CH. MUHAMMAD ILYAS (MEMBER).--- The appellant felt aggrieved for having been superseded despite being senior to private respondents Nos. 4, 5 and 6 who were promoted vide impugned order, dated 19-4-2003. He had also been earlier ignored and his junior Mr. M. Ilyas Haji was promoted vide office order dated 15-6-2001 whom he did not implead as a necessary party because he stood retired on 18-1-2003. He filed a combined departmental appeal against all the four juniors on 14-4-2003 which was forwarded by General Manager (Hydel) WAPDA to the Managing Director (Power) WAPDA, Lahore and rejected vide impugned order dated 21-4-2003 informing the appellant that "the promotion from Superintending Engineer to Chief Engineer is a selection rank and best out of lot is selected by the Selection Board. Your case will be reconsidered for promotion after earning a full year ACR". The appellant came to the Tribunal through the instant appeal filed on 19-5-2003. -As stated in the Memo. Of Appeal, the appellant was given additional charge of the post of Chief Engineer (Hydel) WAPDA,. Warsak after the retirement of Mr. M. Ilyas Haji on 18-1-2003 and he worked in that capacity upto 21-4-2003 when he was once again superseded by three other juniors vide impugned order dated 19-4-2003.
2. The learned counsel for the appellant argued that the impugned orders were arbitrary and void because the ACR dossier of the appellant was not completed/updated and made available by the respondents when his promotion to the post of Chief Engineer was placed before the Promotion Board, both in September 2001 and April, 2003 and that he was never informed on both the occasions that his ACR for the year 1997 was not available. He alleged that the respondents suppressed the material fact that the real reason for non-promotion was, in fact, the missing ACR for the year 1997. He was simply informed that the best of the lot was selected and that his case would be considered after earning another year's report. The learned counsel argued that the appellant did not know till that time whether he had been deferred or superseded and that in the event of his dossiers being incomplete, he should have been deferred as per para.1(c)(i) of the Promotion Guidelines. He argued that the ACR dossier of the appellant was not completed for no fault of the appellant. He submitted that the ACR for the year 1997 had also been, in fact, forwarded by the General Manager (Power) to Managing Director (Generation) vide his Letter No,GM(P)/PA- 12/622-28, dated 14-2-1998. The matter subsequently remained under correspondence as below: 23-12-1999 The appellant was informed by General Manager (Admn) WAPDA letter for the first time that his ACRs for 1997 and 1998 were not available.
17-2-2000 The appellant replied to the Project Engineer WAPDA, Warsak that his ACR for the year 1997 had been completed by Mr. Afzal Latif Puri, the then General Manager (Power) Terbela and sent to Mr. Aftab Ahmed Leghari, the then Managing Director (Generation) vide letter No,GM(P)/PA- 12/622-28, dated 14-2-1998 whereas the ACR for the year 1998 had been completed by Ch. Fazal Ahmed, the then Chief Engineer (H) North WAPDA, Warsak and sent to Ch. Ghulam Rasool, the then General Manager (Hydel) vide letter No, CEM/CE1A/98/67-69 dated 10-2-1999.
24-3-2001 He was once again informed that his ACR for the year 1997 was missing.
30-3-2001 He replied by reiterating the position as had been said vide his letter dated 17-2-2000 followed by a reminder of 5-12-2001 to General Manager (Admn.) WAPDA and requested for a confirmation that his ACR dossier was complete for processing his promotion case.
19-3-2003 He was, however, informed vide letter dated 19-3-2003 that his ACR for the year 1997 was not available on record and that he should complete his record so as to reach the General Manager WAPDA's Office by 25-3-2003.
22-3-2003 He once again reiterated that his report had already been completed and sent by General Manager .(Generation) to General Manager Career Management WAPDA.
2-4-2003 He, finally sent a duplicate ACR form to Mr. Afzal Latif Puri, by enclosing therewith WAPDA letter, dated 19-3-2003 and with reference to the correspondence exchanged on the subject.
12-4-2003 The General Manager (Hydel) WAPDA sent confidential report of the appellant for the year 1997 to the General Manager (Admn) WAPDA.
