NASIM SABIR SYED (MEMBER).---The brief facts which are relevant to the disposal of this appeal are that the appellant who joined Railways service on 22-2-1960, now stands retired with effect from 23-1-1992 on attaining the age of superannuation. While in service, and employed as Station Superintendent since 31-5-1980 on regular basis the appellant was appointed to hold the current charge of the post of Assistant Transportation/Coaching independently in the Pakistan Railway Headquarters Office, Lahore in B-17 with effect from 17-2-1986. This posting was made keeping in view the seniority position in the relevant cadre vide Notice No.940-E/6(APO-V), dated 9-1-1986 as issued by office of respondent No.3 i.e. General Manager, Pakistan Railway. A seniority list was issued by the same officer under his letter-dated 6-5-1987 wherein the appellant was shown at S1.No.1. Subsequently the appellant was promoted to B-17 on correct charge basis vide order dated 5-6-1988. It was stressed that the the rolled by and despite the existence of regular vacancy in the prescribed 20% quota for departmental promotion under the relevant rules, the appellant was not considered for his regular appointment to B-17 vide letter dated 22-11-1992 of the respondent No.3.
The result of all this was that the appellant stood blocked at the maximum of B-17 in which he was employed as an extension of B-16 by way of move-over and not by promotion. As the appellant was not regularized in B-17, he was deprived of the right for move-over to B-18 from 1-12-1989 which was otherwise due to him under the relevant scheme forming S1.No.89 at pages 654--660 of ESTACODE 1989 read with cited case 1993 SCMR 609 because of the restrictive provisions of Rule 8- B(6) of the Civil Servants (Appointments, Promotion and Transfer) Rules, 1973. It was asserted that because of this had happened as the department had not decided the issue in reasonable the.
The overall effect is that he was deprived of move-over to B-18 from 1-12-1989 in spite of the fact that he was demanding the same from 15-11-1990. He was reminding the department through various letters and application but his claim was not held maintainable under Letter No.729-E/2468 (APO-V) from the office of respondent No:
3. Respondent No. Ts Note, dated 10-11-1990 as recorded in the relevant - file dealt with by the Assistant Personnel Officer-V,the relevant para of which reads as under:-- S.No.Name of categoryquota 40%20%
1. Traffic Inspector 4 2 2.Station Suptd. /S.M.5 2.5 3.Chief Controller 2 1 4.CYM 2 1 5.OS (Optg)/TWI 1 .5 6.NMIs 2 1
7. SRS/OS (Coral). 1 .5 ' At present the following persons are holding the posts of ATO/ACO as noted below:-- S.No.Name of categoryNo. of persons promoted Regular basis Acting basisIn own Pay Scale
1. T.Is. 2 3 5 2.CYM 1 1 3.CHC 1 2 2 4.SS/SM 1 6 5.OS 6.SRS 1
7. CMIs. 1 8.Commercial Supt. 6"
' It was claimed that it is evident from the above analysis, given in the Note, the sole reason for withholding the move-over from B-17 to B-18 of the appellant was unwarranted delay and inaction on the part of the Railways Administration, which was the result of keeping the appellant on acting charge basis when a regular vacancy was available. During all this the services of some officers who were junior to the appellant were regularized in B-17 taking no action in the case of the appellant, because of his retirement on 23-1-1992. Ultimately the appeal of the appellant against withholding of regularization his services in B-17 and move-over to B-18, was rejected under letter dated 9-7-1994 without assigning any explicit reason by the office of respondent No. 3. Feeling aggrieved against this order the appellant approached the Tribunal under Service Appeal No.203(L)/94 with the prayer:-- "(i)To regularise the promotion of the appellant from BS-16 to BS-17 with effect from the date of his promotion; (ii)to allow the appellant move-over to BS-18 from 1-12-1989; (i.e)to grant the special pay from 17-6-1986 to 28-5-1988, and (iv)to grant pension to the applicant after fixation of pay in the light of the regularisation and grant of move-over to BS-18."
