' MRS. SYEDA TAHIRA SAFDAR (MEMBER-II).---The appellant has filed abovementioned two appeals bearing No,37 of 1998 and 42 of 1998, as the appeals are interrelated while decision in one appeal will affect the other, thus in order tor avoid any contradictory order it will be just and proper to decide both the appeals through this joint order.
2. In Service Appeal No,37 of 1998 it is case of the appellant that he joined services as Senior English Teacher in Education Department on `16-4-1955, thereafter promoted as Headmaster on 28-5- 1968, afterwards as District Education Officer B-18 on 9-12-1981. In 1990 he was transferred and posted on an ex-cadre post as Assistant Professor (B-18) in Agro Technical Centre, while afterwards transferred and posted as Divisional Director of Education, Melo-an Division (B-19) at Turbot on acting charge basis on 1-9-1991.
3. It is further his case that the said post of Director of Education B-19 was upgraded to b-20 w.e.f 21-7-1991 through Notification dated 31-3-1993. Whereupon, he (the appellant) submitted a representation to the Department for grant of pro forma promotion in B-17 from year 1966, of (B-18) from 1968 and also pay of higher post in (B-20) for the period 1-9-1991 to 7-7-1992. In response to the same Finance Department only allowed 107 of pay of B-18 in his favour through Notification dated 15-12-1996. Further, the department failed to consider his claim and rejected his representation through letter, dated. 30-12-1997. On getting intimation about the same he (the appellant) refer Departmental appeal on 27-1-1998, but there is no response.
4. The appellant has prayed for setting aside of impugned order, and allowing him pay of higher post i,e, (B-20) for the period 1-9-1991 to 7-7-1992 on grounds that his claim is rejected illegally and without appreciating the factual position by the Authorities, which is also contrary to decision of Honourable Supreme Court of Pakistan.
5. Only respondent No,2 filed reply whereby raised contention that the appeal of the appellant was rejected while he was only granted pay of higher post of B-19 and 10% of B-18 for holding the post of Divisional Director of Education B-20. Turbat, on. Acting charge basis, as per instructions of Finance Department.
6. In second appeal bearing No,42 of 1998 appellant has raised contention that after completion of his services he was retired on attaining the age of superannuation w,e,f, 8-7-1992. But meanwhile on 18-10-1991 a new seniority list of members of Education Department (Men's Section) based on revised criteria i,e, length of service as S.E.T. With retrospective effect was issued, while number of concerned members was granted pro forma promotion with full benefits from the date of implementation of new criteria with retrospective effect. Feeling aggrieved of the same he submitted appeal on 6-11-1991, thereafter repeatedly approached the authorities but after lapse of five years no final decision has been taken in same respect. Whereupon he approached this Tribunal in 1996, the said appeal was remanded to the Department for taking final decision within a period of 120 days through judgment made on 12-6-1997. Despite the same the matter linger on while only reply bearing date 30-12-199? Received by him on 6-1-1998. Feeling aggrieved of the same he preferred departmental appeal but to no avail. The appellant claimed himself senior to that of members of the Department namely Tariqat Ali, Abdul Fahmid Khan, Abdul Wahab, Sultan Mehmood, Anwarullah Saddiq and Ejaz Ahmed Malik. The appellant has prayed for setting aside of impugned order, while his seniority position be corrected, which is to be fixed above the name of said Eajaz Ahmed. Malik.
7. In present appeal too only respondent No,3 filed his reply wherein he nearly admitted the claim of the appellant. In addition to the same only raised contention that the Department is placing the case of the appellant for pro forma promotion before Provincial Selection Board for consideration.
8. From perusal of record it is apparent that during course of proceedings the appellant was allowed to amend prayer clause through order made on, 11-9-1998. Whereupon the appellant filed amended prayer clause on 14-9-1998 None of the respondents filed any reply in respect of the same.
9. The appellant though retired on completion of his services w,e,f, 8-7-1992, but still he is fighting for his right since then, which is highly unfortunate, after lapse of more than 8 years he is still struggling for his rights, from which he has been denied. The appellant is claiming himself to be senior to six persons/members-of service whose names are mentioned in paragraph No,13 of appeal beairng No,42 of 1998, who have been given pro forma promotion on basis of revised criteria from retrospective effect with all back benefits. On basis of the same the appellant also claimed his pro forma promotion from Grade B-17 to Grade B-20 when his juniors were given promotion. The appellant has also prayed for grant of pay of higher post i,e, B-20 for period w.e.f 1- 9-1991 to 7-7-1992, during which he held charge of the post in B-20. The contesting respondent/concerned Department though A have objected the claim of the appellant in respect of his entitlement for the pay of the higher post. But as far as contention of the appellant in respect of pro forma promotion on basis of being senior, is concerned, the replying respondent has fully accepted/admitted the plea of the appellant. Rather in addition only raised contention that the case of the appellant for grant of pro forma promotion is under process and is placed before Provincial Selection Board. It is painfully noted that after lapse of so many years the Department/Authorities have failed to finalize the matter. Even on remand of the case the concerned Department has failed to decide the matter within prescribed time, thus violated the order of this Tribunal which is highly objectionable. Though in reply respondent No,2 has raised contention that the matter has been placed before the Board, but since institution of these appeals and uptil now the Department has failed to take any decision or step to redress the grievance of the appellant. This conduct of the Department/Authorities are highly objectionable and show their non-interest in their work.