' The learned counsel for the appellant argued that it was evident from the above correspondence that, notwithstanding the responsibility for completion of the record to be basically that of the department, the appellant took pains to have the matter sorted out through a persistent correspondence. He was genuinely under the impression that his case for promotion had been deferred and that he was never informed that he had been superseded. It also evidenced the causal approach of the department that they informed him of the non-availability of the ACR only shortly before the holding of the Promotion Board on 24-5-2001 and 2-4-2003 while they did nothing to trace out the missing report with the help of the information promptly provided by him each time that he was informed of the missing report. He argued, that, be that as it may, the appellant in any case should have been deferred rather than superseded if his record was not complete. He also cited the case of Anisa Rehman reported 1994 SCMR 2232, the impugned order of dismissal from service not being maintainable was set aside and it was established that though a person dismissed or removed did not have any right to claim reinstatement yet a claim of damages as compensation was considered in order as was also held vide 2007 PLC (C.S.) 550 that the appellant already having stood retired from service on attaining the age of superannuation, reinstatement order could not be passed but he would be entitled to payment of all back-benefits from the date of his dismissal to the date of retirement. The learned counsel relied on the dictum laid down vide 2005 PLC (C.S.) 579 wherein, in similar circumstances, "no cogent reason had been advanced as to why the petitioners who were admittedly senior to some of the respondents were ignored and why juniors were promoted. The reason was that the ACRs were not complete so their cases were not considered and that ground could not be allowed to be a sole foundation to deprive the petitioners from being considered to be promoted because the duty to fill up ACR lay with the superior officers.... Remissness of superior officer could not be made a ground to deprive the civil servants of their rights and on that basis their cases could not be ignored for consideration" to argue that, in the appellant's case, it was tantamount to preventing the official from performing higher duties without giving any cogent reason and being ignored at the time his juniors were promoted. He summed up his arguments to argue that it is not a case of ante-dation but grant of promotion from back date to a retired official and relied upon 2007 SCMR 1355 to insist that the appellant had to be paid salary for higher post for the period he was not allowed to perform the higher duties because of his non-promotion owing to none of his fault for incomplete service record and that he was entitled to promotion from the date his juniors were granted promotion. The contention of the learned counsel for the appellant in Civil Appeal No,1599 of 1999 (Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi, Academy of Administrative Walton Training, Lahore and others). (On appeal from the judgment, dated 7-12-1998 of Federal Service Tribunal, Islamabad passed in Appeal No,124(L) of 1980) is correct and that the Tribunal could not ante-date of Mr. Niazi besides the judgment in Niazi's case was in personam and not in rem.
3. The learned counsel for the respondents contended that the appeal was not maintainable having become infructuous after superannuation of the appellant on 9-3-2006 and that in any case he was cleared for promotion on 21-4-2004 during the pendency of his appeal and before his superannuation on 9-3-2006 and that in case he wanted to claim higher pay of the post on the basis of a claim for pro forma promotion, he should have submitted an amended appeal. He also argued that no ante-dation of promotion was allowed in view of the dictum laid down vide 2003 PLC (C.S.) 212. The learned counsel for the appellant, however, rebutted that the judgment 2003 PLC (C.S.) 212 is in personam and not in rem. The learned counsel for the respondents argued that all reported judgments are in rem. He argued that the appellant was superseded in 2003 due to his weak record of service and `other reasons' and he was informed that only the best of the lot was selected as Chief Engineer which is a selection post. He argued that perusal of section 9 of Act, 1973 unequivocally postulates that criterion for selection for promotion to the higher-grade rests upon the decision of the Competent Authority. No other forum/authority can assume the duties which specifically have been assigned to the Competent Authority. In regard to pro forma promotion, he relied on 1985 PLC (C.S.) 26 to stress that " it could not be claimed as a right and it was absolutely for the department to see that the circumstances of the case it could be granted pro forma promotion. In this case before us we are in accord with the department when we find that at this belated stage if pro forma promotion granted to the appellant from 1968, it will definitely change the entire structure of the cadre and will open floodgate of litigation amongst its strength."
(Muhammad Saleem Bhatti v. Secretary to Government of Punjab, Agriculture Department, Lahore and 2 others). He further argued that not a word has been mentioned in the appeal of the appellant for pro forma promotion which has been argued by the learned counsel for the appellant to be allowed to him. He also argued that the appellant was promoted on 21-4-2004. He also said that the appellant had not impugned his supersession made vide order, dated 15-6-2001.
4. The learned counsel for the appellant argued in rebuttal that the appellant's prayer is complete in all respects for the relief being sought. In regard to the appeal against the order, dated 15-6- 2001, he said that a joint appeal was made against both the orders, dated 15-6-2001 and 19-4-2003 and it was considered and rejected on merit and the appellant's contention in Ground No,8 that promotion of the appellant to the post of Chief Engineer in October, 2001 meeting was not considered in accordance with rules was not denied. He emphasized that in the circumstances of the case, the departmental authorities should consider granting him a pro forma promotion in pursuance of section 9 of the Civil Servants Act, 1973 read in conjunction with the dictum laid down vide 1985 PLC (C.S.) 26 cited above, especially when it is not going to cause any complication to the cadre or structure of the service as here only a personal claim for pay and pension is involved.
