JUDGMENTSAFDAR HUSSAIN SHAH JAFRI, MEMBER-I.- The judgement in this appeal shall also apply to appeal No. 171/90 as the facts and legal issues arising in the said appeal-are similar to those dealt with in the instant appeal.
2. The appellant Noor Shah Rashid pased the Sub Divisional Clerk's examination held on I6 and 17.12.1987. The result of the examination was not rifled vide office order, dated 13-2-1988 (Annexure- A^He was given acting charge of the post of SDC with effect from 4.4.1988 and was, aiongwith respondent No. 4 namely Ahmad Nawaz given officiating promotion with effect from 3.1.1989 (Annexure-B). The appellant challenged the order on the ground that he was entitled to promotion with effect from 13.2.1988 i.e. The date on which the result was notified. His appeal against the aforesaid order, dated 3.1.1989 was rejected by the.Secretary; Irrigation &Power (i.e. The respondent No.3) vide his letter, dated 5.10.1989 (Annexure-D). Consequently, the appellant assailed the said order through the instant appeal before this Tribunal.
3. The contention of the appellant is that he had passed the exaniinatin held on I6 & 17-12-1987 vide order, dated 13.2.1988 whereas in the said examination, respondent No.4 namely Ahmad Nawaz was placed in compartment in Paper-I. According to him, therefore, he was entitled to promotion as SDC on regular basis with effect from 13.2.1988 keeping in view a large number of precedents whereby the officials having passed the SDCs examination and having become eligible for promotion as SDC were promoted as such from the date the result of the examination was notified.
He asserted that there was no justifieation in .Delaying his promotion and in promoting him after the respondent No. 4 Ahmad Nawaz had also passed his examination.
4. The leamed counsel for the appellant urged that the impugned orders were fit to be set aside as the appellant had been subjected to discrimination vt-a-riz those who had already been promoted as SDCs from the date of the announcement of the result.The learned counsel stated that the appellant was junior to respondent No. 4 namely Ahmad Nawaz. However, since Ahmad Nawaz had failed in the aforesaid examination at a the when the appellant had passed it. It was incumbent upon the respondent No. 1,2 and 3 to have ordered his promotion as SDC. He avered that ostensibly the case of promotion of the appellant was delayed to-wait for the passing of the departmental examination by Ahmad Nawaz. The leamed counsel maintained that the appellant had become entitled promotion on 13-2-1988 and once lie had become eligible for such promotion he should have straightaway been promoted. Finally, he raised the point that the appellant had become eligible for promotion on 13-2-1988 while the respondent No.4 Ahmad Nawaz was not eligible for such promotion on that date.. The promotion of the appellant could not have therefore, been delayed merely bcause an official (i.e. The Respondent No.4 ) senior to him had failed in passing the examination.His view was that there could be no competition between the eligible and non-eligible persons..
5. Appearing on behalf of the respondents, the learned District Attorney maintained that the respondent No. 4 had not actually failed in the examination but had only been placed in compartment in Paper-I, According to him. The appellant was given Acting Chaerge as SDO on 4.4.1988 and lie was given officiating promotion alongwith respondent' No. 4 vide order, dated 3-1- 1989 on the basis of the recommendations of the departmental promotion committee made in its meeting held on I O.I 2.1988. The learned District Attorney aserted that the respondent No.4 was senior to the appellant with the result that there was absolutely nothing wrong with the promotion of the appellant being regularised alongwith his erstwhile senior i. e.Ahmad Nawaz after the latter had passed the examination.
6. I have perused the record and have heard the arguments advanced on behalfof the parties.The facts of the case show that the promotion of Junior Clerks as SDC could be ordered only after they had passed the SDCs examination. That would imply that the passing of such examination constituted an essential pre-requisite for such promotion. This examination, therefore, actifally determined the eligibility of an official lor promotion as SDC. Consequently, once a Junior Clerk passes such examination, he would become eligible for promotion while an ofjfial who fails in that examination would be rendered in-e'ligible and the seniority of the latter would not given him an edge lor promotion over the former. This situtation is distinguishable from departmental examinations prescribed by Govt, for confirmation of officials on their posts as failure in a departmental examination would not have the effect of eroding the seniority of an official vis-a-vis those who had passed it for the obvious reason that the civil servants are generally given as many as 3 chances to pass the departmental examination for confirmation and their seniority continues to be governed on the basis of the merit determined at the the of their recruitment or on the basis of their seniority in lower rank in the case of promotees unles a promotee had superseded someone senior to him in the lower rank tit the the of promotion.
7. In the instant case, the appellant passed the departmental examination making him eligible for promotion with effect from 13-2-1988.The fact that he was given Acting charge of the post on 4.4.88 shows that a vacancy was also available to promote the appellant as SDC at least from 4.4.1988 when he was given acting charge of the post of SDC. According to Rules l()-A(2) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, appointment *n Acting charge basis may be made if the "senior most civil servant belonging to the cader or service concerned wlio is otherwise eligible for promotion does not possess the specified length of service.... " ln the instant ease, the appellant was eligible for promotion and the respondents No. 1. 2 and 3 have nowhere in the written objections pointed out that he did not possess the specified length of service., It is, therefore, established beyond any shadow of doubt that the appellant was deprived of officiating promotion as SDC with effect from 13.2.1988 and he was given acting charge of the post from 4.4.1988 although there was no point in giving him Acting charge of the post instead of regularly promoting him as such, lt is strange that the respondent No.4 namely Ahmad Nawaz, was given Acting charge as SDC although having failed in the examination, he was not eligible to hold Acting charge of the higher post keeping in view the fact that under the Rule quoted'above, a civil servant must be.Eligible for promotion, the only shortcoming' necessitation the grant of Acting charge being the lack of specified length of his service. Mr. Ahmad Nawaz was in-eligible for the grant of Acting charge on 4.4.1988 and there was absolutely no-justificartion for delaying the promotion of the appellant for almost one yea* merely because the said official i.e. Respondent No.4 had failed in the examination. Such a practice is likely to defeat the very purpose with which the departmental examination as a condition precedent for promotion to the higher posl is prescribed.If a junior civil servant passes the examination and a vacancy exists, he should at once be promoted to the higher post and the civil servant erstwhile Isenior to him should mark the till lie passed the examination for promotion to the hegher post.
8. In. View of the foregoing discussion, I allow the appeal, set aside the impugned orders, dated 5.10.1989 and direct that the appellant shall be promoted with effect from the date of passing the departmental examination for promotion as SDC i.e. 13.2.1988 or from the date of availability of a vacancy ofSDC whichever be latter in partial modification of the order, dated 3.1.1989. He shall also be entitled to all the back benefits on account of such promotion.
9. The parties shall bear their own costs.