JUSTICE (R.) MUHAMMAD JAHANGIR ARSHAD, CHAIRMAN. - The appellant who is doctor by profession joined Health Department, Government of the Punjab as Medical Officer in BS-17 with effect from 17.2.1987 on the recommendations of the Punjab Public Service Commission. In the seniority list of Medical Officers in BS-17 drawn in the year 2C)06, the appellant was placed at Serial No. 1047 whereas private respondent No. 3 i.e. Dr. Athar Hashmat was placed at Serial No. 2800. Despite the fact that private respondent No. 3 was far junior to the appellant, he was promoted in BS-18 as Senior Medical Officer with effect from 11.9.2001 through Notification SO(B.IV)Misc/4-1/2001. The appellant feeling aggrieved of the promotion of private respondent filed appeal before the Secretary Health, Government of the Punjab praying for his promotion in BS- 18 but the same was turned down on 11.1.2008 by the Director General, Health Services, Punjab, Lahore being the departmental appellate authority on the ground of nonavailability of his Annual Confidential Reports for the years 1998 to 2002. Hence this appeal.
2. It is submitted by the learned counsel for the appellant that the appellant had deposited all his Annual Confidential Reports before the competent authority and in case the same was not available on the record, it was not the fault on the part of the appellant. Further submission is that it was not possible for the appellant at this stage to have the afore-said A.C.Rs, completed and that the case of the appellant could be finalized on the basis of earlier A.C.Rs, which were complete and upto the mark. He has further argued that non-availability nor non-completion of A.C.Rs, could be attributed to any fault of the appellant and that he could not be deprived of his due promotion if the Department could not carry out fairly its exercise within a reasonable time, In this respect reliance has been placed on the case reported as 1997 PLC (CS)
77. Further argument is that it is an established principle of law that a civil servant cannot be held liable to suffer merely due to conscious or unconscious procedure lapses attributed to the competent authority as held by the Hon'ble Supreme Court of Pakistan, in the case reported as NLR 1996 Service 120. It has also been argued that time and again the apex Court has held that no one could be penalized for the act of public functionary, In this respect reliance has been placed on the case of Najam Abbas md others v. Superintendent of Police City Division, Gujranwala and others, reported as 2006 SCIVIR 496. Lastly he has argued that this Tribunal while deciding Service Appeal No. 2182/2003 on 11.2.2004 (Ahsan- ud-Din v. Secretary Education, Punjab, etc.) and Service Appeal No. 2140/2003 on 11.2.2004 (Syed Akbar Ali Gillani v. Secretary Education, Punjab, etc.) held in express terms that if the service record of the civil servant was not complete or his A.C.Rs, were not written, he could not be held responsible for that lapse of the public functionary and on this score the competent authority could not defer or ignore the case of .The civil servant for promotion who is otherwise eligible for promotion, It was further held by this Tribunal in the above- referred judgments that if the service record of the servant was not completed for any reason, it was the responsibility of the concerned authority to ensure completion Of the record and the civil servant could not be deferred or ignored for promotion on the basis of non-completion of his service record.
3. So far as the claim of private respondent No. 3 namely Dr. Athar Hashmat is concerned, the said respondent has himself filed written reply in the Tribunal on 10.6.2008 stating therein that he had no objection if the appellant is promoted to BS-18. However, the leamed Deputy District Attorney has opposed this appeal on the ground that without the availability of A.C.Rs., the case of appellant for promotion could not be considered in the meeting of Departmental Promotion Committee and that the impugned order dated 11.1.2008 directing the appellant to provide his complete A.C.Rs, for the years 1&98 to 2002 was lawfully passed and this Tribunal in the absence of the relevant record of the appellant could not take cognizance of the matter, especially when no adverse order has been passed against the appellant either by the competent authority or by the appellate authority.
4. I have carefully considered the arguments advanced from both sides and have also gone through the record.
5. In the seniority list drawn in the year 2006, the name of the appellant figures at Serial No. 1047 whereas the name of respondent No. 3 is mentioned at Serial No. 2800 and he was thus junior to the appellant. But he was allowed promotion to BS-18 through the Notification dated 11.9.2001 but the appellant was deprived of his lawful right of promotion. The reason for ignoring appellant as stated above was non-availability of the afore-said Annual Confidential Reports. The question requiring determination is as to whether non-availability of the aforesaid A.C.Rs, is attributable to any act or lapse on the part of the appellant or the same was an act of omission/commission by the Health Department, In the order dated 11.1.2008, the Director General, Health Service, Punjab, Lahore merely stated that on scrutiny of record it had been found that the afore-said A.C Rs. Were not available in the C.R. Dossier of the appellant and that in the absence. Of such A.C.Rs., the Directorate was not in a position to prepare the case of the appellant for regular promotion in BS-
18. One is astonished by the language of the said order which Is silent on the fact as to why the office of the competent authority did not bother to complete the record of the appellant and kept the record incomplete without the A.C.Rs, for the years from 1998 to 2002 I am in full agreement with the learned counsel for the appellant that completion of service record of a civil servant, especially Annual Confidential Reports is the exclusive function of the Department concerned and on its failure to maintain the record update, the civil servant cannot be punished nor can he be ignored- on his turn for due promotion to the next grade. Although it is correct that no civil servant can claim promotion as of right, yet it. Is a recognized principle that a civil servant has inalienable right to be. Considered for promotion with his batch-mates if he fulfils the eligibility criteria and consideration for promotion means just and fair consideration and not as a matter of right.
Reliance is placed on the case reported as 2009 PLC (CS)
40. It is also established principle of law that neither a person can suffer for an act of public functionary nor a civil servant can be denied promotion on account of fault of the Department as held by the Hon'ble Supreme Court of Pakistan in the case reported a~ 1997 SCMR 515 and 2006 SCMR 496. Further this Tribunal in the above- noted judgments also laid down the law about promotion of civil servants by declaring that a civil servant can neither be held responsible nor his promotion can be withheld on the ground of non- completion of record or A.C.Rs, as it was the responsibility of the concerned Authority to ensure completion and maintenance of service record update, In the light of the law declared by the hon'be apex Court and this Tribunal in the noted judgments, have no hesitation in holding that if the A.C.Rs, of the appellant for some period were' not available on the record, the same was the responsibility of the Department to have asked the appellant for making the relevant Annual Confidential Reports although under no provision of law the civil servant can be burdened with such duty, It has also been observed with displeasure that the appellant is being ignored even from consideration for promotion without any fault on his. Part whereas private respondent No. 3 though being junior to him was promoted in the higher grade in the year 2001. This act of the departmental authority cannot be approved with any egat justification, rather the same amounts to extending discnminatory attitude to the appellant against the provision or Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 which ordains that all citizens are equal before law and are entitled to equal protection of law. In case the Annual Confidential Reports of the appellant are not available on the record, the competent authority could prepare his case for promotion on the basis of the earlier and subsequent A.C.Rs, and if the same were found satisfactory or upto the mark, his.
Case could have been placed for consideration but keeping the case of the appellant outside the sight of D.P.C, is highly unfair on the part. Of departmental authorities.
6. Resultantly this appeal is allowed and the departmental competent authority is directed to immediately prepare the case of the appellant for promotion on the basis of earlier and subsequent Annual Confidential Reports of the appellant and submit the same for consideration before the D.P.'C. Who shall ensure that in case the appellant is found fit for promotion to BS-18, the appellant shall also be promoted from his due date The competent authority is directed to complete the exercise within two months of the receipt of this order by placing the matter before the meeting of the Departmental Promotion Committee which may be held after two months of the receipt of this order.