' NOOR MUHAMMAD MAGSI (MEMBER).---Appellant Ghulam Akber, joined service in the T&T Department as Telephone Operator, in the year 1960 he did his B.Sc. In the year 1972 and was promoted as Engineering Supervisor (BPS-11) with effect from 8-3-1979. He was further promoted as Assistant Engineer/SDO (BPS-16) with effect from 5-7-1988 vide Notification dated 27-10-1992 but he was not allowed arrears except the benefit of fixation of pay under F.R. 26(c). In the year 1983 certain promotions were made against 50 vacancies of Assistant Engineers/SDOs and according to recruitment rules 25% of the posts were to go to the share of officials having B.Sc./M.Sc. Against promotion quota, however, the D.P.C. Only considered 33 cases out of 50 and thus the appellant was deprived of his legitimate right of promotion. The matter was taken to the Secretary, Communications, who directed Mr Abdullah Khan. Government Inspector (T&T) to probe into the matter as to why the three left over cases of engineers for promotion were pending, so that no injustice be done to any one. The Government Inspector, T&T, made the following observations.
"The list of eligible candidates who fulfilled all required conditions of promotion contained 48 names (General Branch) in order of seniority. Out of serial 1 to 30, twenty-four were promoted in 1983. Six were not promoted due to their being abroad or on extraordinary leave.
' Out of remaining 18 candidates, two were on extraordinary leave, and therefore, 16 names at serial 31 and 33 to 48 were eligible and fulfilled necessary conditions for promotion. Therefore, they be considered as left over and should have been promoted in 1983."
' The matter went to the Secretary, Communications and he ordered as under:-- "In view of what is stated above, the D.P.C. Should consider their belated promotion immediately, since they were eligible for the promotion as far back as 1983."
' The Government Inspector (T&T) further observed that the promotion order of the three left over Engineering Supervisors viz. M/s. Ghulam Akbar, Munir Ahmad and Muhammad Khursheed may be issued immediately, and reference made unnecessarily to Establishment Division may be withdrawn forthwith.
2. The matter did not materialise. However, the appellant was promoted as Assistant Engineer/SDO (BPS-16) with effect from 5-7-1988 against 25% quota reserved for promotion vide Notification dated 27-10-1992. The appellant made a representation to the Chairman, P.T.C. On 6-4-1993 contending that his name was also placed before the D.P.C. Held in the year 1983 against 25% quota and was considered while he was within the range of promotion but the D.P.C. Only considered the cases of 33 persons and the case of the appellant alongwith two others was treated as left over cases and he should have been considered for promotion with effect from 25- 5-1983. The representation was rejected by letter dated 2-10-1993 and it reads as under:- "The undersigned is directed to refer to General Manager, CTR, II(N) Letter No, KTR-II/SP-138(G.O.)/2, dated 12-6-1993 on the subject and to say that Mr. Ghulam Akbar, Engineering Supervisor (B-11) has already been promoted to the post of Assistant Engineer/SubDivisional Officer (B-16) with effect from 5-7-1988 vide Notification No, S(III).13-3/92-KW, dated 27-10-1992 and the seniority of Mr. Ghulam Akbar shall be regulated in terms of section 8(4) of Civil Servants Act, 1973 as adopted by P.T.C.
' Mr. Ghulam Akbar may please be informed accordingly under intimation to this Head quaters."
' The above letter was communicated to the appellant on 26-2-1994. Thereafter, he preferred this appeal before the Service Tribunal on 26-3-1994.
3. We have heard Mr. Pervaiz Ahmad, learned counsel for the appellant. He stated at the Bar that since clear cut vacancies were available in the year 1983 and the appellant was treated as left over case at high level inquiry conducted by the Government Inspector, he urged that directions may be issued to the respondents to consider the case of the appellant for promotion with effect from 25-5-1983 when he was treated as a left over case by the competent authority.
4. Mr. Ali Murtaza Hussain, Advocate appeared for the respondents and contended that the appeal is time-barred. On merits he only submitted that the appellant's case could not be considered in the year 1983 as he belonged to 1979 batch.
5. Before we go into merits of the case, we would like to dispose of the legal objections of time-bar raised by the respondents. The matter of promotion of the left over engineers was probed into under the directions of the Secretary, Ministry of Communications by the Government Inspector, T&T and the competent Authority i.e, the Secretary, Ministry of Communications, after accepting the findings, directed that the D.P.C. Should consider their belated promotion immediately, as they were eligible for promotion since as back as 1983. It was further directed by the Government Inspector, vide note dated 28-8-1988 that promotion orders df the Engineering Supervisors, namely M/s. Ghulam Akbar, Munir Ahmad and Muhammad Khursheed, may be issued immediately. These directions were partly implemented by granting the appellant promotion to Grade-16 with effect from 5-7-1988 vide Notification dated 27-10-1992. The appellant made representation to the Chairman, P.T.C. On 6-4-1993 which was duly considered, but the same was rejected on merits and not as time-barred. He then preferred this appeal on 26-3-1994 within 30 days from the communication of that order. In view of the Supreme Court's decision reported in 1971 SCMR 170, wherein it has been held that a departmental authority while disposing of an appeal being fully conscious of the question of limitation rejects the appeal on merits, it shall be presumed that the delay has been condoned. As such the appeal is not time-barred and the objection of the respondents is repelled.
6. According to recruitment rules published in SRO 977(1)/81, dated 15th August, 1981 laying down the method, qualification and other conditions for appointment to the posts in Grade-16 in the "GENERAL" and CARRIER AND WIRELESS" Branches of T&T, 757i of the posts are to be filled by promotion from the persons who are diploma engineers and 25%, having B.Sc./M.Sc. With 10 years service in the T&T Department, and who have also passed the qualifying examination for promotion to Grade-16. The appellant having joined service in the T&T Department, in the year 1960 and being B.Sc. And having qualified the departmental examination was undoubtedly eligible for promotion to Grade-16 when the D.P.C. Met on 23-5-1983, and his case was left over, although there were 50 vacancies available for promotion to Grade-16 but the D.P.C. Cleared only 33 cases and usurped the share of the appellant. The matter of promotion of the left over engineers, on the .Direction of the competent authority i.e, Secretary, Ministry of Communications, was got investigated at the level of Government Inspector, T&T, who after considering the overall position of the vacancies and the eligibility of the candidates, held that the appellant alongwith two other candidates was eligible for promotion and their cases were treated as left over cases. It was directed by the competent Authority that their promotion orders may be passed to avoid any injustice. It is a settled law that no one can be prevented from being promoted to a higher post due to no fault of his and in such cases, the Honourable Supreme Court has allowed the promotion with back benefits. On this we rely on the judgment of the Lahore High Court reported in PLD 1973 Lahore 56 and the judgment of the Supreme Court reported in 1973 SCM R 304.
7. As discussed above, the competent Authority had treated the case of the appellant as a left over case from 1983, we therefore, in the interest of justice and fairplay, direct the respondent- Department to consider the case of the appellant for promotion to Grade-16 from the date the D.P.C. Met on 25-5-1983 had not considered his case for promotion to Grade-16 in spite of his being eligible for promotion to Grade-16. This matter may be decided within a period of 3 months and report compliance. With these observations the appeal stands disposed of.
8. No order for tests.