' AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 12-4- 1993 passed by the Sindh Service Tribunal, Karachi, hereinafter referred to as the Tribunal, in Appeal No,35 of 1992, filed by the appellant for claiming back benefits, dismissing the same.
2. Leave to appeal was granted to consider, as to whether the appellant is entitled to any financial benefits flowing from the Notification dated 29-9-1991 assigning him seniority in the absence of retrospective promotion.
3. The brief facts are that the appellant held three years Diploma in Civil Engineering. He joined the Provincial service as an Overseer on 8-11-1952. He was promoted as a Sub-Divisional Officer on 18- 5-1954. On a reference from the then Provincial Government of West Pakistan, the West Pakistan Public Service Commission had agreed to the appellant's promotion to the unclassified Gazette post of Sub-Divisional Officer up to 16-8-1964 and Class II post (temporary) from 17-8-1964. It was the grievance of the appellant that his correct seniority was never determined. He continued to make efforts for getting his seniority over all those persons who at the time of their appointment as well as confirmation in service did not possess the prescribed qualification. It seems that in May, 1990, the appellant came to know that his appeal dated 27-1-1981 had been accepted by the Chief Secretary, the decision in respect of which was conveyed to the appellant through Memo. Dated 1- 10-1990 by the Secretary, Communication and Works Department. By the aforesaid Memo. S & GAD' s advice dated 14-4-1990 was forwarded to him indicating that his appeal had been allowed and he was assigned seniority over all those Assistant Engineers who acquired the prescribed qualification of Diploma after his' appointment. Pursuant to the above advice of S & GAD, the appellant was assigned seniority immediately above Mr. Dattar Dino Shaikh, Xen through Notification dated 29-9-1991. The aforementioned notification was issued after the appellant had already retired from service on 16-12-1990 on reaching the age of superannuation.
4. Upon receipt of a copy of the above notification, the appellant made an application dated 12-10- 1991 to the Secretary. Communication and Works Department, praying for allowing the benefits accrued to him from the said notification. However, his request was not acceded to and he was accordingly informed by the Communication and Works Department's Memo. Dated 23-12-1991.
After that the appellant preferred a departmental appeal without any success as the same was rejected on 24-3-1992. He filed the aforesaid service appeal on or about 25-4-1992 in the Tribunal.
However, the same was dismissed for the following reasons:-- "On its perusal, it was revealed that apart from fixation of his seniority, the appellant had prayed for retrospective promotion also. In this connection the relevant portion of the appeal is reproduced as under:-- '18. The following relief may be granted to me--- (1)
(2)
(3) that the appellant be given promotion to BS-18 as Executive Engineer and promoted retrospectively with effect from the date when all the above-named his other juniors were promoted in BS-18.
(4)
' Despite his specific request for retrospective promotion to BS-18, the order passed on the appellant's appeal was silent in this regard, and some omission amounted to rejection of his request for the said promotion. This being the position, the appellant should have preferred departmental appeal against the order dated 14-4-1990 relating to retrospective promotion. But he chose to ignore that aspect of the said order. Having adopted such attitude the appellant was not entitled to agitate for his retrospective promotions in his subsequent departmental appeal filed after about two years, on 22-1-1992. Because it was also barred by the principle of res judicata. For these reasons we find some force in the argument that the appeal was time-barred.
' The upshot of the above discussion is that appeal must fail. Accordingly it is dismissed with no order as to costs."
' Thereupon, the appellant filed a petition for leave to appeal which was granted to consider the above question.
5. In support of the above appeal Mr. M.M. Aqil, learned Advocate Supreme Court for the appellant, has vehemently contended that since the department rectified its legal error in not assigning proper seniority for no fault of the appellant by issuing the aforesaid notification dated 29-9-1991 whereby the appellant was given seniority immediately above Mr. Dattar Dino Shaikh, Xen, he was entitled to all the financial benefits which would have accrued to him if he would have been assigned correct seniority at the proper time. To reinforce the above submission, Mr. M.M. Aqil has also urged that a civil servant cannot be made to suffer on account of inaction, omission or error on the part of the department concerned. According to him, the appellant would have been promoted as Xen before Mr. Dattar Dino Shaikh, Xen, over whom the appellant was given seniority by the aforementioned notification and that the appellant would have also been entitled to have been considered for promotion as Superintending Engineer prior to his juniors as his A.C.Rs, were unblemished.
6. In support of the above submissions, Mr. M.M. Aqil has referred to the case of The Province of the Punjab through the Secretary, Services and General Administration, Lahore v. Syed Muhammad Ashraf (1973 SCM R 304), to the case of Syed Sultan Shah v. Government of Baluchistan and another (1985 SCM R 1394), to the case of Mrs. Aqeela Asghar Ali and others v. Miss Khalida Khatoon Malik and others (PLD 1991 SC 1118) and to the case of Abdul Jabbar Khan v. Government of Sindh through Chief Secretary, Karachi and 5 others (1996 SCM R 850).