The Tribunal in operative para 4 of its judgment held as under:-- "From the facts mentioned above the admitted position is that the appellant was the senior most Station Superintendent in BS-16 and had been allowed current charge and acting charge of the post in BS-17, which he continued to hold for quite a long period. He had also reached the maximum of BS-17 and was entitled to move-- over to B-18 with effect from 1-12-1989. There were to clear-cut vacancies in BS-17 in promotion quota which had become available in 1985 on the retirement of M/s. Khan and Ghulam Qadir Cheema and according to the promotion quota 2096 of the posts were to go to the share of the promotees but the appellant's appointment in B-17 was not regularised although the appellant had earned the eligibility there for and it was due to inaction of the respondents department rather his juniors were promoted on regular basis. The result was that the appellant had to retire having reached the age of superannuation without getting his due share or his legitimate right of promotion in B-17 and this was due to mockery of the respondent's department. His departmental appeal also failed and was rejected with to lines reply without observing the law laid down by the Honourable Supreme Court reported in 1991 SCMR 2330. Since neither the objections have been filed nor proper assistance was rendered at the hearing of the appeal to arrive at a just conclusion, we are of the view that this case is remanded to the respondent's department with the direction that the Secretary, Ministry of Railways may examine the case and settle the claim of the appellant after giving him personal hearing and pass appropriate and well-reasoned order in the light of the observations made in the preceding paragraphs and the law laid down by the Honourable Supreme Court in 1991 SCMR 2330. This exercise shall be completed within a period of to months and compliance be reported to the Tribunal. The appellant shall be at liberty to seek legal remedy in accordance to law if so advised.
With these observations, the appeal stands disposed of."
2. It was almost after a lapse of over four months that the appellant was given personal hearing on 1-8-1995 by respondent No. 2 in disregard of the direction of the Tribunal fixed the limit of to months vide Railway Board letter dated 5-7-1995 and when the appellant had himself brought the factual position to the notice of respondent No.2 under an application for this purpose. A miscellaneous petition was filed before this Tribunal vide Appeal No. 203(L)/94 complaining non-implementation of the operative part of its judgment dated 23-4-1995 by the respondent's department. The Tribunal disposed of the said miscellaneous petition/complaint/under its order dated 27-2-1996. In this order the Tribunal had observed that the question of promotion, move-over, fixation of pension etc. Were not adjudicated upon at the the of original appeal, therefore, the issue cannot be implemented. If so advised the applicant can seek the remedy for the unsettled claim in accordance with law. On this and according to advice given by the Tribunal a departmental appeal dated 26-3-1996 was addressed to the Prime Minister of Pakistan through Railway Board by registered post acknowledgment due under postal receipt No.84i, dated 27-3-1996.
3. It was contended by" the appellant rather forcefully that superannuation had nothing to do about the legal claim to be made for the service rendered before retirement. It was asserted that highest legal forum in the country had held that retirement is no bar to such claim. It was elaborated that in law there is no restriction on the regularization of promotion in service of retired employees and the treatment meted out to the appellant had to be rectified which was arbitrary, harsh and oppressive. It was further argued that matter pertaining to pay, move-over etc. Is a continuing wrong as held by this Tribunal repeatedly in 1984 PLC (C.S.) 386, 1984 PLC (C.S.) 1721, 1986 PLC (C.S.) 66, 1990 PLC (C.S.) 95, in Appeals Nos.40(R)/88 and 57 to 60(L)/93 and several other cases. According to the decision of the Supreme Court in PLD 1994 SC 233 and 1995 SCMR 18, the claim of the appellant is still valid.
4. The department on the other hand repeatedly referred to the retirement of the appellant in addition to raising the objection that the appeal is the-barred. As far as the issue of the-barred is concerned, we have already discussed this in the arguments given by the appellant and are satisfied that the case is in the because it is a case of continuing wrong to be done to the appellant. The department was quite emphatic that since the appellant had been retired from service, therefore, his case for promotion from ante-date is not maintainable. We do not agree with this argument of the department when there is ample proof available on record that the appellant was not promoted in the nor given move-over by the negligence by the department and not due to any fault of the appellant. Departmental lethargy is a serious offence more particularly so when it affects the earning right of an individual. If such lethargy and indifference is given legal cover, then we simply wonder how the department can be run properly and due rights of the subordinates granted at the proper the. This action of the department has resulted in long suffering of the appellant for no fault of his.
5. Keeping all these things in view and arguments from both the sides we are of the view that the appellant has been made to suffer not only monetarily but in prestige and self-honour also. A man who could have retired in B-19 after move-over was forced to retire in B-17. Such an humiliation inflicted upon the appellant without any rhyme and reason and which is by inefficiency of the department is highly regrettable. We hereby accept the appeal of the appellant and direct the department to take action on all the issues raised by him within to months with a report to this Tribunal of 'the action taken. We earnestly hope that this will be done within to months and not in the way the matter had been neglected previously.
5. The appeal succeeds to the extent and the manner discussed above.
6. No order as to costs. Parties be informed.