1. TANVIR AHMED KHAN, J.---This petition is directed against the judgment dated 7-7-2001 passed by the Federal Service Tribunal, Islamabad (hereinafter referred to as the Tribunal), whereby the petitioner's claim that he be granted seniority with back benefits as Assistant Director with effect from 26-4-1991 when respondents Nos.4 to 6, his juniors, were promoted as such, was rejected. This case has got a chequered history. The facts succinctly stated for the disposal of this petition are that the petitioner was recruited as an Inspector (B-16) on 12-6-:1986 in the Federal Investigation Agency (F.I.A.) While working as such during the year 1991 his name appeared at S.No,22 of the seniority list. On the occurrence of vacancies of Assistant Director (B-17) in the F.I.A., respondents Nos.4 to 6 were promoted as Assistant Directors vide Notification dated 26-11-1991 in spite of the fact that in the seniority list the said respondents stood at S.Nos.34,.44 and 78 respectively much below the petitioner. The petitioner, who was admittedly holding senior position at S.No,22 of the seniority list, was neither considered for promotion nor even any reason was assigned for his non-consideration. The then D.P.C. By surpassing the long-standing principle of seniority/fitness, in an arbitrary manner, recommended the promotion of the aforesaid respondents ignoring the principle of law and the rules. After exhausting the departmental remedies the petitioner approached the Tribunal by tiling an appeal on 21-4-1992. The Tribunal through its judgment dated 13-4-1993 disposed of the matter directing the competent authority to consider the case of the petitioner. The relevant observations are as under:-- "At this stage, we can neither go into the question of .Fitness or otherwise of the appellants, nor can set aside the impugned notification of promotion of the respondents, but since the request of the appellants appears to be reasonable, we direct the competent authority to consider the cases of the appellants on merits and according to law, for promotion in case it has not been done after 1989 and this exercise, in view of the above observations, may be completed within three months." Despite the above direction the department did not pay any heed to the matter. Faced with this situation, the petitioner filed Miscellaneous Application No,229 of 1993 for implementation of the order dated 13-4-1993 of the Tribunal. This application was dismissed by the Tribunal on 12-1-1994 with the following remarks:-- "2. We have perused the record produced by the respondent department whereby it is clear that the cases of the appellants were examined along with others, by the D.P.C., in pursuance of the judgment of the Tribunal, but they could not be promoted for want of regular vacancy. We are satisfied that the judgment of the Tribunal has been implemented and the miscellaneous application is misconceived and is accordingly dismissed." (Underlining is ours). The appellant thereafter tiled Petition -for Leave to Appeal No,C.P.S.L.A. No,107 of 1994 before this Court, which was dismissed on 10-5-1994 with the following remarks: There is nothing on record before us to reach the conclusion that the petitioners were not promoted in spite of vacancies in the Department. On the contrary, on our query the learned counsel for the petitioners admitted that after the order of Tribunal dated 13-4-1993, no one has been promoted by the Department in BPS-17, However, if the petitioners feel sure that there are vacancies in the Department, they may approach the Departmental Authorities for action according to the order of Tribunal dated 13-4-1993 and upon their refusal follow the necessary course. No case for interference with the order of Tribunal is made out. The petitions are dismissed and leave is refused." Thereafter, the petitioner moved another Miscellaneous application No,94 of 1994, which was also disposed of vide order dated 20-7-1994 of the Tribunal in the following terms:- "2. We have heard both the parties. The representative of the respondent-department, has stated that the D.P.C. Was held in pursuance of the Tribunal's judgment dated 13-4-1993, and appellant's case was considered but he could not be promoted as no regular vacancy was available. He also placed minutes of the meeting before the Court. He further stated that the appellant will be promoted as and when vacancy will occur. We are, therefore, satisfied that the judgment of the Tribunal has been implemented. The miscellaneous petition is, therefore, rejected." (Underlining is ours). Subsequently, the department published a seniority list wherein the petitioner was shown at S.No,18 whereas respondents Nos.4 to 6 were shown senior to him. He challenged the implementation of said seniority list through a Writ Petition before the Lahore High Court at Rawalpindi which was disposed of vide its judgment dated 21-6-1996. It is pertinent to mention over here that in the meantime nine other Inspectors, who were admittedly senior to him, were promoted as Assistant Director by the D.P.C. In its meeting held on 29-3-1995. Thereupon, he filed Miscellaneous Application No,96 of 1995 to the effect that the department had made a commitment as reflected from the above-quoted order of the Tribunal dated 20-7-1994 that he would be promoted as and when a vacancy occurred. Since the commitment made by the department had been violated despite occurrence of clear nine vacancies, the above Miscellaneous Application was dismissed by the Tribunal through its judgment dated 23-7-1995 as admittedly nine Inspectors, who were promoted, were senior to the petitioner.
