Abdul Hameed Dogar, CJ.--Through this petition, petitioner seeks leave to appeal against judgment dated 31.10.2007 passed by learned Federal Service Tribunal, Islamabad whereby Appeal No, 992(R)CS of 2004 filed by him claiming promotion with effect from 30.7.2004 instead of 26.12.2005 was dismissed.
2. Briefly, stated facts giving rise to the filing of instant petition are that petitioner joined his services as Sub-Engineer (Grade-II) in Engineer-in-Chiefs Branch on 10.4.1986 and subsequently promoted to the post of Sub-Engineer (Grade-I). Respondent No, 2 vide Order No, 1017/9/EIE dated 11.8.2004 promoted Sub-Engineers junior to petitioner as AEE/M, ignoring the criteria laid down for the promotion. Feeling aggrieved, petitioner filed departmental representation to Respondent No, 1 which was not responded despite the lapse of statutory period of 90 days. As such, he filed appeal before the learned Federal Service Tribunal, Islamabad on 30.11.2004 which was admitted for regular hearing. During the pendency of Appeal, the petitioner was promoted as AEE/M vide order dated 6.1.2006 with effect from 26.12.2005 but not from due date i,e, 30.7.2004. Thus, he filed amended appeal which came up for hearing and was dismissed vide impugned judgment as stated above.
3. We have heard Mr. Muhammad Shoaib Shaheen, learned counsel for the petitioner, Ms. Nahida Mehboob Ellahi, learned DAG and private respondents appearing in person at length and have gone through the record and proceedings of the case in minute particulars.
4. It is vehemently contended by learned counsel for the petitioner that the impugned judgment of the learned Federal Service Tribunal is against the facts and law. According to him, petitioner had been superseded because of adverse remarks contained in his ACR for the year 1999 which were never conveyed to him. He referred to para 3.1(vii) of the Performance Evaluation Guide wherein it has been stated that a confidential report containing adverse remarks should not be taken into consideration until it has been communicated in writing to the officer concerned within one month from the date the report is countersigned. He further contended that the ACR in question is for the period from 5.10.99 to 31.12.1999 and in view of para 2.24A(i) of the Performance Evaluation Guide it should not be considered as the period is less than three months. In support he placed reliance on the cases of Abdul Jabbar Khan v. Government of Sindh (1996 SCM R 850) and Muhammad Farooq Chauhan v. The Province of Punjab (PLD 1987 SC 271).
5. When confronted with the above contentions of learned counsel for the petitioner, learned Deputy Attorney General could not controvert the same and admitted that ACR is for a period less than three months which cannot be considered against petitioner.
6. The respondents have not brought anything on record showing that adverse remarks were communicated to the petitioner within the time as contemplated by the Rules. Non- communication of adverse remarks makes the authenticity of such remarks ineffective and petitioner cannot suffer the consequences of any adverse order until the same was communicated to him enabling him to.. challenge the same before competent forum. It was held by this Court in the case of Muhammad Farooq Chauhan referred (supra) that in case of promotion, the adverse remarks would be ignored only if they are not communicated. It was also held by this Court in the case of Abdul Jabbar (supra) that if a civil servant, who has not been considered for promotion at a stage and is subsequently promoted and no order for inter se seniority has been passed by the competent authority, then such civil servant would be entitled to have been promoted in the same batch as his juniors, meaning thereby that he will maintain the seniority of his batchmates.
7. In view of above, this petition is converted into appeal and is allowed. The impugned judgment of the learned Federal Service Tribunal, Islamabad is set aside. The appellant shall be entitled for promotion from the date his juniors were promoted. No orders as to cost.