MUHAMMAD RAZA KHAN (MEMBER).---The appellant was appointed as L.D.C. in WAPDA on 6-1- 1977. As a result of disciplinary action he was dismissed from service on 19-9-1982. The Service Appeal No,111(L) of 1983 was filed before the Tribunal which was decided vide judgment dated 20- 4-1988. The appeal of the appellant was accepted and the impugned order of dismissal was set aside. the appellant was ordered to be reinstated in service "without consequential benefits." The appellant was consequently reinstated in service and the intervening period between 22-9-1982 to 25-4-1988 was treated as extraordinary leave (without pay). Just after his reinstatement he filed an application for fixation of his seniority and vide order dated 3-11-1992 he was allowed seniority at serial No, 2-A in the seniority list of L.D.Cs. circulated in 1988. After fixation of seniority the appellant filed another representation that two officials junior to him have been promoted in the month of October, 1983 and, therefore, he asked for his promotion with effect from the said date. Vide yet another representation the appellant requested for his promotion with effect from 3-8-1983, the date when his junior Mirza Rashid Beg was promoted. These two representations for promotion of the appellant as U.D.C. with retrospective effect were rejected by the department vide final order dated 4-9-1995 in these words:-- "No, 31582/MDP/E.I/10/2612, dated 4-9-1995 The Chairman, Area Electricity Board, WAPDA, Gujranwala.
Subject: APPEAL FOR PROMOTION AS U.D.C. (REVENUE SIDE)
Ref: Your Office Letter No, 19317/EG/107, dated 16-4-1995.
The Court has reinstated Mr. Sher Muhammad, L.D.C. 0/0 the C.S.O. (P) Cantt. Sialkot, without consequential benefits, therefore, no benefit including the seniority and pro forma promotion can be allowed to him please."
This final order was allegedly communicated to the appellant vide endorsement dated 24-4-1996 which has been challenged by this service appeal filed on 26-5-1996.
2. The respondents contested the appeal. Comments were filed on 23-7-1996. The case was fixed for regular hearing on 24-7-1996 which was adjourned to 19-8-1996. On 19-8-1996 the appellant with his counsel was present. There was none on behalf of the respondents. At 11-30 a.m. when the case was taken-up for hearing neither the representative of the respondents nor their learned counsel was present. A person stating himself to be an ex-clerk of the counsel for the respondents appeared with a request for adjournment. There was neither any application from the learned counsel nor a request on behalf of the respondents through any of their representative. The ex- clerk of an Advocate had no authority to represent the department or even to appear on behalf of the learned counsel. Hence ex parte 'arguments on behalf of the appellant were heard on the basis of the available record and the judgment was reserved with an opportunity to the respondents to file their written arguments if they so desire by 20-8-1996. The learned counsel for the respondents appeared on 20-8-1996, argued in the presence of the learned counsel for the appellant.
3. In this appeal the main issue is with regard to the interpretation of the term "without consequential benefits". The learned counsel for the appellant argues that according to his opinion the term means the payment of salary and other monetary benefits for the intervening period and the payment of the arrears for the said period. He further added that he believed that it did not affect the rights of a civil servant with regard to the seniority and promotion during the said period.
The matter is not that simple. The Appeal of the appellant bearing No, 111(L) of 1983 was accepted by the said judgment and the order of imposition of penalty of dismissal was set aside. However, consequential benefits for the intervening period were not allowed. This was a good case for appeal, because the consequential benefits could not be refused particularly when the order of dismissal was set aside with no alternative penalty, thereby it amounted to the acquittal of the appellant. However, since the appellant did not file further appeal, the said judgment attained finality and the appellant stood deprived of the consequential benefits for the said period. Vide an order dated 27-1-1992 the intervening period from 22-9-1982 to 25-4-1988 has been treated as extraordinary leave (without pay). Thus, the appellant can certainly neither claim any salary, allowances, and other monetary benefits for the said period but also stands deprived of all the benefits for the intervening period. The benefits cannot be restricted to the salary, other emoluments and arrears only. The term benefit' includes all the facilities, privileges, rights and other benefits arising out of service in a department and when the consequential benefits are not allowed to a civil servant for a particular period, he is deprived of all the benefits flowing from his service therein. This will include the salary, fixation of pay, seniority, promotion, earned leave, etc. That is why the intervening period has been declared as extraordinary leave (without pay) and the period spent on leave without pay is considered to be practically a break in service.
