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Petitioner: FAZAL-UR-REHMAN VS Respondent: CHIEF ENGINEER, IRRIGATION REGION, MULTAN
1984 P L C (C
1984 P L C (C. S.) 247
[Service Tribunal Punjab]
Before Malik Zawwar Hussain and Abdul Hamid Chaudhry, Members
Sh. FAZAL‑UR‑REHMAN Versus
CHIEF ENGINEER, IRRIGATION REGION, MULTAN AND 3 OTHERS
Case No. 3/1561 of 1982, decided on 19th April, 1983.
(a) Punjab Civil Servants Act (VIII of 1974)‑
‑‑‑S. 21 (2), proviso and Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, rr. 3 & 4 read with West Pakistan Irrigation Department Ministerial Service (Circle) Rules, 1964, Appendix, Sr. No. 1 [as amended vide Notification No. SOR III 1‑48!71, dated 4th May, 1973] ‑ Departmental Promotion Committee‑Function‑Determination of fitness for promotion -Promotion sought to be made against post of Superintendent Rules requiring promotion to be made from cadres of Head Clerks and Stenographers in proportion to their cadre strength in region ‑ Decision regarding feeding cadre‑‑Within competence of appointing authority‑Departmental Promotion Committee instead of obtaining decision of appointing authority considering question of promotion on basis of combined seniority and also ‑by determin ing ratio of feeding cadres ‑Committee, in circumstances, held, transgressed its jurisdiction‑On reference by appointing authority clear cut advice of Government is‑ued regarding ratio and feeding cadre to which vacancy sought to be filled belonged‑Committee adamant to stick to its decision on plea that its decision not open to appeal to higher authorities in view of proviso to S. 21 (2) of Civil Servants Act, 1974‑Plea of Committee, held, not tenable and Government in Administrative Department being authority constituting the Committee had inherent jurisdiction in issuance of advice and such advice, held, binding upon Departmental Promotion Committee.
(b) Punjab Service Tribunals Act (VIII of 1974)‑
‑‑S. 4 (1), proviso (b) read with West Pakistan Irrigation Depart ment Ministerial Service (Circle) Rules, 1964, Appendix, Sr. No. 1 [as amended vide Notification No. SORIII‑1‑48/71, dated 4th May, 1973]‑Promotion matter‑Bar of jurisdiction of Service Tribunal Not applicable where appellant not promoted due to wrong interpre tation of rules‑Appellant (Head Clerk) claiming promotion as Superintendent‑Rules requiring promotion to be made from feeding cadres of Head Clerks and Stenographers in proportion to their cadre strength and not on basis of their joint seniority‑Promotion of Stenographer (respondent) made on basis of joint seniority and erroneous determination of ratio of feeding cadre despite Govern ment advice that vacancy fell to ratio share of Head Clerks cadre Appellant also promoted subsequently but his claim for promotion from due date rejected‑‑Objection as to jurisdiction of Service Tribunal, in circumstances, rejected and case of appellant, held, not hit by proviso (b)‑Appellant, in circumstances, held, deprived of promotion due to no fault of his hence entitled to promotion to post involved, from date respondent (Stenographer) was selected for promo tion by Departmental Selection Committee, with all consequential benefits under rules as if he had been actually promoted with effect from relevant date. [pp. 256, 260]C & D
Case No. 445/569 of 1979 ; 1982 S C M R 186 ; Muhammad Sharif v. secretary, Irrigation and Power Department etc. 1981 P L C (C. S.) 562 ; inspector‑General of Police v. Ashfaq Ahmad and others 1983 S C M R 134; Iftikhar Ahmad Butt v. Police etc. N L R 1981 T D 537 ; N L R 1979 Service) Kar. 121 and Ch. Muhammad Ishan v. Province of Pun jab. N L R 978 Service 162 rel.
Rashid‑ud‑Din Qureshi for Appellant
Haroon‑ur‑Rashid Cheema, District Attorney for Respondents Nos. 1 >3.
JUDGMENT
ABDUL HAMID CHAUDHRY (MEMBER).‑Sh, Fazal‑ur‑Rehman, has made its appeal under section 4 of the Punjab Service Tribunals Act, 1974; herein he has impleaded Chief. Engineer, Irrigation Region, Multan, Superintending Engineer, Headquarter, Irrigation Region, Multan, Secretary, Irrigation and Power Department, Lahore and Muhammad Saleem, Super intendent, Muzaffargarh Canal Circle, Multan, as respondents.
