tried to protect his service interests during training and the D P C recommended him for promotion but the Establishment Division advised us to defer the promotion till his return from training. Now he has since returned from abroad but his promotion is still awaited. Had Mr. Walayat Khan not gone on long leave before foreign training, he would have been promoted as Assistant Chief long before.
Practically, this training has placed Mr. Walayat Khan in a disadvantageous position so much so that he has to suffer throughout his service career on this account. If the standing Government instructions as contained in Finance Division O.M.No,361-R.4/65, dated 25-3-1965 are upheld the promotion of Mr. Walayat Khan should be given effect w,e,f, 21-1-77 the date when the post was created and the Economists and Planners Group was then not in operation. Also, as quoted by the applicant the Establishment Division have approved Mr. S.M. Younus Jafri, Planning Officer in the Planning Division in July, 1977 for promotion as Assistant Chief while he was on training and his return from abroad is still awaited. It may also be pointed out here that the advice of Establishment Division in the case of Mr. Walayat Khan was received in May. 1977 while Mr. Jafri in Planning Division was approved by them in July.
1977. We feel that uniform policy has not been followed in these cases.
(6) With a view to maintain uniform policy in recruitment and also to avoid hardship to the Officer, it is proposed that in terms of Finance Division O.M. No,361-R.4/65, dated 25-3-1965, Mr. Walayat Khan, Research Officer may be promoted to the post of Assistant Chief (Grade-18) formally (not actually) w,e,f, 21-1-1977 during the period of his foreign training upto 6-9-1977 and from 7-9-1977 onward his promotion may be given effect on regular basis."
4. It was strongly contended that in spite of very positive and clear stand regarding the promotion of the appellant which fulfilled the requirements of the existing rules squarely and appropriately, the promotion case of the appellant remained under consideration of the Economic Affairs Division, Planning Division and the Establishment Division for a long time. The mistake committed in computing the service of the appellant in B-17 was also detected and admitted by the Economic Affairs Division and also by the Establishment Division without reservation. In all fairness, therefore, the case of promotion of the appellant should have been approved by the competent authority formally with effect from 21-1-1977 and actually from 7-9-1977 when he returned to Pakistan after training abroad. This was a case where the appellant was prevented to serve on higher post due to no fault of his own. This is sufficiently proved by the fact that the mistake regarding the mis- calculation of his service in B-17 had been established and admitted by the respondents. The appellant was, therefore, entitled to be promoted as indicated above i,e, formally with effect from 21-1-1977 and actually from 7-9-1977. Reliance in this regard is placed on PLC 1972 LHR 518. In the light of the above arguments, it was strongly contended by the learned counsel for the appellant that the impugned order regarding the promotion of the appellant to B-18 vide Government of Pakistan, Economic Affairs Division Notification, dated 31st March, 1985 be declared unlawful promoting him to B-18 with effect from 25-6-1981. Instead, he should be promoted formally from 21- 7-1977 and actually from 7-9-1977 as originally recommended by the D P C held in March, 1977 with full back benefits as envisaged in Finance Division's O.M. No,361- R.4/65, dated 25-3-1965.
5. The learned counsel for the State alongwith the representatives of the respondent departments submitted that the promotion case of the appellant while serving as Research Officer in the Economic Affairs Division was initiated in January, 1977 against the 'promotion quota' post of Assistant Chief. His case was cleared for promotion by the D P C held in March, 1977 and was processed for approval by the competent authority. However, it was observed that the appellant did not possess the requisite length of service and the Economic Affairs Division was advised to initiate the case on return of Mr. Walayat Khan from training abroad. When the case was re- examined, it was found that when the original reference was made, the appellant did possess the requisite length of service by computing the service rendered in the lower grades. Initially the promotion case of the appellant was returned by the Establishment Division on 20-5-1977 with the remarks, "Mr. Walayat Khan is expected to return from foreign training after two months. His promotion will, therefore, be considered on return". Meanwhile, the Planning Division had assumed the administrative control of the Group vide letter, dated 9-2-1977. The representation of the appellant regarding the recalculation of his length of service in B-17 considering his actual date of joining the Government service i,e, 1-1-1968 was forwarded in original to the Planning and Development Division for necessary action. It was contended that the promotion of the appellant was not delayed due to less service experience. Instead, it was delayed in deciding the point as to whether or not the case should be processed by treating it as a 'pipeline' case of the Economic Affairs Division (EAD). During this period, it was submitted, that none of his juniors were promoted and, therefore, he had no claim to promotion. The post was merely kept vacant.
6. The learned counsel for the State further submitted that the promotion of the appellant to B-18 was approved by the competent authority only when it was finally decided that it was a 'pipeline' case of EAD. He further reiterated that this delay in approval of his promotion by the competent authority did not occur due to the shortfall in his length of service or experience as contended by the learned counsel for the appellant. In fact this was the first time that the promotion of the appellant to B-18 was approved by the competent authority. In the meantime the vacancy which was initially a 'promotion quota' vacancy with EAD had been reallocated to 'Direct Recruits' of Planning and Development Division. The Gazette Notification of Planning and Development Division, dated 29-6-1981 promoting the appellant with effect from 25-6-1981 as Assistant Chief (B-18) was withdrawn in view of the decision of considering this as a`pipeline' case of EAD. The promotion of the appellant was, therefore, notified vide EAD Gazette Notification, dated 31-3-85 under the existing rules. Since no Officer junior to the appellant had been promoted during this period i,e, before his actual promotion, he had no claim to ante-dated promotion. It was contended that under the circumstances, it was only the President of Pakistan who could consider his case for retrospective promotion under section 23 of Civil Servants Act, 1973 for which there was no justification. Hence his representation, dated 28-4-1985 to the President of Pakistan was withheld under Rule 7(i)(a) of the Civil Servants (Appeal) Rules, 1977.
