NAWAZISH HUSSAIN Versus DIRECTOR-GENERAL, PAKISTAN P. W. D., ISLAMABAD

1. ABDUR RASHID (MEMBER). ‑The appellant joined Pak. P. W. D. as an Overseer (Civil) with effect from 13th June, 1968. This appointment, which was in N P S‑11, was redesignated as sub‑engineer with effect from 16th November, 1974.

2. As a result of a D. P. C. meeting, a promotion order was issued on 14th June, 1976, whereby thirteen sub‑engineers were promoted as Assistant Engineer Grade‑16 on ad hoc basis against the vacancies reser ved far direct recruits. Of these promotees, two were junior to the appellant. They were Muhammad Ibrar and Muhammad Ayub Baig who had joined the Pak. P. W. D. as sub‑engineer with effect from 2nd August, 1968 and 5th October, 1968, respectively. Thereafter, yet another sub‑engineer Mahmood‑ur‑Rehman was promoted as Assistant Engineer (Grade 16) with effect from 31st May, 1977 even though he had joined the P. W. D. as sub‑engineer, with effect from 10th May, 1969. The appel lant was, thus superseded by three of his junior for the reason that his A. C. Rs. for the year 1974 and 1975 were not available before the D.P.C. and became available on 11th November, 1976 when two D.P.C. meetings had already been held before the receipt of his said A‑C. Rs. It is instruc tive to refer two various D. P. C. Meetings who dealt with the case of the appellant. The D. P. C. Meetings held between 14th to 17th May, 1976 (which resulted in the promotion of appellant's juniors) said ;‑

2. "Mr. Nawazish Hussain :‑‑His reports for 1971‑72, and 1973 are good. But the Assistant Engineer has not recommended him for promotion. In the report for 1973 the XEN has strongly recom mended him for promotion. His report for 1974 and 1975 are not available. He is cleared for promotion provided his reports for 1974 and 1975 are good."

3. The D. P. C. Meeting, dated 8th November, 1976 said this as to the appellant :‑

4. "In the last D. P. C. meeting held in May, 1976, it was pointed out that his reports for the years 1974 and 1975 were not put up. The same position is still now. These reports may be called for imme diately so that the incumbent may not allow to suffer in future."

5. The D. P. C. Meeting, dated 20th September, 1978 had this to say about the appellant :‑

6. "His reports for 1970, 71, 72, 73, 74, 75, 76 and 1977 are good. The committee is of the view that he is cleared of promotion."

3. The representations of the appellant bore fruit in the form of Works Division letter, dated 14th January, 1982 which is reproduced :

7. "Subject :‑Promotion case of Mr. Nawazish Hussain Malik, Sub- Engineer (Civil) Pak. P. W. D.

8. Sir,

9. I am directed to refer to your letter No. A‑1/717/700 (568), dated the 13th December, 1981 on the above subject and to say that from letter No. A‑1/717/700 (568), dated 25th January, 1979, it appears that Mr. Nawazish Hussain, Sub‑Engineer (Civil), was ripe for promotion to the post of Assistant Engineer long before the ban on fresh appointment/promotion was imposed by the Economic Committee. His case also did not fall under the amended recruitment rules of 1979. The injustice done to him because of non availability of his A. C. Rs. for the year 1974 and 1975 should have been rectified soon when it come to notice and his juniors were promoted. His case may, therefore, kindly be re‑examined and decided early under intimation to this Division.

10. Your obedient servant,

11. (Sd.)

12. (A. A. ALAVI),

13. Section Officer."

4. The appellant was promoted as Assistant Engineer, vide P.P.W.D. letter, dated 25th January, 1982. Aggrieved from the said promotion order, which did not give effect to the promotion of the appellant with effect from 14th June, 1976, the date from which two of his juniors were promoted the present appeal was filed before the Federal Service Tribu nal on 22nd February, 1982.

5. We heard the learned counsel from both sides as well as perused the relevant record. To begin with, we quote the P W D letter, dated 25th January, 1979,

14. "The Joint Secretary to the Government of Pakistan,

15. Works Division, Islamabad.

16. (Attention: Mr. A. A. ALAVI

17. Section Officer)

18. Subject : Representation for promotion as Assistant Engineer (Civil) .Against the Promotion of his juniors Mr. Nawazish Hussain, Sub- Engineer Pak P. W. D., Rawalpindi.

