' JUSTICE (R.) TANVIR BASHIR ANSARI (CHAIRMAN).---This appeal is directed against the alleged incorrect fixation of seniority of the appellant as Deputy Educational Advisor (BS-19).
2. Briefly, the facts are that the appellant who was employed in the Ministry of Education as Assistant Educational Advisor (BS-18) since, 1974 was considered for promotion to the post of Deputy Educational Advisor (BS-19) for the first time in the meeting of Central Selection Board held on 29-3-1989. It may be mentioned here that prior to that, as a result of show-cause notice, dated 1-7-1985, minor penalty of "censure" was imposed upon the appellant through notification, dated 15-7-1985. Another show-cause notice dated 26-2-1985 resulted in imposition of major penalty of "reduction in the time scale by one stage" vide notification, dated 4-3-1986. It is also ev?Dent from the record that four adverse remarks were recorded in her A.C.Rs, for the years 1984, 1985, 1986 and 1987.
3. The Departmental Promotion Board proceeded to deduct the following marks from the actual quantification score:-- 5 marks on account of major penalty 3 marks on account of minor penalty 4 marks i,e, one mark for each of the four adverse reports in A.C.Rs, of 1984, 1985, 1986 and 1987.
' Thus after deducting the aforesaid total of 12 marks, the quantification score of the appellant was calculated at 47 against the required threshold of 60 marks for the purpose of C.S.B. Meeting of 29- 3-1989. The appellant was resultantly not recommended for promotion to the post of Deputy Educational Advisor (BS-19) in the CSB meeting of 29-3-1989.
4. The next meeting of C.S.B. Took place on 1-8-1992. Once again the 12 marks upon the same criterion were deducted from the quantification score of the appellant rendering her score to be calculated at 49 which was again found to be short of the threshold of 60 marks. Additionally, a show-cause notice had been issued to the appellant on 28-3-1991. During the proceedings that followed the matter came to be placed before the Establishment Division and the following decision was made on 5-7-1992:--- "It appears that since sufficient grounds did not exist to take disciplinary action against the officer the recourse to obtain special reports was adopted from the officers whose reports labelled as biased and has been done in the instant case. All this does not meet the requirement of the Rules.
Also the show-cause notice issued to Mrs. Qasuri does not specify the penalty proposed to be imposed.
' In view of the above, it would be better if the case is processed in a proper manner by following the correct procedure. The action taken so far will have to be withdrawn/cancelled. This has the approval of Secretary Establishment."
' Keeping the aforesaid in view, the case was not processed any further.
5. Despite this the appellant was once again not found fit for promotion by the C.S.B. Of 1-8-1992 and was deferred upon the grounds that (a) the appellant did not attain the requisite score of 60 but only had 49 marks and (b) that disciplinary proceedings were pending against her.
6. The third C.S.B. Meeting was convened for 4-7-1996. Twelve (12) marks were yet again deducted from the quantification count of appellant on the same ground of the old major penalty, minor penalty and four adverse A.C.Rs, of 1984 to 1987. The appellant was again superseded.
7. The aforesaid led the appellant to file Appeal No,557(R)C.S. Of 2001 on the main ground that repeated deduction of marks from her overall score of the A.C.Rs, by the Promotion Board in 1989, 1992 and 1996 was illegal and that it amounted to double jeopardy with respect to her service prospects. It was urged that even if the imposition of penalties was justified (which was denied) and even if the adverse remarks in the A.C.Rs, of 1984-87 were well-founded (which again was controverted) the deduction could only be made once by the Promotion Board. Reliance was placed on the case of Ijaz Hussain Malik v. Pakistan (Appeal No,30(R) of 1992). This Tribunal through its judgment, dated 22-6-2002 passed the following order in Appeal No,557(R)C.S. Of 2002:-- "(5) We have considered the arguments of both the parties and examined the record placed before us as well as the judgments of the Federal Service Tribunal and the Honourable Supreme Court in Ijaz Hussain Malik's case. In this case the Tribunal has very clearly held that deduction of marks on account of any penalty or adverse remarks out of the overall A.C.Rs, score of the civil servant can take place only once, while considering a case of promotion. We cannot agree with the opinion of the Establishment Division to the contrary. The case of the appellant is identical to that of Ijaz Hussain Malik insofar as repeated deduction of marks is concerned. We, have therefore, no hesitation to accept the appeal and direct that since marks have been deducted out of overall score of the A.C.Rs, in 1989, 1992 and 1996, these cannot be deducted in future by the Departmental Promotion Committee while considering the case of the appellant for promotion."
8. The appellant was finally promoted as Deputy Educational Advisor (BS-19) by the Selection Board with effect from 16-12-2003. The seniority of the appellant in BS-19 was however, reckoned from this date instead of the date when she ought to have been promoted along with her juniors.