4. The learned counsel for the appellant maintained that the seniority is reckoned from the date of continuous officiating in a particular service, cadre or grade and since the appellant had been in service as L.D.C. with effect from 1977, therefore, his continuous officiating entitled him to retain his seniority. We cannot agree to the preposition because had it been that seniority is to be calculated from the date of officiating in a particular service or cadre, the appellant was certainly entitled to the seniority but the word 'continuous' makes the difference. The appellant has not been officiating as L.D.C. continuously from 1977 to date. There was a break from 22-9-1982 to 25-9-1988. Hence his officiating continued from 6-1-1977 to 21-9-1982 and 26-4-1988 to date. Since the continuity was disturbed, therefore, it cannot be said that he was holding the post continuously.
5. Similarly in case of promotion, a person is considered by the concerned Committee or Board for promotion on the basis of his continuous available record of service in the department. If a person is on deputation, he is not considered for promotion till he is repatriated and earns at least one report to become eligible for consideration for promotion. In case of deputations the civil servant continues to render service in public interest and even then he is not considered for promotion as a matter of right. When a person is on leave without pay, he is not supposed to earn recent A.C.R. and, therefore, cannot be considered for promotion during the said period.
6. The appellant was held by this Tribunal not to be entitled to consequential benefits and if he gets the benefits of pay fixation, seniority and even promotion during the said period or with retrospective effect, then there will be no fun of depriving him of the arrears of emoluments only.
Consequential benefits, therefore, are not restricted to the emoluments and their arrears but extended to every type of facilities and rights for the intervening period. He had not been in active service in 1983, therefore, he cannot be given pro forma promotion with effect from the said date.
7. Looking to the same situation from different angle we further hold that promotion is not a right of a civil servant and he can merely ask for consideration for promotion. Consideration is made on the basis of the available service record. A person on extraordinary leave (without pay) does not have the record in up-dated condition and, therefore, promotion cannot be considered with retrospective effect during the period when the appellant was not entitled to the benefits thereof.
8. There is another major defect in this appeal. The appeal under section 4 of the Service Tribunals Act pre-supposes the filing of departmental appeal/representation against the impugned order.
The appellant has filed two representation in this respect. The first was forwarded on 12-12-1992 whereby he challenged the promotion of Muhammad Mushtaq with effect from 10 of 1983 and asked for pro forma promotion with effect from the said date. The second representation forwarded on 14-12-1994 was with regard to the promotion of Mr. Rashid Beg ordered with effect from 3-8-1983. These representations were rejected by the impugned final order dated 4-9-1995.
Both the said Muhammad Mushtaq and Rashid Beg have not been impleaded by the appellant in the present appeal. On the other hand, those who were impleaded as private respondents at serial Nos. 4 to 13 were promoted on 31-8-1993 (respondents Nos. 4 to 9) and 7-2-1991 (respondents Nos.10 to 13). The appointment of both these batches has not been challenged by way of departmental appeal. Hence the appeal against the private respondents Nos. 4 to 13 shall be hit due to non-compliance of challenging their promotion by way of departmental appeal and thus the appeal to this extent will be not maintainable.
9. There is also another infirmity in the present appeal. The order dated 10 of 1983 has been challenged in appeal dated 12-12-1992 and the order dated 3-8-1983 has been challenged on 14- 12-1994 and, therefore, the departmental appeal was barred under section 22 of the Civil Servants Act, 1973. The learned counsel for the appellant argued that since the final order dated 4-9-1995 whereby the departmental appeal was rejected on merits and not on the technical grounds of limitation, therefore, the limitation may be deemed to have been waived by the department. The said decision dated 4-5-1995 has been allegedly conveyed to the appellant after eight months vide endorsement dated 24-4-1996 and, therefore, the appeal was stated to be within time.
Although there is no statutory provision authorising the department to condone the period of delay in filing the departmental appeal yet it can be considered to have been condoned on the principle of estoppel that the department rejecting the appeal on merits was estopped thereafter, to raise the issue of limitation. However, the estoppel against the department cannot be held to be an estoppel against private respondents. After the expiry of statutory period of thirty days from the date when the private respondents were promoted, they were invested with valuable right and this right cannot be taken away from them by the fault of the employer department or concession extended to the appellant. The private respondents were promoted on 31-8-1983 and 7-2-1991 and their promotion attained finality so far as the appellant is concerned after the expiry of thirty days respectively or at the most after the expiry of thirty days from 3-11-1992. Since the promotion of the private respondents Nos. 4 to 13 has not been challenged by departmental appeal as stated earlier and the present appeal filed on 26-5-1996 against their promotion dated 31-8-1983 and 7-2-1991 respectively was definitely barred by time.
10. Thus we hold that there is no force in this appeal which is accordingly dismissed with no order as to costs. However, it may be clarified that the period falling between 22-9-1982 to 25-4-1988 will be treated as a break in service and it will not deprive the appellant of the benefits of seniority and promotion on the basis of overall length of service prior to that and thereafter. The seniority will be calculated by excluding the said period and he can be considered for promotion accordingly.
11.Parties be informed.