JUSTICE (RETD.) RIAZ KAYANI, CHAIRMAN.-- Bashir Ahmad Gurmani, retired Senior Headmaster has come in appeal, brining in challenge order dated 17.1.2004 passed by Special Secretary (Schools)
Education Department, Government of the Punjab, Lahore whereby proforma promotion to the appellant in BS-19 was refused.
2. Appellant was inducted in service as SV teacher through initial recruitment on 1.9.1962 in BS-7.
Thereafter he was appointed as SST/SET in BS-15 on 30.5.1975 and continued to serve in non- Gazetted grade till 31.5.1984, thereby rending a total non Gazetted service for a period of 21 years 08 months and 23 days. Appellant was thereafter appointed as lecturer in BS-17, after being selected by the Punjab Public Service Commission on 20.11.1984. On improving his qualification, he was yet again selected by the Punjab Public Service Commission, Lahore as Principal, Higher Secondary Schools/Elementary Teachers Training Colleges (M) in BS-18 in the Punjab Education Service (Schools Branch) (Male Branch) vide orders issued by the Governor on 19.12.1991. Finally appellant was promoted to BS-19 in the Education Department (school Wing-General Cadre-Men's Section) on acting charge basis vide notification dated 5.4.1994 with immediate effect. Appellant vide for regular promotion in BS-19 as he had the requisite qualification and service experience. The Punjab Civil Servants, Minimum length of Service for Promotion Rules, 1989, envisaged 12 years Gazetted service in basic scale 17 for promotion in BS-19, which according to the appellant he had rendered more than 15 years Gazetted service upto the end of 1993 as detailed below:-{{TABLE}} Non-Gazetted Service Calculation of period 5Y 5M 6D As SV & SET (teacher) from to 23.5.85 (21-Y-8-M 23-D)/1/4 Gazette Service 9Y 7M 8D As Lecturer, Headmaster ' & Principal from 24.5.84 to 31.12.1993. Total Gazetted service upto 31.12.1993. 15Y 7M 8D It is contended that the respondents did not bother to calculate the length of service of the appellant and only confined their calculations of service rendered in Grade 17 and Grade 18 without adverting to clause H of the notification dated 28.3.1989. Appellant went on to state that prior to his retirement his name was placed before the Selection Board for consideration for regular promotion but for reasons best known his record was not produced in the meeting of the Punjab Provincial Selection Board held on 29.8:2001. Consequently the case of the appellant was deferred due to non-availability of service record. Ultimately, the case of the appellant was placed before the Provincial Selection Board meeting on 14.11.2002 and in the remarks column of the deliberation of the board it was state that the appellant retired from Government service on 1.9.2002 on attaining the age of superannuation, therefore, his name was weeded out form the list.
Feeling aggrieved appellant filed a representation to the Chief Secretary, Government of the Punjab, Lahore for the redressal of his grievances, which however was rejected on 17.1.2004 on the ground that since he is retired from service without getting regular promotion to BS-19 during his service, therefore, he is not entitled for proforma promotion BS-19 as he ceases to be a civil servant.
3. Learned counsel for the appellant vehemently contended that the reasons given by the appellate authority for refusing the consider the case of the appellant for proforma promotion in BS-19 was inept, desultory and seeking support of a new policy, propounded by the executive on 19.4.2003, which could not be given retrospective effect to the date 1.9.2002 on which date the appellant retied on reaching the age of superannuation. It was further stated that on the recommendation of the Provincial Selection Board appellant was given promotion in BS-19 on acting charge basis w.e.f. 5.4.1994 instead of regular basis and some incumbent civil servants seeking redress from the Punjab Service Tribunal through Appeal No.. 1401/1997, decided on 14.10.1997 and Appeal No. 2986/1999, decided on 6.7.2001 succeeded to get a direction in the name of the respondents to re-calculate the' length of service of the appellants in the afore-mentioned appeals by including 'their previous service and thereafter to correct the promotion notification by deleting the words "acting charge basis" in the cases of all those appointments. Which were found, in re-calculation, to have completed the length of service but the department kept mum till the refusal vide the impugned order on cosmetic grounds. Ground of discrimination was also canvassed in defend by quoting precedent case in which junior colleagues were promoted in BS- 19 on regular basis placed in similar circumstances. Learned District Attorney, on the other hand, could not effectively controvert and refute the submissions of the learned counsel for the appellant, which were indeed weighty.
4. I have heard the arguments of the respective counsels and persuaded the record.
5. Comments submitted by the Special Secretary (Schools Education Department, Government of the Punjab, Lahore makes interesting reading. Para. 4, of the memorandum of appeal has been answered as under:- "As regard Para. 9, it is submitted that in pursuance of Punjab Service Tribunal judgment dated 6.7.2001 in appeal No. 2986/99, the cases in respect of all the teachers promoted on acting charge basis including appellant have already been forwarded to Confidential Wing of .S&GAD for grant of regular promotion to BS-19 since the date of eligibility under the rules by calculating their previous length of service. Notification in this regard will b issued in accordance with recommendations of Provincial Selection Board and approval of competent authority."
