Appellant was considered for promotion to the rank of District and Sessions Judge by the Promotion Committee of this Court, in April, 1997. His case was subsequently reconsidered in December, 1997 and was deferred for a period of three years. Some adverse remarks, pertaining to the period from September, 1999 to December, 1999, were conveyed. The appellant approached this Court and filed a representation, as a result thereof, the adverse remarks were expunged and ultimately he was accorded promotion as Additional District and Sessions Judge in October, 2002.
The representation for pro forma promotion w,e,f, April, 1997, was declined and conveyed through order dated 23-7-2005.
' Appellant has now assailed, in this appeal, under section 5 of the Punjab Subordinate Judiciary Service Tribunal Act, 1991, the decision conveyed through letter dated 23-7-2005.
2. It is contended that pendency of an inquiry or a case, is not impediment for denial of promotion to a civil servant. Learned counsel has referred to the cases of N.A. Qureshi v. Government of the Punjab and 2 others PLD 1982 Lah. 242, Dr. Waseem Asmat Chaudhry v. Chairman and Dean Sheikh Zayyed Hospital and Post-Graduate Medical Institute, Lahore 1999 SCMR 2364 and Sheikh Muhammad Riaz v. Government of the Punjab and another 2003 PLC (C.S) 1496. While referring to the cases of Tajammal Hussain v. Inspector-General of Police, Punjab, Lahore and 25 others 1985 PLC (C.S.) 848, Nazir Ahmad v. Deputy Inspector-General of Police, Faisalabad and 30 others 1986 PLC (C.S.) 228, Capt. Sarfraz Ahmad Mufti v. Government of the Punjab and others 1991 SCMR 1637, it is contended that minor penalty is no bar for promotion. Learned counsel went on to argue that it is well settled that the promotion is to be made from the date of occurrence of vacancy. Learned counsel supported this contention, while relying upon the case of Government of the Punjab and another v. Rana Ghulam Sarwar Khan and 111 others 1997 SCMR 515.
3. Mr. Nayyar Iqbal Ghori, Advocate has submitted that the appellant has retired from service on 4- 8-2004 and his representation was rejected on 23-7-2005, while this appeal was filed on 22-8- 2005. The appeal is not competent after the retirement of the appellant. He has submitted further that it is prerogative of the respondents to accord promotion and promotion cannot be claimed as a matter of right.
4. Heard learned counsel for the parties and record perused.
5. We will first take up the matter of maintainability of this appeal. The amendment dated 13-4- 2005 in Punjab Civil Servants Act, is reproduced hereunder:- "Amendment in section 8 of the Act VIII of 1974. In the said Act, section 8 shall be substituted by the following:--- "8. Protnotion.--- (1) A civil servant shall be eligible to be considered for appointment by promotion to a post reserved for promotion in the service or cadre to which he belongs in a manner as may be prescribed; provided that he possesses the prescribed qualifications.
(2)
(3)
(4)
(5) A retired civil servant shall not be eligible to promotion or pro forma promotion."
6. The amendment, on it's mere perusal, reflects that it has prospective effect. The appellant, in the instant case has retired on 8-4-2004 i,e, prior to the amendment in the Punjab Civil Servants Act.
The amendment, in section 8 of the Act VIII of 1974 has no application to the case in hands. The apex Court, in the case of Federation of Pakistan v. Syed Muhammad Farooq and another 2005 PLC (C.S.) 1424, after rescission of the leave grant order, directed the appropriate authority to reconsider the case of the late employee, who was found to be entitled for promotion for the post of Director-General with the further direction to extend the pensionary benefits to his legal heirs.
7. We, therefore, have no hesitation to hold that the retirement of the appellant was prior to the amendment and the appeal was also prior to the amendment. Therefore, the appeal for according the appellant pro forma promotion is competent in this Tribunal.
8. The appellant was eligible for promotion in April, 1997. The adverse remarks, which resulted into deferment of his promotion, were subsequently expunged, when his representation, was accepted.
The sole reason for deferment of the promotion was the existence of adverse remarks, which now stand expunged, thus, the cause for which the appellant's promotion was deferred, no more exists.
It will be advantageous to reproduce herein relevant part of the judgment, wherein identical issue was discussed by this Tribunal as under:--- "Admittedly, the appellant along with his batch mates, was considered for promotion, but on account of adverse remarks recorded in his ACR, he was ignored and batch mates including his junior, wore promoted vide Notification dated 13-3-2001. The basic cause, which had created hurdle in way of his promotion, was adverse remarks, which were expunged by this Tribunal through order dated 24-7-2003, passed in Appeal No,18 of 2002, thus it became nonexistent. The appellant had no role to play in the ACR in question nor it was result of any fault on his part. Denial of promotion to the appellant with the batch mates including his junior would lead to injustice.
' A civil servant whose promotion is withheld in view of certain charges against him becomes eligible to promotion along with his batch mates, when he is exonerated of such charges, therefore, he cannot be deprived of his seniority and promotion along with his batch mates. As authority for this proposition we may refer to the cases of "Walayat Khan (supra) and Aziz Ahmad Hashmi, Chairman, BISE, Bahawalpur (supra). The reference to the case of D.I.-G. Police, Gujranwala v.
Anwar Saeed (supra), needs specific mention whereby the apex Court while refusing to grant leave to appeal has emaciated that the learned Service Tribunal was right in holding that the civil servant cannot be deprived of seniority and promotion along with his batch mates when he has been exonerated from the inquiry."
9. Besides, the Government of Punjab, vide Notification No,S.R.O.II(S&GAD)259/78 dated 19-4-2003, has reviewed the pro forma promotion policy as under:- "II: Seniority and pro forma promotion.
' It is clarified that pro forma promotion is not a necessary prerequisite for the determination of seniority of a civil servant. Inter se seniority of a civil servant is determined under section 7(4) of the Punjab Civil Servants Act, 1974 read with rule 8 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. It has already been clarified vide circular letter No, S.R.O.II(S&GAD)2-25/93, dated 15-1-1995 that seniority of a civil servant being a vested right, cannot be relegated to a lower position unless he is superseded and his junior is promoted in preference to him. This means that a civil servant, who is deferred for promotion and is subsequently promoted woula regain his seniority automatically. Therefore, pro forma promotion is not a necessary prerequisite for restoration of original seniority. The appointing authorities should therefore restore seniority in such cases through a speaking order. However, pro forma promotion in such cases is to be granted for the purpose of financial benefits."
10.For the foregoing, this appeal is accepted and the appellant is accorded pro forma promotion w,e,f, 1-4-1997.