5. We asked for the Minutes of the Meetings of the Senior Selection. Board held on 24-5-2001, 2-4- 2003 and 21-4-2004. It is observed therefrom that the status of the ACRs for the last five years was mentioned in the working papers along with 6 other elements of the overall ACR score and score for integrity and, quality of output, enquiry position and the status of the senior management course and the remarks by the department which were made the basis of the Board's decision declared as fit/superseded or deferred, as the case may be. In the status of the reports the appellant's report of 1997 was shown as not available in the meeting held on 24-5-2001. Only two officials at Serial Nos.2 and 3 namely S.S. Tanveer Hussain and Ghulam Saghir with overall score 77.3 and 76.2 respectively were declared fit as against the appellant at Serial No,4 with score of 74.6 was superseded whereas only two other persons superseded were at Serial Nos.1 and 5 who did not meet the threshold. The appellant was shown as attending the Senior Management Course. The other persons including Serial Nos.8, 9 and 10 who had higher score than the appellant were deferred for not having attended the Senior Management Course. The reasons for the appellant's supersession were not mentioned. In the meeting of 2-4-2003, while the report of 1997 was still shown as not being available, he was allowed two additional marks as Instructor in Training Institute raising his overall score to 78.6 which was higher than that of Mr. Abdul Rashid, serial No,9 of the three persons declared fit whereas the appellant was once again superseded for the stated reasons of weak record and other reasons'. In the meeting of 21-4-2004, he was declared fit with the overall score of 77.9 along with another official with score of 76.1.
6. Heard the arguments and perused the record. No reason was recorded for the supersession of the appellant on 24-5-2001. Despite the ACR of 1997 being not available, his score of 74.6 was comparatively better than that of 72.3 of his junior at Serial No,7, namely Mr. M. Ilyas who was declared fit. The learned counsel for the appellant is justified in arguing that the appellant deserved to be deferred pending completion of his record and his Senior Management Course that he was attending at B the time as was done in the case of all others who had not attended the course. It also belied the respondent's reply that the best of the lot was selected. Similarly in the meeting of 2-4-2003, his report for 1997 still being not available, his score was 78.6 but he was superseded for the recorded reasons of " weak record and other reasons" whereas another official, Mr. Abdul Rashid with lesser score of 76.7 was declared fit hence his record was not comparatively weak and " other reasons" of his supersession were also not specified. On 21-4-2004 he was declared fit with the overall score of 77.9 which though highest of the others', was yet lesser than 78.6 when he was considered on 2-4-2003. He had higher score than the minimum threshold when his case was considered on all the three occasions. Being thus, unjustified, we convert his supersession on 24-5-2001 and 2-4-2003 to deferment. However, in the wake of his superannuation during the pendency of the appeal, his promotion cannot be ante-dated through a reconsideration of his promotion nor he could be reconsidered by the Selection Board in view of the dictum laid down vide 2003 PLC (C.S.) 212. As the appellant came to the Tribunal on 19-5-2003 before his superannuation on 9-3-2006 when his appeal had already been pending with the Tribunal for three years, it is a factor that was beyond his control. Had it been decided before he superannuated, his case could have been considered for retrospective promotion by the Selection Board with effect from the date of the deferment as has now been judicially determined to be the case. Earlier he suffered for want of non-completion of his record, a factor that was beyond his control and now he is likely to suffer again if the dictum of non-ante-dation of promotion on account of his retirement which constitutes again a factor beyond his control is rigidly applied against him. There is, nevertheless, a redeeming feature in his case that he was declared fit for promotion on 21-4-2004 during the pendency of his appeal. Now after conversion of his earlier supersessions into D deferment as decided above by us entitles him to a consideration for promotion from the date he was superseded and that consideration has already taken place as he was declared fit for promotion on 21-4-2004. We, therefore, hold that the department may extend the fitness determined by the Selection Board for his promotion on 21-4-2004 to also cover the earlier periods of deferment for the purpose of granting him pro forma promotion from the date his juniors were promoted and this is what has been prayed for that he be given the benefit of pay of the higher post as he was technically prevented from working in terms of the dictum laid down vide 2007 SCMR 1355, 1985 PLC (C.S.) 226, 1994 SCMR 2232 and 2005 PLC (C.S.) 579 and relied upon by the learned counsel for the appellant in his arguments.
7: In view of the foregoing, we hold that as analyzed and determined in paras.5 and 6, the appellant's supersession on 25-4-2001 and 2-4-2003 was not justified and convert that into deferment for the reasons mentioned in the same paragraphs and since he happened to be promoted on 21-4-2004 during the pendency of his appeal, he is entitled to pro forma promotion from the date his immediate junior was promoted with benefit of fixation of pay from 24-5-2001 with all consequential pensionary benefits.
8. No order as to costs. Parties be informed.