Mrs. ABIDA IRSHAD BUTT Versus SECRETARY, EDUCATION DEPARTMENT, LAHORE

The relevant facts for the decision of the appeal are that the appellant joined Education Department as S.E. Teacher on 17‑11‑1950 and was confirmed as such on 1‑4‑1952. She was serving as District Inspectress of Schools and posted at Rahim Yar Khan in the year 1969, when a case was registered against her and others. The Department after registration of case decided to initiate disciplinary proceedings against the appellant. The appellant was accordingly served with charge‑sheet together with statement of allegations. The appellant submitted reply thereto. The inquiry was still pending when on 16‑8‑1985, some colleagues of the appellant were promoted to BPS‑18 whereas the selection grade and promotion of the appellant were withheld on account of pending inquiry. The inquiry was ultimately dropped on 15‑12‑1986 through letter Annexure G/I. Thereafter the appellant was given selection grade from due date and promoted to BPS‑18 w.e.f. 8‑7‑1987. The appellant filed representation which did not bear fruit. The appellant when failed to have the redress of her grievance from the respondents, decided to invoke the jurisdiction of this Tribunal through the present appeal. The appeal came up for preliminary hearing on 15‑8‑1987. The same was admitted to regular hearing and notices were ordered to be issued to the respondents. The respondents have entered appearance, submitted written objections and contested the appeal.

2. I have heard the learned counsel for the appellant as well as learned District Attorney and gone through the record. The learned counsel for the appellant has argued that the appellant is senior to all the colleagues, who were promoted through notification dated 26‑8‑1985, therefore, entitled to promotion ahead of them. The learned counsel for the appellant in support of the claim of her seniority has referred to the final seniority list notified on 23‑11‑1980.

3. Secondly that the appellant was denied promotion and selection grade only because inquiry was pending and the moment the inquiry was dropped on 15‑12‑1986, the appellant was entitled to promotion from the due date or when the next junior was promoted. In this behalf a reference is made to Government Policy letter dated 16‑10‑1973 and also relied on the case of Syed Sultan Shah v. Government of Baluchistan.

4. It is argued that the Government has taken up contradictory stand in respect of the appellant. The appellant was entitled to selection grade from 1‑7‑1981 and promotion to Grade‑18 from 26‑8‑1985. The selection grade was given on the due date but promotion has been refused.

5. Lastly it was argued that some of the other colleagues namely Mrs. R.I. Qureshi, Mrs. Zubeda Rizvi and Mrs. Saleem were given promotion from the due date.

6. On the other hand learned District Attorney has argued that the appellant was not entitled to pro forma promotion as a matter of right.

7. I have given my anxious consideration to the arguments of the learned counsel for the appellant as well as learned District Attorney and gone through the paper book of this appeal as well as the summary prepared by the Department. The respondents have contested this appeal, only on the score that appellant has no vested right to claim pro forma promotion and has not controverted the following basic facts:‑

(1) That the appellant is senior to the others;

(2) That promotion was withheld on account of pendency of inquiry which has since been dropped. The other co‑accused have been allowed promotion from due dates; and

(3) That the appellant has been allowed selection grade from the due date.

Once these admissions are taken into consideration the fate of appeal hinges on the decision of the question whether according to the policy of Government the appellant is entitled to promotion in the given circumstances. The most relevant document for the decision of this question is Circular dated 16‑10‑1973. The subject of this Circular is grant of pro forma promotion and relevant portion of the same reads as under:‑

"Pro forma promotion is generally granted in the typical cases mentioned below:‑

(i) ------

(ii) he official is under suspension or facing a departmental inquiry n serious charges and therefore, his promotion is deferred Eventually he is exonerated of the charges and he has to be given pro forma promotion from the date on which he would otherwise have been promoted."

The Government of Baluchistan has issued similar circular which was subject‑matter of interpretation in. judgment Syed Sultan Shah reported as 1985 S C M R 1394. The relevant portion reads as under:?

"It has been brought to our notice that the Government of Baluchistan has from the 17th of May, 1981, recognised this principle and given effect to it. Clause (ii) of the Circular prescribes that when an official was under suspension or facing departmental enquiry on serious charges and his promotion had been deferred, eventually was exonerated of the charges and was given promotion from the date on which he would have otherwise been promoted, the Government servant may be granted pro forma promotion with financial benefit provided it could be held on the basis of his service record and performance that he would have been promoted on the due date but for the circumstances he was incorrectly treated as junior or was facing a departmental enquiry or was overlooked. The fact of pro forma promotion itself implies recognition of entitlement to be promoted from' a date in the past."

I respectfully following the dictum of Supreme Court of Pakistan hold that the appellant is entitled to pro forma promotion from 26‑8‑1985. The appellant is entitled to the relief also for the reason that some of her co‑accused have been allowed promotion from the due date. This is clear discrimination and not permissible under the law.

I accept the appeal, modify the notification dated 8‑7‑1987, attached as Annexure/P. and declare that appellant is entitled to promotion w.e.f. 26‑8‑1985, the date when juniors of the appellant were promoted. There is no order as to costs.

M.Y. H./216/Sr.P ??????????????????????????????????????????????????????????????????????????????? Appeal allowed.