2. The petitioner, being dissatisfied with the above order, moved another Miscellaneous Application No,128 of 1995 which was withdrawn by him. Thereafter, he tiled Appeal No,315-R of 1995 on 1-8-1995 inter alia alleging that the judgment of the Tribunal dated 13-4-1993 had not been implemented in letter and spirit and prayed that his promotion be considered from the date when his juniors i,e, respondents Nos.4 to 6 were promoted. This appeal too was dismissed by the learned Tribunal vide judgment dated 4-4-1996. The petitioner assailed the above judgment before this Court through Civil Appeal No,447 of 1997 which was accepted on 2-6-1998 with the direction to the department to re-examine his case in accordance with law for being promoted to B-17. The relevant observations of this Court are as under:--
6. ....In this case, of course certain persons senior to the appellant were promoted, but we have also noticed that some junior officers to the appellant were also promoted by ignoring the appellant.
3. What was the basis therefore, the record is not self-speaking. As already observed, it was the bounden duty of the departmental promotion committee to examine the merits of each of the candidates ignoring the appellant and if at all the appellant was to be ignored, there should have been some basis for the same. We would further refrain to go into the merits of the appellants and the other officers because this is the function of the departmental promotion committee.
7. Resultantly, we have no option, but to allow these appeals with the direction to the respondents to re-examine the cases of the appellants in all these three appeals in juxtaposition with those of the respondent officers and others, if any, for considering their merits for being promoted to a post in BPS-17." Subsequent to the judgment of this Court, D.P.C. Convened its meeting whereafter vide notification dated 22-5-1999 the petitioner alongwith others was promoted as Assistant Director in B-17.
4. Thereafter, he received a seniority list dated 5-10-1999 wherein his name was placed at S.No,38 whereas respondents Nos.4 to 6 were shown to have been senior to-him. He made a representation and thereafter he was constrained to file Appeal No,426-RCS of 2000 before the Tribunal claiming seniority with effect from 26-11-1991 i,e, the date when respondents Nos.4 to 6, who were admittedly junior to him, were promoted as Assistant Director. This appeal was dismissed by the Tribunal vide its judgment dated 7-7-2001. Impugned herein. Hence, this petition for leave to appeal. It is argued by the learned counsel for the petitioner that the petitioner was not considered for promotion to the post of Assistant Director (B-17) at all in spite of the fact that respondents Nos.4 to 6, who were admittedly junior to him, were promoted as Assistant Director. The case of the petitioner was neither considered nor any reason whatsoever came on record for his non- consideration in spite of his unblemished record of service. Subsequent to the above, the petitioner incessantly approached the department but he was not given promotion for want of a regular vacancy. Ultimately after the direction of this Court vide its judgment dated 2-6-1998 he has been promoted to the post of Assistant Director by the D.P.C. In its meeting held on 22-5-1999. The only claim of the petitioner in this petition is that he be given seniority with effect from the date on which his juniors were promoted as Assistant Director i,e, 26-11:1991. Hafiz S.A. Rehman, learned Deputy Attorney-General appearing for respondents Nos.l. To 3, has opposed the petition stating that the petitioner's case for seniority was fully considered by the D.P.C. In its meeting held on 14-2-2002. Since, according to him, juniors of the petitioner were promoted as far back as on 26-11-1991 and have remained so till date, as such it would be creating difficulty for the department to upset the seniority at this juncture. However, the D.P.C. Has decided that since the above respondents were promoted by ignoring the principle of seniority/fitness, their further promotion may be frozen till such time their seniors are considered for promotion including the petitioner. It was further observed by the .D.P.C. That in case the petitioner as well as those junior to him were given their appropriate places in accordance with the seniority list of 1991, that would not, be possible as it would involve creation of additional posts of Assistant Directors involving huge expenditure. In nutshell, the D.P.C. Decided to freeze further promotion of the respondents who were promoted out of turn till such time the petitioner and others who were senior to them were promoted to the next rank. Respondent No,4, who is present in, Court, conceded the claim of the petitioner.