Para. 6 is also reproduced for facility of reference to show inconsistency in the stance taken-up by the respondents:- "Factual position has already been explained in Para. 4 above. However, the case for regular promotion to higher grade after the date of retirement of civil servant is not considered by the Departmental Promotion Committee/Provincial Selection Board. Representation of the appellant has been decided under the rules fairly and just."
To put-up in plain words in Para-4, it is stated that cases of all teachers promoted on acting charge basis, including that of the appellant have already been forwarded to Confidential Wing of S&GAD for grant of regular promotion to BS-19 since the date of eligibility under the rules by calculating their previous length of service. Strange enough in Para 6, it is state that regular promotion to higher grade after the date of retirement of a civil servant is not to be considered by the Provincial Selection Board and the representation of the appellant was decided under the rules fairly and justly. This being the case, the request of the learned District Attorney, after being brief by the Departmental Representative to postpone the hearing of the appeal till such date as the Provincial Selection Board seized of the matter decides the promotion cases including that of the appellant, is refused.
6. Be that as it may reply for the department in Para 4 to some extent concedes the view-point of the appellant that proper calculation was not made to determine the length of gazetted service of the appellant. According to clause II of the schedule of the Punjab Civil Servants, Minimum length of Service for Promotion Rules, 1989, where initial appointment of a person was made to posts in basic pay scale 16 or below, one half of the service in basic pay scale 16 and 1/4th in basic scale 15 and below shall be counted as service in basic pay scale 17 for computing the length of service for the purpose of promotion only in pay scales 18, 19 or 20. There is no denial of the fact, not at least by the respondents in their comments that appellant rendered more than 21 years service asSV and SET having been appointed through initial recruitment as SC in S-7 and 1/4th of this period comes to 5 years, 5 months and 6 days which shall be counted towards gazetted service and this period when added to 9 years, 7 months and 8 days of gazetted service in BS-17 and 18, the total comes to 15 years and 14 days, which is definitely more than the required period of 12 years necessary/essential/requisite to be promoted to BS-19. In other words on 5.4.1994 when the appellant was promoted on acting charge basis in BS-19 he was fully eligible to be promoted to the said grade in BS-19.
7. I see also eye to eye with the submissions made by learned counsel for the appellant that the latest policy of proforma promotion propounded by the executive through a circular on 19.4.2003 can never ever be given retrospective operation unless it is to be construed beneficial in favour of the civil servant. A circular by the executive conglomerate in rare cases can be termed as a legislative step. Can the said circular be given retrospective operation to adversely affect the rights of civil servant is something, which does not appeal to law, prudence, equity and good sense. This question has come-up in a number of cases in the recent past and in all such appeals, it has been held by the Tribunal that the notion of giving circular dated 19.4.2003 a, retrospective operation is totally misconceived. Its high time that the S&GAD, particularly its Regulation Wing gets its perception cleared. Appellant having retired on reaching the age of superannuation on 1.9.2002, the proforma policy will have no application to his case and he will be governed by the old policy.
8. Appellant was ripe for promotion in BS-19 when he was promoted on acting charge basis. This is where the first mistake was committed and was rectified in two judgments referred to above in the preceding paragraph of this judgment. The respondents did make re-calculation of the appellants in the said judgment although the direction was that all cases of those incumbent civil servants which were wrongly calculated should be given the benefit by re-calculating their period of gazetted service in accordance with the rules. Once again the case of the appellant was placed before the Provincial Selection Board on 1.10.2001 and for reasons best known, it was not considered probably his service record was incomplete but then appellant cannot be blamed for this lapse.
Lastly when his case came-up for consideration in the deliberation of the Provincial Selection Board held on 29.11.2002 he was ousted on the ground that he stood retired from service on 1.9.2002 on reaching the age of superannuation. This view was taken absolutely on wrong premises. Juniors to the appellant having been promoted to BS-19 on regular basis and the case of the appellant having not been considered on lame . Pretexts, cannot be excluded from consideration by his retirement from service. The definition of civil servant in Section 2(b) of the Punjab Service Tribunal Act, 1974 is that person who is or who has been member of a civil service of the province or who holds civil post in connection with the affairs of the province. The Tribunal while dealing with appellant the terms and conditions of service acts under the Punjab Service Tribunal Act, 1974.
9. The upshot of the discussion is that the appellant has made out a case for intercession on his behalf. Resultantly, his appeal is accepted. Order dated 17.1.2004 passed by the respondent is set aside. Appellant shall give proforma promotion in BS-19 on regular basis w.e.f. 5.4.1994, the date when he was given promotion on acting charge basis. Appellant shall be paid complete financial benefits from the said date to his date of retirement and thereof his financial benefits shall also be computed considering his retirement to be in BS-19. There shall be no order as to costs. .