The appellant represented against this fixation of seniority in BS-19 through a departmental representation dated 6-4-2004 which has remained unactioned. Hence the present appeal.
9. Sahibzada Ahmad Raza Khan Qasuri, the learned counsel for the appellant contends that firstly the major penalty, the minor penalty and the four adverse remarks for the years 1984, 1985, 1986 and 1987 were not passed upon correct facts and were in fact imposed upon the appellant with a specific mala fide intent. It is submitted that in this view of the matter the Promotion Board was not entitled to deduct any marks from the quantification score of the appellant either in the C.S.B.
Proceedings of 1989, 1992 or 1996. It is urged that the appellant was fully eligible to be considered for promotion even in 1989 as she had achieved the quantification threshold necessary for promotion.
10. It is next contended that in any event, even if it is presumed that the punishments mentioned above were lawfully imposed, the deduction in marks on that account could only be made once i,e, in the year 1989 and that the repeated deductions from the quantification scores of the appellant in the year 1992 and 1996 was wholly illegal. The learned counsel places reliance upon the judgment, dated 22-6-2002 rendered by this Tribunal in Appeal No,30(R) of 1992 titled Ijaz Hussain Malik v. Pakistan. It is submitted that the case in hand is on all fours with the ratio laid down in that appeal.
11. Apart from this, the second factor which prompted the Central Selection Board in deferring the appellant in the year 1992 viz that any departmental proceedings were pending against the appellant was not in accordance with the law. According to the learned counsel the pendency of departmental proceedings is no hurdle in the way of consideration for promotion of an otherwise eligible candidate . Secondly, the departmental proceedings that were set afoot were concluded vide order/recommendation of the Establishment Division, dated 5-7-1992 whereafter the disciplinary proceedings against the appellant were dropped. There was no justification on 1-8- 1992 when the C.S.B. Met for considering promotion of the appellant and others to refer back to the same disciplinary proceedings which were not in the field anymore.
12. It is lastly contended that the deduction from the quantification score on the same basis of penalties and adverse A.C.Rs, was the illegal cause for ordering supersession of the appellant. It is prayed that although the appellant was promoted to the post of Deputy Educational Advisor (BS- 19) with effect from 16-12-2003, the seniority of the appellant must correctly be reckoned from 1989 when the appellant was wrongly superseded on 29-3-1989. According to the learned counsel the impugned seniority list wherein the junior private respondents have been placed above the appellant is liable to be modified so as to place the appellant in her rightful position of seniority in the said list.
13. Mr. Javed Aziz Sandhu, the learned counsel for the respondents submits that the appellant never agitated against the imposition of major penalty, minor penalty and the four adverse A.C.Rs, from 1984 to 1987 and that the imposition of the penalty etc. Shall attain finality. It is contended that the deduction of marks from the quantification score of the appellant was a mere corollary and that the appellant cannot make out a legal grievance of the same. It is further submitted that the shortfall in the quantification score and the pendency of the disciplinary proceedings against the appellant was a just ground for deferring/superseding the appellant in 1989, 1992 and 1996. It is also submitted that as per the judgment passed by this Tribunal in the appellant's earlier Appeal No,557(R)C.S. Of 2001, this Tribunal had ordered for non-deduction of the marks in any future meeting of the Central Selection Board which was complied with by promoting the appellant in the C.S.B. Meeting of 2003.
14. Arguments have been heard and record perused.
15. We are not persuaded to quash either the major penalty, minor penalty or the adverse A.C.Rs, of 1984 to 1987 as the same were not assailed before any appropriate forum at the proper time. We shall, therefore, confine ourselves to the effect of the aforesaid penalties and to the adverse remarks upon the prospects of service of the appellant. The first meeting of the C.S.B. For consideration of promotion of the appellant to the post of Deputy Educational Advisor (BS-19) took place on 23-3-1989. Both in accordance with ratio decidendi of the case of Ijaz Hussain Malik v.
Pakistan (Appeal No,30(R) of 1992) as well as the ratio laid down by this Tribunal in Appeal No,557(R)C.S. Of 2001, we are constrained to hold that deductions by the Central Selection Board could only be made prospectively and that too only once. This being the case, the deductions of the 5 remarks of the major penalty, 3 remarks for the minor penalty and 4 marks for each of the four adverse report for the A.C.Rs, of 1984 to 1987 from the quantification score of the appellant in the C.S.B. Meeting of 1989 was quite in accordance with law. The result of this deduction is that the quantification score of the appellant fell far short of the threshold of 60 marks and thus, the decision of the C.S.B. That the appellant was not recommended for promotion appears to be well- reasoned and justified. Even if the converse was true and the twelve marks were not liable to be deducted, even then the appellant did not qualify to be eligible for promotion in 1989 as her quantification score would still be 47+12=59 which would again be short of the threshold of 60. We, therefore, negate the claim of the appellant that she was entitled to be promoted with effect from 29-3-1989 or that her seniority is liable to be reckoned from the said date.
