CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB and others vs MUHAMMAD

ORDER

' RAJA FAYYAZ AHMAD, J.--- Respondent Muhammad Arshad Khan Niazi was considered for promotion as Superintending Engineer (B-19) by the Provincial Selection Board in its meeting held on 28/29 March, 1999 but his case was deferred till finalization of the inquiry pending against him, however; three junior Executive Engineers were then promoted on officiating basis. The respondent reached to the maximum stage of BS-19 before 1-12-1995 and his case was that had he been promoted as Superintending Engineer in time he would have been allowed move-over to BS-20 w,e,f, 1-12-1995, as officers junior to him had been allowed these benefits and their pays were accordingly fixed at higher stage.

2. Before us, it has been admitted by the learned Additional Advocate-General that the inquiry pending against the said respondent lasted for about 4/5 years and eventually, he was exonerated of the charges and also it could not be denied that said respondent had suffered recurring financial loss, who was promoted on regular basis as Superintending Engineer on 22-5-2000 after having been found innocent and exonerated of the charges vide order dated 9-2-2000. It is also not denied that in certain circumstances and eventualities, the civil servants are entitled to pro forma promotion but as the case of the respondent was then pending he could not be considered under the new Pro forma Promotion Policy, which even in a fit case could not be made applicable effective from the back date except under the policy then in vogue.

' In view of the circular dated 16-10-1973 regulating the of pro forma promotion entitles a civil servant to claim for pro forma promotion if he had been facing a departmental enquiry at the relevant time as in the instant case. Therefore, the matter regarding his promotion was deferred but finally as above said he was exonerated and declared innocent. The relevant extract of the abovesaid circular letter has been reproduced in the judgment impugned herein.

3. It is not disputed that juniors to the respondent were allowed move-over to BS-20 and their pays had been fixed at higher stage, whereas; the respondent as above mentioned deprived of these benefits. In view of the law laid down by this Court in the case of The Province of Punjab through the Secretary, Services and General Administration, Lahore v. Syed Muhammad Ashraf and others 1973 SCM R 304 when a civil servant is prevented to perform duties in the higher post to which he was entitled he had to be paid salary for the higher post for the period he was not allowed to perform duties of that post has correctly been followed by the learned Tribunal in the instant case. The contention of the learned Additional Advocate-General that since during such period the petitioner did not perform the duties of the higher post he could not be found entitled to such benefits is absolutely without any substance, rather; misconceived in view of the ruled laid down by this Court being consistently followed.

4. The domestic inquiry initiated against the respondent should have been completed within the prescribed period, as envisaged under E&D Rules, which the Department had failed to conclude within the permissible span of time and the delay in concluding the same could not be attributed to the respondent nor could he legitimately be made to suffer for the lapses on the part of the Department, which eventually precluded him to further promotion and to the benefits of BS-20 granted to the officers junior to him, hence; in such circumstances, it was rightly concluded by the learned Service Tribunal that the respondent was entitled to promotion from the date his juniors were promoted. The learned Additional Advocate-General failed to dislodge the law applied to the case of the respondent in the given undisputed facts and circumstances of the case to which no exception could be taken. No substantial question of law of public, importance could be raised so as to call for any interference in the impugned judgment by this Court within the meaning of Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973.

5. Consequently, this petition is dismissed. .