' SYED DEEDAR HUSSAIN SHAH, J.--- Petitioners seek leave to appeal against the judgment of the Federal Service Tribunal, Islamabad (hereinafter referred to as the Tribunal), dated 12-9-2003, passed in Appeal No,462(R)CS of 2002.
2. Brief facts leading to the present petition are that respondent's case for promotion as Assistant Director (BP-17) was considered in the meeting of the Departmental Promotion Committee (DPC) held on 15-5-1984, but was not recommended due to the pending disciplinary proceedings against him. In this regard an inquiry was held but the charges were not proved against the respondent.
Resultantly, he was exonerated by the authorized officer vide order, dated 27-11-1985. However, under rule 6(a) of the Government Servants (E&D) Rules, 1973, the competent authority issued Show-Cause Notice, dated 9-7-1986 to the respondent. Consequently, the DPC in its meeting held on 7-12-1987 deferred the respondent's promotion pending final decision. Respondent was awarded minor penalty of Censure and recovery of Rs,72,435 plus interest thereon vide order, dated 4-8-1988. In another DPC meeting dated 31-12-1988 the respondent was again deferred because of unsatisfactory service record as well as for the reason that his departmental appeal was pending decision, even though the appellate authority vide order dated 24-12-1988 had modified the penalty for recovery of Rs,72,435. Meanwhile, respondent was sent on deputation in the Finance Division w,e,f, 14-1-1989 and in the DPC meeting dated 14-10-1989 it was decided "not to recommend him" on the ground that there was a penalty to his credit and he could not be promoted till his repatriation and earning three good reports. In a DPC's meeting held on 3-8-1992 it was also decided not to recommend him for the same reason. Respondent came back to his parent department on 16-21994. In the meantime, respondent's service appeal against the appellate order dated 24-12-1988 retaining the penalty of recovery of Rs,72,435 had been accepted by the Tribunal vide judgment dated 9-9-1992 and there was no more penalty against him, but the DPC in its meeting held on 7-11-1994 recommended his deferment saying that he should earn one good report. In June, 1997, respondent was again posted out on deputation in the Prime Minister's Secretariat and returned on 17-5-1999. The DPC held on 14-9-2000 deferred him till he earned one good report in his parent department. Finally the DPC in its meeting held on 23-1-2002 recommended his case for promotion. Against the aforesaid order, dated 23-1-2002, respondent filed departmental appeal, dated 27-2-2002, which was unresponded. Thereafter, he filed appeal before the Tribunal, which was accepted to the extent that the respondent's seniority will be reckoned w,e,f, 12-9-1984 when his junior was promoted instead of 7-12-1992. Hence, this petition by the department.
3. Mr. Nasir Saeed Sheikh, learned Deputy Attorney-General appearing on behalf of the petitioners, inter alia, contended that the judgment of the learned Tribunal is not in consonance with law, which has resulted in miscarriage of justice; that the Tribunal has no jurisdiction to entertain and decide the appeal of the respondent in view of section 4(1)(b) of the Service Tribunals Act 1973. In support of his contentions learned counsel has relied on Gcvernment of Pakistan v. Hameed Akhtar Niazi PLD 2003 SC 110.
4. On the other hand, Shah Abdur Rashid, learned Advocate Supreme Court for the respondent vehemently controverted the contentions of the learned counsel for the petitioners and submitted that the impugned judgment of the Tribunal is entirely in consonance with law, which does not require any interference by this Court. In support of his submissions learned counsel referred to Deputy Inspector General of Police, Gujranwala and others v. Anwar Saeed, Inspector Police and others 1997 PLC (C.S.) 584.
5. We have considered the arguments of learned counsel for the parties and very carefully gone through the record available. The promotion of the respondent was deferred by the authority as he was on deputation whereas the minor penalty of censure was also set aside and the Tribunal allowed the appeal of the respondent against the penalty of recovery of Rs,72,435. It is borne out from the record that respondent's case was deferred by observing that he should earn one good report. He was again posted on deputation in the Prime Minister's Secretariat in June, 1997 and returned back on 17-5-1999. Again in DPC meting held on 14-9-2000 he was deferred till he earned one good report in the parent department. Thereafter, DPC in its meeting dated 27-1-2002 recommended his case for promotion. Perusal of the record also shows that respondent earned five good/very good/outstanding ACRs for years 1987, 1988, 1989, 1990 and 1993. It further reveals from the record that the respondent also completed successful training for language course abroad. It is also crystal clear from the record that one Shafiq Ahmad, who was junior to respondent, was promoted on the recommendation of the DPC held on 3-8-1992.
6. We have also thoroughly studied the case-law referred by the learned counsel for the parties.
The citation cited by learned counsel for the petitioner, in our humble opinion, is not applicable to the case in hand, whereas the case-law referred to by learned counsel for the respondent is helpful in his case. The impugned judgment of the learned Tribunal is entirely in accordance with law laid down by this Court. It would be advantageous to refer here paras 5 and 6 of the impugned judgment, which read as under:--- "5. We have considered the arguments advanced by both sides and perused the record carefully. It would be pertinent to reproduce the relevant provisions of Guidelines to DPC/CSB, as mentioned at pages 233 and 234 of ESTACODE 2000.
"1. General.
1. The DPC/CSB shall consider the cases of eligible civil servants in order of seniority and either:--
(a) Recommend a civil servant for promotion to the next higher post; or
(b) recommend a civil servant for supersession; or
(c) defer consideration of a civil servant's promotion provided that this step will be taken only if:--- -
(i) the CR dossier is incomplete or any their document/information required by the DPC/CSB for determining a civil servant's suitability for promotion is not available; or
(ii) disciplinary or departmental proceedings are pending against the civil servant whose promotion case comes up for consideration before the DPC/CSB; or
(iii) the civil servant is on deputation abroad to a foreign. Government, private organization or international agency; or
(iv) the civil servant does not possess the requisite length of service; or
(v) the civil servant has not undergone the prescribed training or passed the departmental examination for reasons beyond his control; or
(vi) the civil servants inter se seniority is sub judice.
2. If a civil servant is superseded he will not be considered for promotion unless he has earned one more CR for one full year.
3. The civil servant whose promotion has been deferred will be considered as soon as the reason on the basis of which deferment took place ceases to exist provided that a civil servant falling in the category mentioned in I(c) (iii) above will be considered for promotion only on his return to Pakistan. If such an Officer fails to return on expiry of his approved deputation period, he will have to earn at least one ACR after his return to Pakistan before he is considered for promotion.
4. For the purpose of consideration by the. DPC/CSB the ACRs will be quantified according to the formula 'given in the addendum. The civil servants who fail to come In to the qualifying score shall not normally be considered for promotion. Relaxation of this condition may only be recommended by the DPC/CSB after recording detailed reasons for the approval of the competent authority."
6. Reading the above quoted instructions in conjunction with the minutes of DPC meetings held from time to time, we are of the opinion that supersession of the appellant in 1984, 1990 and 1992 had no legal basis. We are conscious of the fact that consideration for promotion lies in the domain of the DPC and the competent authority but only as long as it conforms to law/rules and not otherwise. As for the objection that all departmental decisions pertaining to the appellant had attained finality, suffice it to say that the minutes of the meeting of DPC held on 23-1-2002 had reopened the issue of antedation and that the impugned order had also given the appellant fresh cause of action."
7. For the facts, circumstances and reasons mentioned hereinabove, this petition is without merit and substance, which is hereby dismissed and leave to appeal declined.