' In the first case this Court, while declining leave against the judgment of the erstwhile High Court of West Pakistan (Lahore Bench), held that in the case of a civil servant who, for no fault of his own, is wrongly prevented from rendering service to the State in the higher post to which he is admittedly entitled, he should be given salary for the higher post.
' In the second case, a Full Bench of this Court headed by the then Chief Justice, Muhammad Haleem, reiterated the above principle of law enunciated in the case of The Province of the Punjab v. Syed Muhammad Ashraf (supra) as under:- "7. The law on the point has already been laid down by this Court in The Province of Punjab v. Syed Muhammad Ashraf 1973 SCM R 304 and other connected cases in which pro forma promotion had been ordered and the pay was being denied. The argument advanced by the Provincial Government in those cases was also that the officials concerned were not entitled to arrears of salary in the grade against which they had never worked. This Court approved the view taken by the High Court that in case a civil servant, who for no fault of his own is wrongly prevented from rendering service to the State in the higher post. The decision fully governs the case in hand and the appellant was entitled to the salary in spite of Fundamental Rule 17."
' In the third case it has been held by this Court that a pro forma promotion from a date in retrospect would entitle a civil servant to claim pay for the period he was improperly denied his legal right of promotion.
' In the last case, which is one of the latest on the point in issue, this Court has held as under:-- "The aforesaid clause (iv) of rule 13 is the amended version, which was so amended by Notification No,SOIX-REG (S&GAD) 2/1/1-74, dated 9-9-1976. It clearly provides that a civil servant, who was not considered for promotion for any reason other than his unfitness for promotion, is subsequently promoted subject to any order made by the competent Authority in this behalf for the purpose of inter se seniority in the higher grade, shall be deemed to hav,e been promoted in the same batch as his juniors. If a civil servant, who has not been considered for promotion at a stage and is subsequently promoted and no order for inter se seniority has been passed by the competent Authority, then such civil servant would be entitled to have been promoted in the same batch as his juniors, meaning thereby that he will maintain the seniority of his batchmates. Merely because of non-consideration for any reason, he will not be deprived of his seniority among the civil servants promoted in the same batch, who may even be junior to him. The appellant was not considered as it was alleged that there was an adverse remark in his A.C.R. For the year 1972. The appellant challenged that this adverse A.C.R. For the year 1972 was never communicated to him.
The respondents have not brought anything on record at any stage to prove that such adverse remarks were duly communicated within the time contemplated by the Rules. Non- communication of adverse remarks makes the authenticity of such remarks completely ineffective.
On thebasis of such uncommunicated remarks, a civil servant cannot be subjected to any adverse order. Therefore, the entire ground for not considering the appellant while promoting respondents Nos.4 and 5 was completely without any basis and legal justification. Rule 13 (iv) of the aforesaid Rules is wide enough as it speaks of non-consideration due to any reason, which has not been specified at all. The only restriction is that the authority must pass an order for inter se seniority at the time of promoting out of turn while not considering a civil servant for any reason. The respondents have not passed any such order to comply with the provision of rule 13(iv) and were, therefore, not justified in not considering him along with respondents Nos.4 and 5. The appellant when considered and promoted in Grade-18, shall maintain his seniority as provided by rule 13(iv).
To this extent the appeal is allowed."
7. All the above cases support the appellant's claim to the effect that he is entitled to the financial benefits on account of proper assigning of seniority to him through the above notification. It may be observed that prior to his retirement on 16-12-1990, the appellant had already been promoted as Xen. Since he was given seniority over Mr. Dattar Dino Shaikh, Xen, through the aforesaid notification dated 29-9-1991, it must, therefore, follow that the appellant would be deemed to have been promoted with Mr. Dattar Dino Shaikh as Xen. The appellant would, hence, be entitled to the financial benefits for the period commencing from the date when the appellant should have been promoted up to the date when he was actually promoted.
8. As regards his promotion as a Superintending Engineer, we may observe that we are conscious of the fact that it is a selection post but, at the same time, we cannot overlook the fact that if a civil servant has unblemished record of service and his A.C.Rs, are good, lie is normally selected for a higher post on account of his seniority-cum-fitness. The case of Abdul Jabbar Khan v. Government of Sindh (supra) on all fours is applicable to the case in hand. We would, therefore, direct the respondent department to place the appellant's case before the departmental promotion committee with all the relevant A.C.Rs,, which would consider the appellant's case for promotion as a Superintending Engineer. If it forms the view that in normal course the appellant would have been prompted as a Superintending Engineer if he would have been given his correct seniority at the relevant time, the department shall give him pro forma promotion as a Superintending Engineer with effect from the date when his junior was promoted as a Superintending Engineer before his retirement on 16-2-1990 and would cause the payment of the financial benefits arising therefrom.
The department shall finalize the above matter within six months.
9. The appeal is, accordingly, allowed in the above terms, with no order as to costs.