5. We have considered the contentions advanced by the learned counsel for the parties and have gone through the entire material placed on record with their assistance. We must observe at the very outset that the learned Tribunal has not at all considered the case of the petitioner in its depth so as to resolve the controversy in issue. The petitioner has mainly been non-suited on the ground that his appeal was hit by the principle of res judicata. It is reflected from the aforesaid resume that the petitioner, who was bypassed by the D.P.C. Without any reason while promoting respondents Nos.4 to 6 out of turn in clear violation of law and rules, was promoted after the judgment of this Court rendered on 2-6-1998. As reflected from the documents subsequent to the above judgment, the D.P.C. Convened its meeting and promoted him as Assistant Director (B-17) vide notification dated 22-5-1999. Thereafter, a seniority list was issued wherein he was shown at S.No,38 while respondents Nos.4 to 6 were shown much senior to him. This question of seniority was not at all considered by any forum after 1999. We fail to understand how the Tribunal has dismissed the petitioner's appeal on the issue of seniority on the ground of res judicata as this issue of giving him seniority at the appropriate place cropped up after his due promotion after 1999 was not dilated upon. It is the bounden duty of the Courts to decide the cases on merits in accordance with law and the rules. The Courts, while dispensing justice, are duty bound to apply the provisions of law in their true perspective and application of the same cannot be avoided simply on the ground that the said provisions of law were not brought to their notice by the parties. We are fortified in this regard from an earlier illuminating judgment of this Court in the case of Board of Intermediate and Secondary Education, Lahore through its Chairman and another v. Mst. Salma Afroze and 2 others (PLD 1992 SC 263) where it was held as under-- "18. The learned counsel who represented the respondents in the High Court by not bringing to the notice of the High Court the law laid down by this Court on the subject did not render good service to their clients. Besides, it has been laid down by this Court in Muhammad Sarwar v. The State (PLD 1969 SC 278) that a Judge must know the adage that a Judge must wear all laws of the country on the sleeves of his robe and failure of the counsel to properly advise him is not a complete excuse in the matter."(Underlining is ours).
6. It is a trite law that a civil servant on his promotion would rank senior in the seniority list with effect from the date when the persons junior to him were promoted unless he was earlier superseded. In the case in hand admittedly the petitioner was senior over the aforesaid respondents. The 13:P.C.
7. Without considering his case and without advancing any reason promoted respondents Nos.4 to 6 against all canons of justice. There was absolutely no reason whatsoever for not considering the petitioner for promotion at the juncture when his juniors were being considered for the same. The failure on the part of the department to consider the petitioner for promotion has caused an illegality which took quite some time to be cured. The determination of the D.P.C. In its meeting held on 14-2-2002 is also against all canons of justice. According to the D.P.C. Respondents Nos.4 to 6, who were admittedly junior to the petitioner and were promoted out of turn, would rank senior in the list of Assistant Directors till their further promotion while the petitioner would be having lower position in the seniority list. The D.P.C. In its wisdom has frozen the further promotion of respondents No,4 to 6 till the time the petitioner's case was considered for further promotion from the rank of Assistant Director. This approach of the department is fallacious. The petitioner should not suffer for the commission of illegalities committed by the earlier D.P.C. Which did not consider his case for promotion in spite of the fact that he was admittedly senior to respondents Nos.4 to 6 having unblemished record of service. He has already suffered for more than a decade for no fault of his own when his juniors were promoted out of turn. The petitioner cannot be kept junior to respondents Nos.4 to 6 in the seniority list keeping in view the circumstances of the present case.
8. Reliance in this respect is placed upon Kabir Ahmad Khan v. Government of Punjab (1990 SCM R 1417). Resultantly, for what has been stated above, this petition is converted into appeal and allowed setting aside the judgment of the Tribunal impugned herein. However, there will be no order as to costs.