10. The appellant claimed himself to be senior to that of mentioned six members of service namely Tariq Ali, Abdul Fahmid Khan, Abdul Wahab, Sultan Mehmood, Anwarullah Siddiqi, and Ejaz Ahmed Malik, on basis of the same he claimed pro forma promotion in grades B-17, 18, 19 and 20. This contention of the appellant about seniority is admitted by respondent No,2. In view of this admission there is no need to go into merits of the case and further discuss the matter. Rather in view of such admission the appeal pertaining to fixing seniority of the appellant and awarding him pro forma promotion is liable to be accepted.
11. As far as second appeal bearing No,37 of 1998 is concerned whereby the appellant is praying for grant of pay of higher post i,e, B-20 for the period 1-7-1991 to 7-7-1992, when he held the charge of post of Divisional Director of Education, Mekran Division Turbat B-20. As per record the appellant was in B-18 when he was transferred at said post through Notification dated 1-9-1991 on acting charge basis. It must be noted here that at said date the post was of B-19. While afterwards through Notification dated 31-3-1993 the said post was upgraded to B-20, while said notification takes effect from 21-7-1991. On issuance of the same the appellant though retired tried to take financial benefit in same respect, which had been accrued in his favour. In this respect a Notification was issued on 15-12-1996 whereby 10% of his (the appellant) original pay scale i,e, B-18 was granted to him. The appellant felt aggrieved of the same. In said connection his petition was rejected by the Department, whereupon he filed departmental appeal, which has not been yet decided. It is an admitted position that the appellant held the charge of said post (B 20) on acting charge basis and performed his duties as such w.e.f 1-9-1991 to 8-7-1992. Though the official respondents denied the right of the appellant and raised contention that impugned Notification dated 15-1-1996 was correctly issued.
12. Apart from the abovementioned contention of the respondent/concenied Department the verdict given by Honourable Supreme Court of Pakistan in petition titled as Islamic Republic of Pakistan v. Qazi Abdul Karim reported in 1978 SCMR page 289 is to be kept in mind wherein it is held that:-- "Employee promoted to officiate in a higher post involving higher responsibility. Held entitled to minimum pay of grade of higher posts."
13. In view of abovementioned verdict of Honourable Supreme Court of Pakistan, there is no need to further discuss the matter. Admittedly the appellant holds the post 'of higher grade with higher responsibilities, therefore, in view of abovementioned judgment he is very much entitled to the minimum pay of the grade of the said higher office.
14. In view of above _discussion both the appeals bearing Nos.37 of 1998 and 42 of 1998 are hereby accepted. The impugned order made on 30-12-1997 is hereby set aside being without merits. The appellant (Saleemul Haq) is declared senior to that of mentioned six persons namely Tariqat Ali, Abdul Fahmid Khan, Abdul Wahab, Sultan Mehmood, Anwarullah Siddiqi and Eajaz Ahmed Malik.
While his name is to be placed above the name of said Eajaz Ahmed Malik in final seniority list issued in 1991. The concerned Authorities/Departmnet are directed to do the needful and place the name of the appellant at correct place in the mentioned seniority list. As the appellant is declared to be senior to that of mentioned persons therefore, he is also entitled for pro forma promotion, which is granted in his favour in B-17 w,e,f, 29-9-1966 instead of 28-5-1968, in-B-18 w,e,f, 17-6-1968 instead of 9-12-1981 and in B-19 w,e,f, 30-5-1991 in place of move-over in B-19 w,e,f, 1-12-1984 alongwith all back benefits in same respect. As far as his claim to the extent of promotion in 8-20 is concerned, this prayer is not allowed as there is nothing on record that any of the juniors of the appellant including said Eajaz Ahmed Malik was promoted in B-20 during subsistance of his (the appellant) service. Moreover, the appellant is further entitled for D the minimum pay of higher post i,e, B-20 for the period 1-9-1991 to 8-7-1992. The concerned' Authorities/Department are directed to do the needful immediately.
15. Parties are left to bear their own costs. File after completion be consigned to record.