' CH. MUHAMMAD ARIF, J.---The relevant facts as also the question of law involved in this case stand succinctly recorded in the leave granting order dated 19-11-1996, which reads thus:- "By order dated 21-12-1989, Ch. Muhammad Afzal respondent, Deputy Superintendent, Central Jail, Sahiwal was transferred and posted as Superintendent, District Jail, Sargodha in his own pay and scale. He was promoted as Superintendent. Jail (BS-17) vide order dated 1-9-1994. On his promotion, he submitted a departmental representation claiming that since he had been working as Superintendent Jail since 21-12-1989, he was entitled to be promoted with effect from the said date. His representation was rejected on the ground, inter alia, that 'As none of juniors to Ch. Muhammad Afzal was promoted, therefore, his case is not covered under the pro forma promotion policy'. He then preferred an appeal before the Service Tribunal which has been accepted with the observation that 'The learned D.A had no objection to the contention of the learned counsel for the appellant that the appellant is entitled to the pay and allowances, privileges and status of the post of Superintendent Jail w.e.f, the date he was actually working as such 21-12-1989."
(2) Learned counsel appearing in support of this petition has contended that the petitioner was senior to respondent No,1 but he was not made a party in the appeal filed by the said respondent.
Learned counsel has further submitted that the petitioner has no grievance in so far as the pay and allowances of the post of Superintendent Jail have been granted to respondent No,1 but the learned Tribunal has erred in conferring the status and privileges of the post of Superintendent Jail on the said respondent with effect from 21-12-1989 which amounted to granting him promotion from that date. This contention needs consideration. Leave to appeal is accordingly granted.
Operation of the impugned judgment of the Tribunal to the extent that it granted the status and privileges of the post of Superintendent Jail to the respondent is suspended."
2. Ch. Mushtaq Masood, learned Advocate Supreme Court for the appellant has reiterated the pleas noticed in the leave granting order to the effect that:---(i) his client was senior to respondent Ch. Muhammad Afzal but was not made a party in the appeal before the Punjab Service Tribunal, hereinafter referred to as the Tribunal, (ii) he has no grievance in so far as the pay and allowances of the post of Superintendent Jail have been granted to respondent Ch. Muhammad Afzal, and (iii) the Tribunal is in error in conferring the status and privileges of Superintendent Jail on respondent No,1 w.e.f, 21-12-1989, which amounts to granting him promotion from that date.
' In addition to the above points, the learned counsel has also objected to the Tribunal proceeding with the conferment of the status and privileges of the post of Superintendent Jail on respondent Ch. Muhammad Afzal on the alleged concession made by the learned District Attorney to the effect that respondent No,1 "... Is entitled to pay and allowances, privileges and status of the post of Superintendent Jail w.e.f, the date he was actually working as such i.e, 21-12-1989". Referring to Explanation Ito the proviso to clause (b) of sub-rule (1) of rule 8 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, hereinafter referred to as 1974 Rules, it was contended that respondent No,1, being junior to the appellant in BS-16, his promotion to B-17 "... On ad hoc basis in the public interest, even though continuing later permanently in the higher grade, would not adversely affect the interest of his seniors in the fixation of his seniority in the higher grade." (Emphasis supplied). He has also referred to the admitted position that his client (as also another) was promoted on regular basis on 25-2-1992. Respondent No,1 (i) marked his time; (ii) did not challenge the consequential seniority position of the appellant, and (iii) made Departmental Appeal against the alleged refusal by the Department to promote him as above on 1-9-1994, only on 29-9-1994. After the rejection of his Departmental Appeal on 20-3-1995, the respondent filed Appeal No,267 of 1995 before the Tribunal on 12-4-1995, and that too without impleading appellant Ch. Mahmood Akbar as party.
3. The learned counsel referred to Muhammad Ramzan and others v. Member (Rev.)/CSS and others (1997 SCM R 1635) in support of his contention that the learned District Attorney was not possessed of any authority whatsoever to make the concession before the Tribunal to the effect that respondent No,1 (appellant before the Tribunal) was "...' entitled to the pay and allowances, privileges and status of the post of Superintendent Jail w.e.f, the date he was actually working as such Pl. 21-12-1989".. He pressed into service para.28, appearing at page 1668 of the Report in Muhammad Ramzan (supra), which reads thus:- "28. Thus, following the dictum in aforequoted cases and looking to glaring disregard of law and earlier decisions of this Court, we are inclined to hold that disposal of petition by Lahore High Court based on illegal and tainted concession of Settlement Department is devoid of lawful authority and subsequent direction for its implementation is equally coram non judice, as such has no binding effect."
4. Respondents in this case are ex parte.
5. The arguments addressed at the Bar in support of this appeal are not without force. It is not the case of anybody that the appellant was impleaded as party by respondent Ch. Muhammad Afzal before the Tribunal.
' Explanation I to the proviso to clause (b) of sub-rule (1) of rule 8 of 1974 Rules was not brought to bear by the. Tribunal upon the facts and circumstances of the instant case.
6. The Tribunal did notice the concession made on behalf of respondent No,1 before it (as appellant) regarding (i) out of turn promotion, and (ii) relaxation of rules being not applicable to his case. However, while noticing respondent's contention that the condition of 'own pay and scale' was illegal, it made a reference to the learned counsel of respondent Ch. Muhammad Afzal - having taken the following stand in his written arguments:-- ' "That according to the Government instructions dated 17-5-1982 and 17-8-1988 printed at pages 146 and 147 of ESTACODE, 1991 Edn. The condition own pay and scale has no meaning in law. Even according to the law laid down by the Hon'ble Tribunal in judgment dated 19-9-1994 in Appeal No,971 of 1993 upheld by Supreme Court in their judgment dated 6-12-1995 in Civil Petition No,137-L of 1994 and reported as 1996 PLC (C.S.) 627 an illegal stipulation of 'purely temporary' laid down in the order of appointment was , ignored and appointment was. Approved. Similar view has been taken by this Hon'ble Tribunal in judgment dated in cases of Noor Hussain and others (Inspectors Police) wherein the illegal condition 'ad hoc' imposed in promotion order was held to be illegal and promotion was held to be 'substantive.".
' We find that beyond reproduction of the above excerpt from the written arguments, the Tribunal did not proceed any further to resolve the issue even then. It was in the penultimate' paragraph of the impugned judgment that the Tribunal held as under:-- "7. The learned District Attorney had no objection to the contention of the learned counsel for the appellant that the appellant is entitled to the pay and allowances, privileges and status of the post of Superintendent Jail w.e.f, the date he was actually working as such i.e, 21-12-1989."
' The learned counsel is quite right in contending that the learned District Attorney had no authority whatsoever to make any concession as above in that it had all the potentialities of adversely affecting the rights of a substantial number of employees contrary to the very words of rule 8 (ibid). We are of the considered opinion that the Tribunal was in error of law in sanctifying the alleged concession of the District Attorney that the pay and allowances, privileges and status of the post of Superintendent Jail with effect from 21-12-1989 was the 'entitlement' of respondent Ch. Muhammad Afzal.
7. The above are the reasons for our short order of even date which reads thus:-- ' "For reasons to be recorded, the impugned judgment of the Punjab Service Tribunal is partially set aside and it is declared that the grant of the status and privileges of the post of Superintendent Jail B-17 with effect from 21-12-1989 to respondent No,1 shall not adversely affect the rights of the appellant, as also other Superintendents Jail in B-17 who are senior to respondent No,1.
"2. To the above extent the appeal is allowed with no order as to costs".