7. Mr. Fazal Hussain Chaudhri, Advocate, counsel for the respondents 4, 5 and 6 while reiterating the arguments given by the learned counsel for the State, inter alia, submitted that after the formation of the Economists and Planners Group which became operative with effect from 9-2-1972, the appellant was encadred in the Group as Research Officer. In this Group, the appellant was not the senior most and, therefore, could not be considered for promotion as Assistant Chief against the vacancy that was created in the Economic Affairs Division for preparation of National Technical Assistance Planning (U.N.D.P). This happened after the new Group had been constituted on 25-3- 1976. It was contended that in accordance with the rules governing the management of the Group all other draft recruitment rules followed in other Ministries/Divisions were superseded for the purpose of filling-up the new vacancies. This vacancy was eventually allocated to the quota of direct recruitment and not for promotees. It was accordingly filled in by nominee of Federal Public Service Commission (F.P.S.C). In view of the above arguments, it was strongly contended that there was no basis for ante-dating the promotion of the appellant and the appeal be dismissed being incompetent and not maintainable in law and facts.
8. We have heard the arguments from both the sides. We are of the view that in the first instance when the case of promotion of the appellant was processed, the circumstances were entirely in favour of the appellant, viz. He was duly recommended by the D P C, the post was meant for 'promotion quota' and he had 5 years service in B-17 if computed correctly. Therefore, if the mistake had not been committed in computing his service which was later admitted by the Economic Affairs Division and Establishment Division to be correct, the chances were that his case of promotion would have been approved by the competent authority. In such a case the appellant would have been promoted formally with effect from 21-1-1977 and actually from 7-9-1977 as laid down in Finance Division's O.M. No, 361-R.4/65, dated 25-3-1965. But, to his bad luck, his service equivalent to B-17 was computed wrongly and, therefore, his case of promotion was not approved and also he was not given the relaxation for the period of 3 months which fell short of the required length i,e, 5 years in this case. (This relaxation in fact was not needed in his case if this computation of his service was done correctly). The net result in his case was that the appellant lost a fair chance of his promotion to B-18 in the year 1977.
9. It was stated that the case of promotion of the appellant was to be re-submitted on his return from foreign assignment who otherwise was considered to be on official duty under the existing rules. From a plain reading it would be fair to conclude that these remarks were primarily meant to afford a chance to the appellant to complete his service limit of 5 years and not for any other reason to delay his promotion. So, therefore, when as a result of the representation of the appellant, this shortfall was overcome and his service equivalent to B-17 was admitted to be 5 years, his case of promotion should have been processed for approval by the competent authority as it stood in the first instance i,e, he should have been approved for promotion formally with effect from 21-1- 1977 and actually from 7-9-1977. The delay in deciding his case as a 'pipeline' case should not be counted against him because similar cases had been processed and approved much earlier as stated in para. 3 of extracts of EAD's U.O., dated 9-4-1978 quoted above. It would be unfair to make an exception in his case. His genuine absence on duty and admittedly wrong computation of his length of service were beyond his control at a time when a fair and favourable decision could have been taken. In our considered view, it was a typical case of an inadvertent mistake which then resulted in a delayed decision. In view of the principles of natural justice, the effect of this belated delay in deciding it as a `pipeline' case should not be extended to make the appellant suffer irrevocably for the rest of his career.
10. In view of the facts, we feel that the conditions as applicable initially when his case was processed for approval should have remained applicable. In our opinion, therefore, the appellant should be considered approved by the competent authority for promotion to B-18 as if he had initially fulfilled all the conditions laid down for promotion from the 'promotion quota' while on the strength of the Economic Affairs Division as laid down in Finance Division's O.M. No, 361-R.4/65, dated 25-3-1965. Consequently, it boils down to the fact that the appellant had been prevented to work on a higher post due to no fault of his as held in PLD 1972 Lah.
518. We would, therefore, in the interest of fair play and justice expect respondents Nos. 1 and 2 to graciously withdraw the impugned Notification and publish a fresh Notification considering the appellant to be promoted to B-18 formally with effect from 21-1-1977 and actually from 7-9-1977 with full back benefits under the existing rules. .
11. No order as to costs.
12. Parties be informed.
' SYED ALLY MADAD SHAH (CHAIRMAN).--With due regard that I have for the views expressed by the learned Member, I agree that the appellant was entitled to promotion with retrospective effect as held by the learned Member, but I do not agree that the notification of his promotion should be withdrawn; and I would direct that the notification of his promotion dated 31-3-1985 issued by the Ministry of Finance and Economic Affairs, regarding the promotion of the appellant, should be given effect to from 7-9-1977 and such fresh notification should be issued. The appellant shall be entitled to the consequential benefits.
ORDER OF THE TRIBUNAL The promotion of the appellant shall be effective retrospectively with E effect from 7-9-1977 and the notification of his promotion dated 31-3-1985 shall be revised accordingly.##TE#