' ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---Appellant Mr. Muhammad Akhtar is presently working as Solicitor (BPS-20) in the Law and Justice Division. He was promoted from the post of Deputy Solicitor vide Notification, dated 8th August, 1995 and this promotion was subject to complete training course of NIPA. His case is that the post of Solicitor (BPS-20) fell vacant on 30-6-1991 when the contract of Mr. S.A.M. Wahidi was over and since the post was to be filled 100% by promotion and he being fully eligible for promotion as Solicitor, is entitled to ante-dated promotion from that date as his case was not deliberately processed in spite of directions of the higher authorities.
2. The appellant argued his case and submitted that the post of Solicitor is 100% by promotion, but he was deprived promotion as contract was given to Mr. S.A.M. Wahidi contrary to the rules. He submitted that he was fully eligible for the said post and he made so many representations but with no result, and due to some difficulties he could not come before the Tribunal but since he has now been promoted, his promotion may be antedated as Solicitor (B-20) from the date he was eligible and post was lying vacant. He has referred to 1993 PLC (C.S.) 1404 and submitted that directions be issued to the respondents to issue notification for ante-dated of his promotion.
3. Notices were issued to the respondents and they have filed objections. The Law and Justice Division has filed comments and it has been stated that the post of Solicitor fell vacant on 1-7-1991 but the case of the appellant could not be processed due to missing A.C.Rs, for the years 1989, 1990, 1991, 1992 and 1993, but later on a certificate to this fact was placed on the record and thereafter, the case was referred to the Establishment Division on 26-10-1994. It has further been stated that after the expiry of reemployment period of Mr. Wahidi, the appellant was given current charge of the post from time to time for which he was duly paid Rs,1,100 p.m. And as soon as proposal for his regular promotion was approved, notification therefor was issued on 8th August, 1995 from the date of its approval. The Establishment Division in their comments have stated that there is no law whereby a civil servant could be promoted from the date of occurrence of a vacancy or from the date of his becoming eligible and, therefore, his request for grant of ante-dated promotion with retrospective effect was not tenable and rejected. At the time of regular hearing, the same arguments were reiterated by the learned counsel for the respondents.
4. We have considered the submissions of the parties. The appellant has now been promoted as Solicitor (BPS-20) in the Law and Justice Division, vide Notification, dated 8th August, 1995, with immediate effect. He was the senior most Deputy Solicitor and there is no denial that the post of Solicitor is to be filled 100% by promotion and it is admitted fact that he was eligible and qualified in all respects for that post. The post of Solicitor fell vacant on 30-6-1991 after termination of re- employment period of Mr. S.A.M. Wahidi, but his case for promotion was not processed rather he was given current charge of the post of Solicitor. The case of the appellant is that he was performing the functions and duties of Solicitor on current charge basis since 1989 and being an eligible officer was entitled to ante-dated promotion against the vacant post of 100% promotion.
He prayed that his promotion be ante-dated from the date of his eligibility i,e, 1-10-1988 or in the alternative from 1-7-1991 after termination of re-employment period of Mr. S.A.M. Wahidi. There is force in the submission of the appellant because when the post of Solicitor fell vacant on 1-10-1988 and was to be tilled 100% by promotion, but arrangement of re-employment of one officer Mr. S.A.M.
Wahidi, without any cogent grounds, was made thus depriving the appellant of his legitimate right for promotion against promotion quota. But the appellant remained silent and Mr. S.A.M. Wahidi got re-employment and continued up to 30-6-1991. As such, we are not inclined to consider the claim of the appellant for the above reasons from 1-10-1988, but prima facie case from 1-7-1991 is made out and we have examined the record. One of the objections from the respondents is that his case was delayed because he had not undergone NIPA course. The record shows that the appellant did this course from October 1, 1995 to January 18, 1996 from NIPA, Peshawar. This is contrary to the objection of the respondents as the appellant had been promoted to BPS-20 much earlier vide Notification, 'dated 8th August, 1995, without having gone to NIPA and one of the conditions is that promotion is subject to the condition that he will complete the course. This could have been clone in 1991 when post fell vacant. The contention of the appellant is that he was never deputed for the said course therefore, without his fault he could not be punished, and also submitted that in spite of that, he was promoted and deputed after promotion to undergo the said Course which he successfully completed. We find force in his submission and on this ground the appellant could not be deprived of his legitimate right.
5. The Law and Justice Division have filed comments and paragraph 9(a) is relevant and is reproduced herein below: "...On expiry of the period of re-employment of Mr. S.A.M. Wahidi the current charge of the post of Solicitor was granted to Mr. Muhammad Akhtar with effect from 1-7-1991 which was further extended for three months that is from 1-10-1991 with the approval of the Minister for Law, Justice and Parliamentary Affairs. Thereafter, case was taken up for approval of the competent Authority for making a reference to the Establishment Division for placing the case of the appellant for regular promotion as Solicitor on 30-10-1991. The higher authorities did not accord approval to the said proposal."
