SYED AAL-E-AHMED (MEMBER): --The appellant Mrs. Shahnaz Nawaz and others have filed this appeal for pro forma promotion/grant of BS-18.
2. Brief facts of the case are that the appellants were appointed as Section Officers through the Punjab Public Service Commission on regular basis by initial recruitment against the vacancies reserved for direct recruitment. They joined between 4-7-1982 and 18-1-1983. For the purpose of seniority all of them will be deemed to have joined on 4-7-1982, the date on which any one of the batch mate joined. The appellant's seniority as Section Officers vis-a-vis promotee Section Officers was incorrectly fixed in the seniority lists of Section Officers as notified on 3-7-1984 and 31-8-1987 wherein the appellants were incorrectly shown junior to the respondents (Promotee Section Officers). On the basis of incorrect seniority as determined in the above-referred seniority list of 1984, Mr. Ghulam Muhammad (Promotee Section Officer) was awarded BS-18, promoted as Under Secretary with effect from 20-3-1986 vide Notification dated 19-5-1986 while the appellants were promoted as Under Secretaries/granted BS-18 ranging between 11/1987 to 8/1988. On representation by the appellants, the competent Authority revised the seniority list and the corrected final seniority list was issued as late as on 1-7-1992 wherein the respondents promotee Section Officers/Under Secretaries were shown junior to the appellants. This list was issue after a good deal of scrutiny and the same attained finality as no representation or appeal has been filed against it. On the correction of their seniority the appellants requested that the date of their promotion/grant of BS-18 may be ante-dated to 20-3-1986, the date on which their junior respondent Ghulam Muhammad and others were granted BS-18/promoted as Under Secretary.
Since no order was passed by the competent authority the appellants submitted representation to the next higher Authority i.e. Governor of the Punjab through proper channel. No order was passed by the Appellate Authority. In view of the law laid down in Falak Sher Khan v. Secretary Agriculture PLD 1989 SC 562 the present appeal has been filed after the lapse of 90 days from the date of filing the representation.
2-A. Learned counsel for the appellants argued that according to policy laid down by the S&GAD in their letter dated 16-10-1973 pro forma promotion should be granted in typical cases enumerated therein. One of such typical cases is that if seniority of two officials is in dispute, the senior official is promoted on due date but subsequently the junior official establishes his claim of seniority by obtaining a favourable decision from Government or the Civil Service Appellate Tribunal. According to that rule in such a case pro forma promotion from due date be given to such an official. The appellant's case squarely falls within the purview of the aforesaid policy letter. Further contended that the seniority dispute was subsequently resolved in appellants' favour as late as in 1992. Had their seniority been correctly fixed in the first instance the appellants should have been considered for award of BS-18 with effect from 20-3-1986 instead of the aforesaid officer. He further argued that the aforesaid principles have been approved by the Supreme Court of Pakistan in a decided/reported case i.e. Mrs. Aqeela Asghar Ali v. Khalida Khatoon Malik PLD 1991 SC 1118. In support of his argument the learned counsel for the appellant produced the advice of the Finance Department before the Tribunal in this case which they tendered on the request of the respondent --Department. The advice of the Finance Department is in favour of the appellants, which is as below: "As a result of change in the seniority list, the senior' officers are entitled to BS-18 as selection grade from the date their junior officers were allowed---------
3. The learned District Attorney opposed the appeal relying upon the written objections filed by the respondent-Department. On careful perusal of the written objections submitted by the respondent-Department, it transpired that the claim of the appellants was accepted by the respondent-Department. The counsel for the appellant prayed that the appeal may be accepted and the appellant be granted BS-18/promoted as Under Secretary from the date on which their junior Mr. Ghulam Muhammad was promoted as Under Secretary i.e. 20-3-1986.
4. We have given our anxious thought to the arguments advanced by the learned counsel for the appellants and find that as a result of the corrected final seniority list dated 1-7-1992 the appellants' right over the respondents is preferential and they are rightly entitled to BS- 18/promotion as Under Secretary from the date on which their junior was granted BS-18/promoted as Under Secretary. We have to follow respectfully the law laid down by the Supreme Court of Pakistan in the judgments referred to above and hold that' the plea taken by the appellants carries weight. Moreover, when the respondent had once accepted their claim and corrected the seniority list which got finality, there is no reason to deprive them of their right to get BS-18/through pro forma promotion as Under Secretary from the date their junior Ghulam Muhammad was so promoted i.e. 20-3-1986 and direct the respondent Government to issue necessary orders accordingly.
5. As a result the appeal is accepted. The parties are left to bear their own costs.
6. ABDUL HAMID KHAN (MEMBER): --I had the privilege of going through the above judgment written by my brother Syed Aal-e-Ahmed, Member-11 and I am in complete and respectful agreement with his analysis of the case and the conclusions drawn by him. I would, however, like to add a few words of my own as well.
