ABDUL RASHID KHAN Versus CHIEF ENGINEER, IRRIGATION, BAHAWALPUR REGION, BAHAWALPUR
S. ABDUL JABBAR KHAN (CHAIRMAN), -Abdul Rashid Khan, S. D. O. Rahimyar Khan has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Chief Engineer, Irriga tion Department, Bahawalpur Region, Bahawalpur, Secretary to Govern ment of the Punjab, Irrigation and Power Department, Lahore, Messrs Nazir Ahmad and Muhammad Saeed, Sub-Divisional Officers, as respondents.
2. By virtue of this appeal he has prayed that the appeal be accepted and the final order, dated 9th March, 1982/25th April, 1982, be set aside. He has further prayed that respondent No. 2 be directed to award him pro forma promotion from the date his next junior contesting respondents were so promoted in Punjab. He has also claimed seniority over the con testing respondents throughout in all the ranks.
3. Brief facts of the case are that the appellant was appointed as Sub -Engineer in the former Punjab, Irrigation Department w. e. f. 9th July, 1956. He was also confirmed as such on 24th May, 1968. The appellant also cleared his D. R. examination in October, 1966 and D. P. examination in October, 1968, and was promoted as acting S. D. O. w. e. f. 1st July, 1980. The contesting respondents Nos. 3 and 4 were promoted a S. D. Os. by the Baluchistan Government vide order, dated 25th July, 1970 and 14th October, 1970. Later on they were given Class II w. e. f. 29 th July, 1970 and 2nd November, 1970, respectively. It may also be mentioned here that the said respondents when repatriated to their parent Province were appointed as officiating S. D. Os. The appellant has submitted that a large number of representations were made by him for the award of pro forma promotion from the date from which contesting respondents were so promoted. The respondent No. 1 after examining the case of the appellant made a strong recommendation to respondent No. 2 for the award of pro forma promotion to the appellant on the basis of original seniority but such recommendation did not find favour with the ultimate authority and the same stood rejected by the final order, dated 9th March, 1982. Hence this appeal.
4. We have heard the learned counsel for the appellant as sell as learned District Attorney assisted by the representative of the Department as well as learned counsel for the contesting respondents and have perused5. Learned District Attorney while relating to the history of the case concerning the respondents, has submitted that while they were serving as S. D. Os. in Punjab their case of pro forma promotion was decided in 1974, by virtue of which they were given the pro forma promotion from 18th March, 1968. A preliminary objection was taken by the learned District Attorney that the order of the Governor Baluchistan cannot be upset by this Tribunal which related to year 1974. Similarly he reiterated his stand in support of his objection by stating that the appellant had failed to challenge the absorption of the respondents at the relevant time, therefore, his appeal was time-barred. Another objection was taken by the learned District Attorney about the maintainability of the appeal and has submitted that once a case of pro forma promotion was considered and rejected by the competent authority, this Tribunal cannot interfere in such matters under section 4 of the Punjab Service Tribunals Act, 1974.
6. At this juncture, learned counsel for the appellant has submitted that respondents Nos. 3 and 4 viz. Messrs Nazir Ahmad and Hafiz Muhammad Saeed were promoted as S. D. Os. on ad hoc basis by the Chief Engineer, Irrigation, Baluchistan and while they were still working on ad hoc basis, they were relieved by the Baluchistan Government with the direction that they should join the Punjab Government vide Notification, dated 12th December, 1972. According to the learned counsel for the appellant, in pursuance of the said order they joined Punjab Government and thus by concealing the fact that their status with the Baluchistan Government was that of ad hoc S. D. Os. they obtained their postings as regular S. D. Os. in Punjab vide order, dated 30th December, 1972. Learned counsel for the appellant has made a grievance that after two years of their repatriation to the Punjab Province, the Baluchistan Government at their own, took the case of promotion as S. D. O. on regular basis and by issuing notifi cation, dated 12th November, 1974, had bestowed upon them pro forma promotion while they were not the civil servants of the Baluchistan Government but civil servants of the Punjab Government and that only the Punjab Government could promote them. In this manner, he has challenged the order of the Government of the Baluchistan, dated 12th November, 1974, being without jurisdiction as well as illegal.