2. By virtue of this appeal the appellant has prayed as under :‑
(i) that the impugned orders, dated 16th November, 1981 and 6th December, 1981 are required to be reversed and modified because there is a balance in favour of the appellant;
(ii) the appellant be declared senior to respondent No. 4 with back benefits since 1974 ;
(iii) the common seniority list, dated 16th October, 1976 be declared void and ineffective;
(iv) the orders of promotion of respondent No. 4, dated 16th November, 1981 be quashed and declared illegal ;
(v) the appellant be granted pro forma promotion w. e. f. January, 1976 on the occurrence of first vacancy which had to be given to the Head Clerks, which was not given due to misinter pretation of the Service Rules.
3. Brief facts of the case are that the appellant was working as Head Clerk in Multan Irrigation Region in the year 1976. In January, 1976, a vacancy of Circle Superintendent occurred. An amendment in the West Pakistan Irrigation Department Ministerial Service (Circle Rules) 1964, was issued vide No. SRO‑IIl‑1‑48/71, dated 4th May, 1973 wherein in columns 2 and 4 against Serial No. 1, of the Appendix, the following entries were added :‑
2 3 4
Superintendent By promotion from among members of the Service in proportionate to their cadre strength in the Region where the vacancies occur holding :
(i) Post of Head Clerks with at
least five years' experience as such, and
(ii) Posts of Stenographers with at
least five years' experience as such who have passed departmental examination, if any prescribed for Head Clerks under sub‑rule (4) of rule 8.
In accordance with the above amendment, promotion to the post of Circle Superintendent was required to be made proportionate to their cadre strength from amongst Head Clerks and Stenographers. Joint seniority list of Head Clerks and Stenographers had ceased to be maintained with the amendment in the West Pakistan, Irrigation Department, Ministerial Service (Circle Rules), 1964, referred to above. Thus, separate seniority lists of these each feeding cadre were required to be maintained rout pro motion was to be made according to the prescribed share or ratio of each feeding cadre. In early, 1976, there existed some vacancies of Circle Superintendents. At that time, the cadre strength of Head Clerks and Stenographers in Multan Region was 16 posts of Head Clerks and 4 posts of Stenographers and according to this cadre strength, the ratio of Head Clerks and Stenographers worked out as 4 1. However, on 9sb February, 1976 the Departmental Promotion /Selection Committee, consisting of Superintending Engineer, Irrigation, Headquarters (as Chairman? Superintending Engineer, L. B. D. C. and Technical Officer (as member;, selected Ch. Muhammad Salim, Steno, for promotion as Circle Superintendent on the basis of joint seniority list of Head Clerks/ Stenographers a))d according to the ratio 4 : 1 prescribed for Head Clerks and Stenographers as worked out by the Committee according to their own wisdom and inter pretation of the rules mentioned above. On this recommendation of Departmental Promotion/Selection Committee, orders of promotion of Mr. Muhammad Salim Stenographer as officiating Superintendent were issued vide Order No. 727/A1/7616340/786/89 (Vol. III), dated 16th February, 1976 and endorsed vide No. 727/RI/76/634i‑45/787/69 (Vol. Ill), dated 19th February, 1976 to various offices. His posting orders as officiating Super intendent were to be issued separately. The appellant being aggrieved of this action appealed to the Chief Engineer Irrigation, Multan. To resolve the controversy, the Chief Engineer, Irrigation, Multan, referred the case to the Secretary, Government of the Punjab, Irrigation and Power Department, Lahore, to seek the clarification for the feeding cadre, out of Head Clerks /Stenographers, from which the promotion could be made according to Rules. In reply to this the Government of the Punjab, Irrigation and Power Department, vide Memo. No. S. 0‑111 (E) 2‑46/73, dated 20th August, 1976, addressed to the Chief Engineer, Irrigation Multan, directed that the vacant post belonged to the cadre of Head Clerks and the vacancy should go to the Head Clerks side on the condition that whenever the deputationist return to the Department, the junior most will revert to his substantive post. The matter was, thus, referred to the Depart mental Promotion Committee. The Committee considered the issue again in their meeting held on 13th/15th September 1976 but struck to their original decision made in their earlier meeting on 9th February, 1976. The Committee. met third time on 22nd May, 1978 to consider this controversial issue, they again struck to their earlier decisions and Superin tending Engineer, Headquarters/Chairman, Departmental Promotion Committee, Multan Region, Multan wrote to the Secretary to the Government of Punjab, Irrigation and Power Department, Lahore, vide letter No, AI/78/17542/787/69, dated 6th June, 1978, that the advice given by the Government vide their order, dated 20th August, 1976 be with drawn to admit implementation of the decision