7. The more important instructions relating to retrospective/pro forma promotion are contained in S&GAD's circular letters dated 4-12-1962, 16-10-1973, 29-11-1975, 11-10-1980, 7-11-1984 and 1-3-1990, Under the 1973 Circular letter pro forma promotion is allowed in cases where, among others, "the seniority of two officials is in dispute. The senior official is promoted on due date but subsequently the junior official establishes his claim of seniority by obtaining a favourable decision from Government or the Tribunal". This is, however, further subject to the provision that it could be held on the basis of service record and performance of the official that he would certainly have been promoted on the due date but for the circumstance that he was incorrectly treated as junior or was facing a departmental enquiry or was overlooked". The 1984 letter provides that for the grant of pro forma promotion "only such record should be considered as would have been available up to the date of pro forma promotion so as to see if "the employee was fit for promotion on the given previous date". In the 1990 letter it was clarified that "pro forma promotion is allowed in order to rectify a mistake and restores an established legal right of a Government servant" and that " pro forma promotion has to be restricted only to the cases where a junior person has been regularly promoted to a higher post in preference to the senior who is unduly deprived of promotion on his turn". This has been held in no unambiguous terms in the case of Aqeela Asghar Ali v. Khalida Khatoon Malik (PLD 1991 SC 1118) by observing that "the pro forma promotion is not so much a question of fitness as of having been illegally deprived of a right possessed by the civil servant".
8. To sum up, the principles or preconditions for the grant of pro forma promotion which have been laid down in the above policy letters are firstly that the civil servant's seniority should have been established from the date his junior was promoted; secondly that he was fit and, therefore, could earn his promotion on the basis of his satisfactory service record and performance relating to the relevant period; thirdly that it is allowed in cases where a junior had mistakenly been promoted earlier on regular basis by unduly depriving the senior of his right at the appropriate time and lastly that it is something which had unjustly been denied to him, in some cases mala fidely, and that it is not being doled out but is being restored to him as a matter of right by rectifying the earlier mistake or omission.
9. In the case before us all the above conditions are fulfilled in their entirety. It would seem as if all these circular letters were issued just to cover this case and yet the respondent-department did not give the appellants their due at the appropriate time and has now decided to oppose the present appeal as well. But the funny thing is that the department has conceded plainly and quite disarmingly that "according to rules the abovesaid (promotee/respondent) Section Officers were not entitled to seniority and their names should not have been included in the seniority list"
However, even after this unqualified admission and concession the respondent Department has come up with a novel but self-defeating and self-destructive explanation. It states that "if a junior, on the basis of defective seniority list, has been granted selection grade wrongly from an earlier date, an officer who has now become senior to him due to change in the seniority list, does not entitle the latter to such benefit because a wrong already done cannot be corrected by another wrong". This is strange logic. If the juniors had wrongly been given this concession, why was it not withdrawn or conversely why was it denied to their seniors? Pro forma promotion in this case should have been granted to the appellants long ago immediately after their seniority had correctly been reflected in the seniority list. Assigning a civil servant his rightful seniority and still not promoting him on the basis of his improved seniority position is like declaring the contender as King and yet deny him his condonation. Whosoever wanted the respondent Department to commit "another wrong?" Was not one enough? It is only the rectification of a patent wrong admitted by the Department itself which the appellants are seeking. When an official is notionally promoted from an earlier date, there is an implied admission that he was improperly deprived of his Promotion on the due date and that "it is justified on compulsive grounds---as is the case in the appeal before us. All the elements, which could entitle the appellants for BS 18 and promotion as Under Secretary are available. Only someone determined to deny justice to the appellant would not take notice of them. Under rule 13 of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 "a civil servant who is not promoted on his turn on the ground that
(i) his seniority is under dispute or is not determined; or
(ii) he is on deputation, training or leave; or
(iii) disciplinary proceedings are pending against him; or
(iv) he is not considered for promotion for any reason other than his unfitness for promotion; shall, on subsequent promotion, subject to any order made by the competent authority in this behalf for the purpose of inter se seniority in the higher grade, be deemed to have been promoted in the same batch as his juniors."
The Punjab Government would be well advised to adopt these provisions by incorporating them in the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. Such a step will go a long way in finalising the cases of pro forma promotions of civil servants expeditiously.
10. For all these reasons, I agree with the. Learned Member II and accept the appeal. The case may now be processed further by the respondent --Department to grant pro forma promotion to the appellants as Under Secretaries with effect from the due date.
11. Before parting, I would like to take this opportunity to make a comment on the manner in which cases are sometimes processed and decided by the Department against which the civil servants come running to this Tribunal for relief. A new administrative culture appears to be developing in which the civil servant can get relief only through the intervention of the administrative or other Courts of appropriate jurisdiction. There may be many reasons for this emerging pattern but the major factor seems to be of ministerial responsibility among the staff officers. Based on their experience in the relevant field and familiarity with the administrative procedures and rules these officers are expected to tender to their Ministers or superiors the best advice, without fear or favour, which is fair and in the best interest of the Department and the public, in accordance with rules and the policy of Government which at the same time secures speedy and efficient disposal of the problem and is most economical and cost effective. And in so doing they have to be conscious of the fad that they are not misleading, concealing, misrepresenting or twisting facts. I am sure that the high ups of the respondent Department in this case did not get the right advice. The proposition in this case was so simple and compulsive that there could have been no two opinions about it.
12. The appellants' representation being a genuine one could have immediately been accepted by the Department as a matter of course but things have been allowed to be delayed and the appellant pushed into unnecessary litigation. Excessive delays in settlement of service matters not only affect individual morale but sap the vitality of the system as a whole in the long run. It results in so much waste of every body's time, energy and expense. Apart from the ministerial responsibility "the over all responsibility of Government litigation" in the final analysis, "is that of the Secretary--Head of Department concerned because it is they who are supposed to ensure that cases are properly handled and persued "(Law Department's Circular Letter No.Ge:5-75/82, dated 31-1-1982). They have an abiding duty to give their personal attention to such matters so that the civil servants get a fair deal and are treated even-handedly.