7. With regard to the point of limitation so raised by the 'learned District Attorney, it has been submitted by the learned counsel for the appellant that as the order of the Baluchistan Government was void ab initio, therefore, limitation would not run against void order. It was vehemently argued on behalf of the appellants that when the contesting respondents were so promoted, they were junior to the appellant, therefore, the case of the appellant merits further consideration for the award of pro forma promotion from the date his said juniors were so promoted. He has also tried to distinguish the case of Mr. Muhammad Shafi, S. P. who was given the benefit of promotion by the Government of Baluchistan and has submitted that the same could be done as he was still working in the said Government when the pro forma promotion was so conferred upon him. Reference to Muhammad Shafi's case was made, who was a Police Officer serving in Baluchistan and his pro forma promotion was upheld by this Tribunal, so conferred upon him by the said Government. This case was decided by this Tribunal vide its judgment, dated 12th September, 1983, in case No. 479/1844/82 etc. Malik Sardar Muhammad and others v. Pro vince of the Punjab through home Secretary etc,
8. Learned District Attorney after raising the preliminary objections so stated above, has also adverted to another fact, which according to him stood fully established on the record, by submitting that basically the claim of the appellant 'as disclosed in the Memorandum of appeal as well as through his prayer, is for award of pro forma promotion as well seniority over the contesting respondents and nothing else. According to the learned District Attorney both the claims are misconcieved on the ground that the appellant has all along been working as S. D. O. purely on tem porary basis in his own pay and grade and at the most, if his claim is accepted, he could be only termed as an acting S. D. O., which under the law no status at all. Similarly with regard to the claim of pro forma promotion he has relied and reiterated what he has already stated before us, and so incorporated in the earlier part of our judgment.
9. We have given our anxious thought to the arguments so advanced by the parties and have satisfied ourselves from the service record of the appellant so produced before us that he was never promoted as Sub -Divisional Officer by any order of the Government. He had been working as an acting S. D. O. since 1st July, 1980, but nowhere it has been found that he was ever given the status either on promotion or by way of pro forma promotion. The word `acting' nowhere confers upon a civil servant, a status of regular or officiating appointment and is always considered a stopgap arrangement, allowing the said civil servant to work m his own pay and grade. We have taken pains to find from his service record, as to whether the appellant ever worked in the pay and grade of S. D. O. or that he was promoted to the said post in the prescribed manner, but we have failed to find any such support from the record so made available before us. This being the status of the 'appellant, we wonder, how can he claim seniority over those, who have been duly promoted in a prescribed manner and are working now as regular S. D, Os. The claim of the appellant that promotion of the respondents by the Baluchistan Government be struck down as void ab initio, as at the time of such promotion, they were not working with the said Government, but had already been repatriated to their parent Province, we are afraid we cannot do the same. The action taken by Baluchistan Government had been taken in prescribed manner in consultation with the Public Service Com mission, Baluchistan, therefore, it cannot he said in any manner, that the order was void ab initio. It was within the prerogative of the said Government to decide a pending case of civil servants, who once upon a time, had served under them, therefore, this Tribunal is not in a position to look behind such order and declare the same as illegal or void ab initio when the same had been made in accordance with law,
10. We have also carefully looked into the record of this case with regard to the claim of pro forma promotion so stated before us by the appel lant, and find that his case was duly considered and rejected despite the recommendation of the Chief Engineer-Irrigation. It is not the recommen dation which ultimately decided the fate of the case but it is final order, which is always operative and the authority to which the recommendation is made is fully competent either to accept or reject the same. Once the case of pro forma promotion stands rejected by the competent authority this Tribunal is not permitted to look into its validity as section 4 of the Punjab Service Tribunals Act, 1974, completely bars the jurisdiction of this Tribunal in such matters. We are fully in accord with the objections raised by the learned District Attorney and uphold the same in this respect.
11. In view of the detailed analysis of the case as given in the preceding paragraphs, we do not find any merit in this appeal which is dismissed accordingly. There will be no order as to costs.
M. I. Appeal dismissed.