It is thus clear that the case of the appellant was taken up in 1991, but the higher authorities did not accord approval for the said proposal, but no plausible explanation has been put forward from the respondents side. It is strange that though he was eligible and the post wag lying vacant for a long time, but his case was not sent to the Central Selection Board for four years and he is given current charge. The only objection put forward is that promotion to a particular post becomes effective from the date of approval of the competent Authority and not from the date the vacancy occurs or an officer becomes eligible. We are sorry we do not agree and would not give a licence to the functionaries to keep the case pending for submission to the C.S.B. At their pleasure for years and years without cogent reasons, and putting the civil servants into unnecessary litigation and causing mental torture to them. We are of the view that it is clearly a hard case when the appellant was eligible for promotion in 1988 but same person was brought in by way of re-employment, and his promotion which was to be made 100% by promotion was thus marred, and it is a clear violation of law and the promotion policy. The Law and Justice Division, in para. 9(c) of their comments, have stated that the appellant was given current charge of the post of Solicitor from time to time, viz. 1- 7-1991 to 30-9-1991, 1-10-1991 to 31-12-1991, 28-7-1994 to 27-1-1995, 7-2-1995 to 6-3-1995 and 17-5- 1995 to 7-8-199,5, and was allowed dual charge pay at the rate of Rs,1,100 p.m. For holding the current charge but it was not the redressed of his grievance. It appears that a reference was made by Mr. Justice Sheikh Riaz Ahmed, the then Secretary, Law and Justice Division to Secretary, Establishment Division on 24th October, 1994, the contents of the letter read as under: -- ' Subject: FILLING UP THE POST OF SOLICITOR (BPS-20) IN THE LAW, JUSTICE AND PARLIAMENTARY AFFAIRS DIVISION: ' My dear Secretary, ' A post of Solicitor (BPS-20) is lying vacant in the Law, Justice and Parliamentary Affairs Division since termination of the period of reemployment of Mr. S.A.M. Wahidi, Ex-Solicitor.
2. According to the notified Recruitment Rules, the post of Solicitor is required to be filled 100% by promotion and failing that by transfer/initial appointment. Mr. Muhammad Akhtar, a Deputy Solicitor (BPS-19) working against the said post since 9th April, 1987 is eligible to be considered for the subject post.
3. I shall feel highly obliged if his case is placed before Central Selection Board in its next meeting.
4. A.C.R. Dossier, I.C.P. Chart and Proposal Form for the Central Selection Board are annexed.
' With regards, Yours sincerely, (Sd.)
(Mr. )ustic Sh. Riaz Ahmed)
' Mr. Mazharul Hag Siddiqui, ' Secretary, ' Establishment Division, ' Islamabad.
The contents of the above letter indicate that all the formalities were complete in 1994 but in spite of that, the promotion case was not finalised. The stand of that the respondent department is that A.C.Rs, of the appellant for the years 1989, 1990, 1991, 1992 and 1993 were not available for various reasons, and that is why the case was not processed. We are sorry we cannot accept such kind of argument, as it was not the fault of the appellant. It is also interesting to note that on 3-4-1994 it was decided by the Law and Justice Division to place a certificate of missing A.C.Rs, on the C.R.
Dossier of the appellant and thereafter the case was referred to the Establishment Division for its submission to the Central Selection Board. It is a sad state of affairs as this exercise could earlier be completed rather than delaying the matter for such a long time. However, the Law and Justice Division vide its O.M. Dated 27th March, 1996, while forwarding the representation, recommended the case of the appellant to the Establishment Division, and it is reproduced as under:-- "No, F. 10(1)/93-A.I.
Government of Pakistan Ministry of Law, Justice and Parliamentary Affairs (LAW AND JUSTICE DIVISION)
Islamabad 27th March, 1996. OFFICE MEMORANDUM ' Subject: REPRESENTATION FOR ANTE-DATED PROMOTION AND FOR GRANT OF ARREARS OF PAY AND ALLOWANCES FROM THE DATE, THE POST OF SOLICITOR FELL VACANT IN THE MINISTRY OF LAW, JUSTICE AND PARLIAMENTARY AFFAIRS.
' The undersigned is directed to forward herewith a representation made by Mr. Muhammad Akhtar, Solicitor, of this Division for ante-dated promotion and grant of arrears of pay and allowances.
' It is stated that the officer was promoted as Solicitor with effect from 8-8-1995, vide this Division's Notification No, F.10(1)/93- A .1, dated 8-8-1995, whereas the post had fallen vacant on 1-7-1991, after termination of re-employment period of his predecessor, Mr. S.A.M. Wahidi. The case for promotion of the officer was delayed for want of missing A.C.Rs, for the years 1989, 1991 and 1992.
3. The Establishment Division are requested, to kindly consider the request of the officer for ante- dated promotion.
(Sd.)
(Abdul Qadir)
Section Officer.
' Establishment Division, (Mr. Sultan Khan, S.O.), Islamabad."
It is thus an admitted fact that injustice was done to the appellant, firstly when the vacancy of Solicitor was filled up by re-employment of Mr. S.A.M. Wahidi, contrary to the rules, as it was a 100% promotion post; and secondly the case of the appellant for regular promotion was delayed on one pretext or the other. We have also observed in so many cases that inordinate delay is caused in arranging the meetings of the Central Selection Board, with the result that the matters of promotions of the civil servants are delayed for no fault of theirs and subsequently, the points are raised that promotion is to be made from the date of approval by the competent Authority. May be so, but such delay is due to late steps taken by the functionaries, for which we suggest that the Establishment Division may take cognizance and issue necessary instructions that cases of promotions be expedited without delay to safeguard the interest of the civil servants, because promotes to be considered for promotion with effect from the date when vacancy in that quota becomes available, as held by Their Lordships in the case reported in 1985 SCM R 1158. We hold that the appellant was prevented, for no fault of his, to work on a higher post, and in view of the law laid down by the Humble Supreme Court reported in 1973 SCM R 304, is entitled to the pay of the higher post. Reference is also made to a decision of this Tribunal reported in 1993 PLC (C.S.) 1404.
6. Upshot of the above discussion is that we accept the appeal and hold that he is eligible for promotion of post of Solicitor (BPS-20) with effect from 1-7-1991.
7. No order as to costs.