of the Committee and let aggrieved person, if any, knock at the door of the Tribunal. This matter remained under consideration of the Government in the Irrigation Department and it was finally decided by the Government of the Punjab, Irrigation & Power Department in consultation, with S&GAD; and vide their letter No. SO‑111 (E) 1‑3/79, dated 22nd August, 1981 directed the Chief Engineer, Irrigation Multan, that the promotion to the post of the Superintendent was to be made from feeding cadres of Head Clerks and Stenographers in proportionate to the cadre strength in the Region and future promotions, if any, should be made from the relevant cadre to maintain this ratio. Joint seniority list of Head Clerks and Steno graphers had ceased to be maintained with the amendment of West Pakistan, Irrigation Department, Ministerial Service Region and Circle cadre Rules, 1964, as amended vide Notification, dated 4th May, 1973. Separate seniority list of each feeding cadre were required to be maintain ed but promotion would be allowed according to the prescribed share or ratio of each feeding cadre. Mr. Muhammad Salim, Stenographer, pro moted as officiating Circle Superintendent vide Office Order No. 727/ Al/ 76/6340/787/69 (Vol. III), dated 116th February, 1976 was posted to Muzaffargarh Canal Circle, Multan, against an existing vacancy with immediate effect vide order, dated 16th November, 1981 of Chief Engineer Irrigation, Multan Region, Multan. The appellant was also promoted upon the recommendations of the Departmental/Promotion Committee as officiating Circle Superintendent, with immediate effect against an existing vacancy vide order, dated 6th December, 1981 of Chief Engineer Irrigation, Multan. As grievances of the appellant were not redressed; the respon dent No. 4 was promoted in preference to the appellant, hence this appeal.
4. We have heard the parties. It has been argued by the learned counsel for the appellant that after issue of the amendment to the West Pakistan Irrigation Department Ministerial Service (Circle Rules), 1964, vide Punjab Government Notification, dated 4th May. 1973, the preparation maintenance of common seniority list of Head Clerks/Stenographers had ceased. The seniority list of Head Clerks and Stenographers had to be pre pared and maintained separately as the promotion of the Circle Superinten dent was to be made from amongst the Head Clerks/Stenographers in accordance with their cadre strength ratio. But the rules were misinterpreted to accommodate respondent No. 4, eventually employed in the office of the competent authority as Stenographer, on occurrence of vacancy belonging to the Head Clerks' cadre. Though the joint seniority list of Head Clerks and Stenographers had ceased to exist in the year 1973, due to above amendment of Service Rules and separate .seniority lists were to be maintained for the cadres of Head Clerks/ Stenographers, even then, the name of respondent No. 4 was illegally inserted in the year 1976 at serial 2‑A in the joint seniority list. The insertion of the name of the appellant in seniority list was in contravention of the service rules. This was also done in mala fide manner after obtaining application from respondent No. 4 on 9th February, 1976, which was decided on the same day by respondent No. 1 on 9th February, 1976, without hearing the parties, with an object to make mala fide selection of respondent No. 4 for promotion as Circle Superintendent in the meeting of the Selection Committee which was scheduled to be held on the same day. Thus, insertion of name of respondent No. 4, in the common seniority list of Head Clerks/Stenographers was in clear violation of service rules and also the selection/promotion of respondent No. 4 by the Departmental Promo tion Committee held on 9th February, 1976 on the basis of this joint seniority list was male fide, malicious on the part of respondent No. 2 and other members of the Committee. As per amendment in the West Pakistan, Irrigation Department, Ministerial Service Rules, 1964, amended vide Government Notification, dated 4th May, 1973 and to be read with Punjab Civil Servants (Ratio and recruitment) Rules, 1973 notified by him S&GAD, on 14th June, 1973, the post of Circle Superintendent against which Mr. Muhammad Salim Stenographer respondent No. 4 was selected belonged to the cadre of Head Clerks and, therefore, the appellant should have beep appointed against this vacancy. On clarification sought by the Chief Engineer Irrigation, Multan, the Government of the Punjab, Irrigation and Power Department issued a clear cut advice vide their letter, dated 20th August, 1976 that the vacant post belonged to the cadre of Head Clerks, even then, the Departmental Promotion/ Selection Committee, though considered this case time and again, struck to their own whim and mala fide intentions and did not agree to change their recommendations. The result is that order of promotion of Muhammad Salim Stenographer as Circle Superintendent which was passed on the recommendation of this Promotion/ Selection Committee is an illegal and unlawful order.
