ALI AHMAD KHAN vs THE POSTMASTER GENERAL, NORTHERN PUNJAB AND AJK, RAWALPINDI and another
This matter concerns a petition for leave to appeal against a judgment of the Federal Service Tribunal, which dismissed the petitioner's challenge to the seniority assigned to a colleague (respondent No. 2). The core legal question was whether a civil servant, who was promoted to a selection grade but delayed in assuming duties due to the department's failure to relieve him from his previous post, could be granted seniority retrospectively from the date of his original promotion. The Supreme Court upheld the Tribunal's decision, finding that the respondent's delay in joining the new cadre was not due to his own fault but rather the department's failure to relieve him. Consequently, the Court held that the competent authority acted correctly in rectifying the situation and restoring the respondent's seniority, as the respondent was legally entitled to the position. The Court concluded that no substantial question of law was raised, as the department's action was a valid administrative rectification of a wrong, and accordingly refused leave to appeal.
- Can a civil servant be granted seniority retrospectively if the delay in assuming a promoted post was caused by the department's failure to relieve them?
- Does an administrative rectification of a seniority list based on departmental error raise a substantial question of law?
ORDER
' SHAFIUR RAHMAN, J.---The petitioner, a civil servant seeks leave to appeal against the judgment of the Federal Service Tribunal, dated 27th of March, 1989, whereby an appeal filed by him against the seniority assigned to respondent No, 2 was dismissed.
2. The respondent No, 2 was senior to the petitioner in the lower grade and they were promoted to the selection grade on the same date. The respondent No,2 was discharging duties on some other post from which he was not relieved to take up the appointment and when he was relieved, many years had passed. The question arose as to what should be the seniority assigned to respondent No,2 after he was allowed to go back to the post in selection grade. The petitioner represented that he should not be brought back at all nor given seniority over him. The department did not accede to his request and kept the respondent No,2 senior. The petitioner brought the matter before the Service Tribunal which recorded the following finding:- ... He was not relieved to join the cadre of LSG in BPS-9. When he became available he was posted to LSG cadre. The respondent No, 2 was deprived of his emplacement in the cadre of LSG for no fault of his. The appellant in these circumstances cannot challenge his reposting to the LSG cadre retrospectively with effect from the date he had originally been promoted to that cadre. The removal of the name of the respondent No, 2 from the LSG cadre was rectified subsequently during the pendency of this appeal by order dated 14-1-1989."
3. The learned counsel for the petitioner contended that after the name of the respondent No, 2 had been struck off, from the selection grade list, he could not be brought back and even if brought back, he could not be given the benefit of earlier selection when years had passed to it.
4. It is not denied that it was not out of choice that the respondent had stayed out. He was not relieved. For that reason alone amends were due. In keeping the selection due till such time as he was not relieved for taking up the appointment, the competent authority has in fact recognized the right to which the respondent No, 2 was legally entitled. No question of law arises in the case and leave to appeal is refused.