MUHAMMAD HASHIM KHAN KAKAR, (CHAIRMAN).--- This appeal under section 4 of the Balochistan Service Tribunals Act 1974 has been preferred by the appellant against order dated 30-9-2006 whereby the promotion case of appellant in spite of recommendation of DPC was ignored.
2. The relevant facts in small compass are that the appellant joined Balochistan Police Service as Constable in the year 1977. He was promoted to the rank of A.S.-I. On 1-1-1999 and thereafter, to the rank of Sub-Inspector. In the year 2006 a summary of senior most Sub-Inspectors along with their service Rolls and Cr dossiers was moved to fill up 31 posts of Inspectors. The Departmental Promotion Committee, after determination of eligibility and fitness of individuals to hold the higher post of Inspector recommended certain Sub-Inspectors including appellant and forwarded the list of Sub-Inspectors, so recommended for promotion to the Provincial Police Officer (hereinafter referred to as PPO) on 20-5-2006 who issued the impugned Notification No,27007- 61/13 (91)A dated 30-9-2006, perusal whereof revealed that, in derogation of DPC's recommendation, name of appellant was ignored and private respondents, junior to appellant, were promoted.
3. Being aggrieved of the impugned Notification dated 30-9-2006, appellant made departmental representation on 10-10-2006, which was neither rejected nor accepted. However a letter dated 27- 12-2006, which was communicated to him wherein some reasons were assigned for deferment of his promotion case. Lastly while finding no other way out, appellant approached this Tribunal by filing the instant appeal.
4. On the other hand the respondents contested the appeal on legal and factual aspects by filing their written replies.
5. We have considered the contentions raised by the counsel for the parties and also perused the record.
6. The learned Advocate-General Balochistan Mr. Salahuddin Mengal contended that the appeal is time-barred. On the other hand the appellant has moved an application under section 5 of the Limitation Act 1908 (IX of 1908) for condonation of delay. Admittedly the appeal has not been filed within the statutory period but the reasons for condonation of delay are not only convincing but were beyond the control of appellant as his counsel namely Choudry Muhammad Rafique sustained injuries in a bomb blast as such, the delay is condoned.
7. It is admitted feature of the case that the appellant was enrolled as Constable on 9-5-1977 and was promoted to the rank of A.S.-I. On 1-1-1999 and thereafter, to the rank of S.-I. On 10-9-2001. His case for promotion as Inspector was referred and placed before the Departmental Promotion Committee along with some other S.-Is. The Departmental Promotion Committee (hereinafter referred to as DPC) after determination of eligibility and fitness of individuals to hold the higher post of Inspector Recommended certain Sub-Inspectors including appellant and the list of Sub Inspectors so recommended for promotion to the PPO was forwarded. Who declined to promote appellant on the basis of his alleged involvement in financial corruption and earning of adverse ACRs,
8. In view of section 403, Cr.P.C., section 26 General Clauses Act, 1897 and Article 13 of the Constitution of Islamic Republic of Pakistan 1973, no one can be punished twice for one and the same offence. The appellant was proceeded against departmentally on the allegation that while posted as Incharge OSI, BRP, Quetta. He allegedly concealed the absence of 97 deserter officials in connivance with subordinate staff by not reporting the same to high-ups for necessary action and after formal inquiry penalty of forfeiture of 2 years approved service was imposed upon him vide Order No,4527-34 dated 23-4-2005. As such second time again the promotion case of appellant was deferred on the same allegation which amounts double jeopardy.
9. The record also reveals that the letter dated 20-12-2006 communicated to the appellant also purports that the promotion case of appellant was deferred on account of earning adverse ACRs and alleged involvement in financial corruption, not spelt out from the record as nothing has been placed on record in support of said allegation.
10. It is settled principle of law that the adverse remarks are not communicated or if communicated, there was no record of their having been communicated and acknowledged by the concern officer, such adverse remarks should be ignored and could not been taken into consideration for the purpose of promotion under the instruction about Annual Confidential Reports 1986 issued and published by S&GAD Government of Balochistan. In this respect reliance can be placed on PLC 2005 (C.S.) 132, PLD 1987 SC 271, besides the above legal position the authority is also bound to communicate adverse remarks if any to the concerned officer.
11. So far previous punishment/penalty of forfeiture of 2 years approved service is concerned it would be relevant to produce hereinbelow section 4 of the Police Disciplinary Rules 1975:--- "Punishments.
' The following are the minor, major and more punishments, namely:
(a) Minor punishments:
(i) Confinement of constables and Headconstables for 15 days to Quarter Guards;
(ii) Censure;.
(iii) Forfeiture of approved service upto 2 years;
(iv) Withholding of promotion up to one year;
(v) Stoppage of increment for a period not exceeding 3 years with or without cumulative effect;
(v) Fine up to Rs,1000.
(b) Major Punishments:
(i) Reduction in rank/pay;
(ii) Compulsory retirement;
(iii) Removal from service; and
(iv) Dismissal from service.
12. It is manifest from above provision that forfeiture of 2 years approved service is a minor penalty and it has been held time and again that minor penalty awarded to a civil servant should not be considered as any hindrance in grant of promotion. Minor penalty could not be considered as a disqualifying factor. The appellant in matter of C promotion has not been dealt in accordance with rules and in just and fair manner. Inaction of the PPO not to issue a promotion order, thereafter supersession of appellant was without lawful authority reliance can be placed on 1991 SCMR 1637, 2002 PLC (C.S.) 1375, PLC 2003 (C.S.) 1425.
13. We are conscious of the fact that the Departmental Promotion Committee is only a recommendatory body but its recommendation has a peculiar role to play for the selection process as it is specifically provided under Article 165 Police Order, 2002 that promotion of Police Officers of the Provincial Police shall be made on the recommendations of the departmental promotion committees/promotion boards. This provision of law is mandatory in nature, as such; the authority cannot ignore the same while dealing with the promotion of civil servants. The authority can only ignore the same on the basis of strong reasons and those reasons should be such that the action based on them should become sustainable which are lacking in the case of appellant.
14. In view of the above discussion, the respondent No,1 is directed to reconsider the case of appellant's promotion to the rank of Inspector in view of the recommendation made by the Departmental Promotion Committee from the date his juniors were promoted.
15. No order as to costs.