5. It was further argued by the learned counsel for the appellant that also the impugned orders, dated 16th November, 1981, through which the respondent No. 4 was posted, is also an illegal order as he was promoted against a vacancy which was not his share according to the cadre strength and the rules in force. He also submitted that though the appellant was also promoted on the recommendations of the Promotion /Selection Committee vide order, dated 6th December, 1981 but these orders were issued at a much belated stage and the appellant was required to be promoted from 16th February, 1976, the date on which the respondent No. 4 was pro moted. This post remained throughout vacant since February, 1976 as Mr. M. D. Khalid, Superintendent in whose place this vacancy was created remained first on deputation with WAPDA, and then his lien was terminat w. e. f. 3rd July, 1977.
6. Concluding his arguments, the learned counsel for the appellant prayed that the appellant be allowed to be considered to have been promoted w. e. f. 16th February, 1976 the date on which the respondent No. 4 was promoted illegally without his turn/any right accrued to him, keeping in view the cadre strength/ratio his promotion be declared quashed and set aside.
7. Controverting the arguments submitted by the learned counsel for the appellant, the learned District Attorney submitted that he would agree with the parawise comments given by the respondents. According to the calculations by the Promotion/ Selection Committee, the vacancy belonged to the cadre of Stenographers and thus respondent No. 4 was correctly promoted. It was also submitted by the learned District Attorney that this matter concerns regarding determining the fitness or otherwise of an official to be promoted /appointed to a particular post and thus this appeal is not within the jurisdiction of this Tribunal, as per, section 4S1) (b) of the Punjab Service Tribunals Act, 1974.
8. Rebutting the above objection of the learned District Attorney, the learned counsel for the appellant submitted that this was not a simple matter of determining the fitness of the respondent/appellant but it was a matter of rnala fide/wrong promotion in contravention of the rules where right of the appellant was jeopardized and he was illegally deprived of his promotion. Thus this is within the jurisdiction of this Tribunal, and the Punjab Service Tribunal Act,, 1974, does not place any bar on the scrutiny of such cases by the Tribunal. The learned counsel for the appellant relied on the following judgments of High Court, Lahore and Federal Service Tribunal .
(i) P L D 1973 Lah. 42
Writ Petition No. 129 of 1967, decided on 11th February, 1972., 1ri case of Syed Muhammad Ashraf Shah v. Province of West Pakistan S&GAD, Lahore.
(ii) In case of S. Bashi, Ahmad Qazi v. Auditor‑General of Pakistan and 4 others 1980 P L C (C. S.) 356.
The learned counsel for the appellant while placing reliance on these judg ments submitted, that it has been made clear that when a civil servant is deprived from holding the post due to no fault of his own, he is entitled to appointment to that post with all consequential benefits including the arrears of pay and allowances admissible under the rules as if he had been actually appointed to that post w. e. f. the relevant date.
9. We have given our anxious thoughts to the arguments of the parties and have consulted the record of this case very carefully. We have studied the history/facts of this case to arrive at a correct conclusion. This issue cropped up with the amendment in the West Pakistan Irrigation Department Ministerial Service (Circle Rules), 1964 amended vide SRO‑III‑I‑4871, dated 4th May. 1973. On amendment of the above West Pakistan Irriga tion Department Ministerial Service Rules, in 1973, the joint seniority list of Head Clerks and Stenographers had ceased to be maintained and separate seniority list of each feeding cadre of Head Clerks and Stenographers was to be maintained. Thus the promotion to the post of Circle Superintendent was required to be made according to the prescribed share or ratio of each feeding cadre of Head Clerks/ Stenographers.
10. The Departmental Promotion/Selection Committee consisting of Superintending Engineer, Headquarters, Multan, as Chairman, Superin tending Engineer L.B. D.C. and Technical Officer as members, met on 9th February, 1976 to consider the case of promotion of Head Clerks/Steno graphers as Circle Superintendent. While considering the promotion case, on 9th February, 1976, the Committee took decisions having follow ing criteria s :‑
(1) Combined seniority list of Head Clerks/ Stenographers was taken into consideration for this promotion as issued vide Superintend ing Engineer Headquarters No. 4592/.Al/74/26089;'93/341/73, dated 4th September. 1974 ;
(2) While the meeting of Departmental Promotion Committee was being held on 9th February, 1976, the name of respondent No. 4 was got inserted in the combined seniority list at seniority position at 2‑A. This was done by calling the case of the respondent No. 4 by the Superintending Engineer, Headquarters, Chairman of the Committee and decision was given there and then fixing his senior ity at position at 2‑A of the combined seniority list. Office order in this connection was issued vide No. Al !75(3573‑77/341/73, dated 9th February, 1976.