16. There is however, substance in the submission of the learned counsel for the appellant that having deducted the marks from the quantification score of the appellant once, the C.S.B. Was not justified to deduct the same marks in any subsequent meeting of the C.S.B. Wherein the case of promotion of the appellant was to be considered. Having once been deferred or superseded on the basis of deduction, it shall not be the intention of the rule-makers that marks should be deducted each time the case comes up for consideration by the Board. This certainly would amount to double jeopardy as no one can be prosecuted or punished more than once for the same offence.
This practice is clearly violative of Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 which provides that "no person shall be prosecuted or punished for the same offence more than once". Repeated deductions of marks whenever a Promotion Board met for considering the case of promotion of a candidate are negated by the principle of "autre fois convict and autre fois acquit".
This Tribunal has effected this rule of law in the case of Ijaz Hussain Malik v. Pakistan in Appeal No,30(R) of 1992. Leave to appeal was not granted to the Federation by the Honourable Supreme Court against this judgment of the Tribunal. This principle of law was followed by this Tribunal while deciding the earlier appeal of the appellant bearing No,557(R)C.S. Of 2001 in its judgment, dated 22-6-2002.
17. We are also cognizant of the fact that the other factor which influenced the C.S.B. Of 1992 to hold that the appellant was not fit for promotion was the pendency of disciplinary proceedings against her. A perusal of the record shows that the Central Selection Board erred on this count also.
Although a show-cause notice had been issued to the appellant on 28-3-1991 yet during the proceedings that followed, the matter came to be placed before Establishment Division on 5-7- 1992, when it was found that the allegations were not in accordance with law and that the action be withdrawn/cancelled. Resultantly the matter was not processed any further and would be deemed to have been dropped. This being the position when the C.S.B. Met on 1-8-1992, there was obviously no justifiable reason for the C.S.B. To defer the appellant on this ground also.
18. The third C.S.B. Meeting for the purpose took place on 4-7-1996. For the third time in succession the twelve (12) marks were yet again deducted from the quantification count of the appellant. The appellant was again ordered to be superseded. The matter appears to have been finally set at rest by the judgment of this Tribunal in Appeal No,557(R)C.S. Of 2001 which was not challenged any further.
19. It is manifest from the record that although in pursuance of the judgment of this Tribunal passed in Appeal No,557(R)C.S. Of 2001 the appellant was finally promoted on 16-12-2003, the seniority of the appellant in BS-19 was reckoned from this date only instead of the date when she ought to have been promoted.
20. Mr. Javed Aziz Sandhu, the learned counsel for the respondents has laid great stress upon the fact that this Tribunal had specifically stated in its judgment, dated 22-6-2002 that "we have, therefore, no hesitation to accept the appeal and direct that since marks have been deducted out of overall score of the A.C.Rs, in 1989, 1992 and 1996, these cannot be deducted in future by the Departmental Promotion Committee while considering the case of the appellant for promotion". It is urged that as the embargo for deduction in marks for future was lifted, the deduction was not made after 1996, the appellant was promoted in 2003 and her fixation of seniority in BS-19 from her date of actual promotion in that scale was rightly made.
21. We do not find any force in this contention of the learned counsel for the respondents. The entire findings have to be understood in the broader context of the case. Once it had been categorically held that repeated deduction of marks upon the same cause was illegal, any deduction with their consequential effect after the factum of the first deduction would be null and void and would not have any adverse effect upon the promotion of an otherwise eligible candidate.
22. We are also not unmindful of the fact that during the pendency of the instant appeal, a show- cause notice was again issued to the appellant on the same grounds. The show-cause notice pertains to the same old record such as the A.C.Rs, for the year 1984-87 and/or supersession in the year 1996. Upon a separate petition moved in this behalf, this Tribunal had vide order, dated 14-2- 2006 restrained the respondents from taking any adverse action against the appellant on that score.
23. In view of what has been discussed hereinbefore, we find that the said show-cause notice is also without any legal basis and we proceed to quash the same. Resultantly, the appeal is accepted to the extent that the appellant shall be deemed to be fully eligible to be considered for promotion when her case was considered on 1-8-1992 and could not have been deferred or superseded on any ground whatsoever. Similarly, her order for supersession in the C.S.B. Meeting of 4-7-1996 is without lawful authority. The appellant who was denied promotion with effect from 1-8- 1992 for no fault of her own shall be entitled to count her seniority as Deputy Educational Advisor (BS-19) with effect from 1-8-1992 and shall consequentially be entitled to fixation/re-fixation of her pay accordingly.
24. There shall be no order as to cost. Parties be informed.