19. Sir,

20. I am to invite a reference to your letter No. F. 8 (9)/78‑E. II, dated 4th December, 1978, on the subject noted above, and to state that the case of Mr. Nawazish Hussain, Sub‑Engineer (Civil), for Promotion to the post of Assistant Engineer, was considered by the D. P. C., in their meetings held on 19th January, 1976 and 1st November, 1976, we find these dates to be incorrect. The correct dates of the D. P. C. meetings have been given at para. 2 above but he was not cleared for promotion, as his A. C. Rs. for the years, 1974 and 1975 were not avail able. His A. C. Rs. were received subsequently and he has since been cleared for promotion along with a number of other Sub Engineers. The minutes of the D. P. C. have been approved finally by the Chief Engineer recently. Necessary action will now betaken to appoint the promotees in the vacancies, as and when available, and Mr. Nawazish Hussain, will get his promo tion on the basis of his seniority. He will be assigned seniority over his juniors who had been promoted earlier, because he was left over due to non‑availability of his complete A. C. Rs. through no fault of his own.

21. 3 We find these dates to be incorrect. The correct dates of the D.P.C meetings have been given at para. 2 above.

22. Your obedient servant,"

23. (Sd.)

24. (G. H. KAZMI)

25. Administrative Officer.

26. It will be observed that the above‑quoted letter, apart from explaining the position of the, case, makes a firm commitment that as and when the appellant is promoted, be would be assigned seniority over his juniors because he was superseded due to non‑availability of his A.C.Rs. through no fault of his. In practice, however, this commitment was not honoured and despite being cleared by the D. P. C. in 1979 he was not promoted till his name was approved by yet another D. P. C. in January, 1982 and his promotion given effect. We are quite clear that the appellant had been approved by the D. P. C. of May, 1976 as quoted at para. 2 above. It was, therefore., uncalled for to go on dragg ing his name beyond the date of receipt of his A. C. R. S. for 1974 and 1975 and this date was 11th November, 1976.

6. It is an admitted position that the appellant had NOT been superseded by the D. P. C. Meeting of May, 1976. He was cleared sub ject to his A. C. Rs. for the years 1974 and 1975 being good, which they were, after they became available on 11th November, 1976. There was, therefore, no earthly reason not to have promoted him immediately after 11th November, 1976 with effect from 14th June, 1976, the date on which he was superseded by his juniors as highlighted already. He was finally promoted with effect from 25th January, 1982 which amounted to a promotion delayed through no fault of the appellant by about five and‑a‑half years. Such being the case, we order that in accordance with the General Principles of Seniority (page 153 of Estacode 1983), the appellant shall be deemed to have been promoted with effect from 14th June, 1976 the date from which his juniors were promoted. The relevant principle B (b) is quoted

27. B. Departmental promotions. (i) ......

(a) ......

(b) When in a single reference the Selection Board/D.P.C. are asked to recommend more than one person and the recommendation of the Selection Board/D. P. C. is held up in respect of one or more such person for want of complete papers etc. or for reasons beyond the control of the persons concerned, the recommenda tion of the Selection Board/DPC in respect of such persons when made subsequently will be deemed to have been made on the date when the recommendation in respect of the original batch was made ;

7. In the light of the above‑quoted principle, the appellant shall be deemed to have been promoted with, effect from 14th June, 1976, as already stated, and he would be placed, in the seniority list, above his juniors who superseded him on the said date. Since the appellant was also prevented from taking up his appointment of Assistant Engineer with effect from 14th June, 1976 which he would have assumed, had his A. C. Rs. for the years 1974 and 1975 been available before the D. P. C. Meeting of May, 1976 ; he would therefore be entitled to the arrear of pay and allowances (including increments) in the grade of Assistant Engineer, with effect from 14th June, 1976 onwards till his promotion a such, with effect from 25th January, 1982.

8. The appeal is accepted with no order as to costs.

28. A. B Appeal accepted.