(3) The Committee calculated the .ratio of the cadre strength of Head Clerks and Stenographers as follows. A reference be made to the last para. of minutes of meeting of Depart mental Selection Committee held on 9th February 19?6, which follows . ‑‑
"The Committee got the figures of promotion of Head Clerks from the time of the Steno was promoted to the rank of Superintendents lastly. Previous to this, Mr. A. ID. Khan Steno was promoted. Superintendent. Thereafter following Head Clerks got promotion as Superintendents :‑
(1) Sh. Munawar Hussain.
(2) Ch. Nazar Muhammad.
Now this Committee has further promoted two No. Head Clerks (as above) viz.‑
(1) Mr. M. D. Khalid,
(2) Khan Muhammad Siddique Khan,
Which completes the quota of 4 No. Head Clerks before another Steno becomes eligible for promotion. The next man from the quota of Steno to be considered for promotion and also according to the seniority list, is Ch. Muhammad Salim, Steno. The Committee through his service record (P. Rs.), and find him fit for promotion as Superintendent. He is, therefore, promoted as Superintendent from the next clear substantive vacancy is available."
11. When the above recommendations/promotion of respondent No. 4 came to the notice of Chief Engineer, Irrigation, Multan, he did not agree with the recommendations of the Committee mentioned as per para. 10 (3) above on the plea that in case this ratio was accepted, then the arrangements becomes distribution of vacancies and not the maintenance of overall ratio of the cadres which is contrary to the rules. Discussing the relevant rules, pros and cons of this case, the Chief Engineer Irrigation, Multan vide his letter No. 21109, dated 14th May. 1976, referred the matter to the Secretary, Government of the Punjab, Irrigation and Power Department, Lahore to get the advice/clarification for solving the controversy.
12. The Government of the Punjab, Irrigation and Power Department after thorough examination of this case, decided vide their Memo. No. SOIII (E)‑2‑46/73, dated the 20th August, 1976, addressed to the Chief Engineer, Irrigation, Multan which reads as follows
"On thorough examination of this case, it has been observed that the vacant post belongs to the cadre of Head Clerks and, therefore, it is obvious that this vacancy should go to the Head Clerks side on the conditions that whenever the deputationist returns to the Department the junior most will be reverted to his substantive post."
13. The recommendations/decisions of the Promotion Selection Committee, dated 9th February, 1976 were obviously wrong and incorrect on the following grounds :‑
(i)That with the amendment in the West Pakistan Irrigation Depart ment Ministerial Services (Circle) Rules, 1964, dated 4th May, 1973, the common seniority list of Head Clerks and Stenographers had ceased and no promotion could be made on the combined seniority list. The promotion was to be made from separate seniority lists of each feeding cadre of Head Clerks and Stenographers, according to the prescribed share or ratio of each feeding cadre as the combined seniority list was redundant, not to be considered or operated upon, hence selection of respondent No. 4 made on the basis of this combined seniority list was not in order.
(ii) As per clear cut advice given by the Government referred in para. 12 above, the vacant post belonged to the cadre are of Head Clerks and not to the Stenographers. Thus, selection/promotion of respondent 4 (a Stenographer) was not, correct and unlawful.
14. On receiving of this clear cut advice from the Government the Promotion Committee discussed this matter again in their meeting, dated 13th/15th September, 1976 but they stuck to their first decision. The case was again considered by the Committee in their meeting on 22nd May, 1978, but again Committee stuck to their earlier decision as taken in their meetings, dated 9th February, 1976 and 13th/ 15th September, 1976. The Superintending Engineer Headquarters and Chairman, Departmental Promo tion Committee, Multan Region, Multan, referred this matter to the Secretary to Government of Punjab, Irrigation and Power Department, Lahore, vide his letter, dated 6th June, 1978 (without routing this through the Chief Engineer Irrigation Multan) wherein it was requested that decisions taken by this Committee, on 9th February, 1976, 13th/ 15th September, 1976 and 22nd May, 1978, in favour of Mr. Muhammad Salim Stenographer for selecting and promoting him as Superintendent was correct and they would stick to the same ‑and a request was made to the Government as follows :‑"
"It is therefore, earnestly requested that the advice afforded vide your memo No. S. O. III (E) 2‑46;'73, dated 20th August, 1976, without being sought for by the Committee may kindly be withdrawn to admit implementation of the decision of the Committee and let the aggrieved person, if any, mock at the door of the Tribunal."
15. However, the matter remained under consideration with the Government in the Irrigation Department and S&GAID and finally Government of the Punjab, Irrigation and Power Department after consulting S&GAID vide their letter No. S. O. 111 (E) 1‑3/79, dated 22nd August, 1981 conveyed the following advice of S&GAID decision…
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