Mdazzam Hayat, Member.--Appellant Mujahid Shah is Deputy Assistant Director in the service of respondents. He is aggrieved by order dated 26.10.2010 by which Respondents No, 3 to 5 were promoted from BS-16 to BS-17 as Military Estate Officers/Assistant Directors General. His departmental appeal dated 22.11.2010 was not responded. The present appeal was filed on 31.03.2011.
2. When the appellant had filed his appeal the name of respondent Abdul Ghaffar was not included in the panel of respondents. The appeal was returned by the office for removal of some deficiencies. On its resubmission the name of Abdul Ghaffar was added without permission.
However, today his name has been deleted on the statement of the learned counsel for the appellant that the appellant has no grievance against him since he is admittedly senior to him.
3. The appeal is resisted by the respondents. It is stated that the appellant had been superseded as he was not found fit for promotion in his PER for the year 2008.
4. We have heard the learned counsel for the parties and have also perused the record.
5. Against the impugned order dated 26.10.2010 the appellant had filed departmental appeal on 22.11.2010. He was required to wait for the result of that appeal for 90 days and then to file appeal in the Tribunal within the next 30 days. From calculation we find that the appeal filed on 31.03.2011 was time barred by 9 days if the period of limitation is reckoned from the date of filing departmental appeal i,e, 22.10.2010. It is submitted by the learned counsel for the appellant on 04.11.2010 the appellant had submitted an application that he be informed of the reasons for his non-promotion.
According to his learned counsel he was informed about his supersession vide order dated 29.11.2010. It is requested by the appellant that period of limitation be counted from 29.1.2010. The request is not legal. The period of limitation has to be counted from the date of filing of departmental appeal but even if the period of limitation is counted from 29.11.2010 the appeal shall still be time barred by two days. The appellant has not filed any application for condonation of delay.
6. In the above mentioned circumstances, we would have dismissed the appeal as time barred but today a copy of Letter No, 106/P/PS/ML&C dated 16.04.2011 has been produced before us wherein it is stated that the adverse remarks recorded in the ACR of the appellant for the year 2008 have been expunged. It means that the record of the appellant was clean. There was thus no reason to supersede him.
7. According to Respondents No, 3 to 5 the appellant was earlier superseded when promotions were being made from BS-11 to BS-16. This objection is not relevant in the present case since the appellant was ultimately promoted to BS-16.
8. The learned counsel for the Respondents No, 3 to 5 has further argued that under Section 4(2)(b) of the Service Tribunals Act, the appeal shall not lie to determine the fitness of a civil servant for promotion. Admittedly promotion is not a right. To get promotion a civil servant can definitely not file an appeal but he has a right to file appeal for consideration for promotion. To be considered for promotion is a vested right. Whenever a civil servant is superseded he can file an appeal on the ground that he was not given proper consideration. The appellant is, therefore, competent to file the present appeal to submit that he was not considered meaningfully for promotion by the Departmental Promotion Committee.
9. As observed above the record of the appellant was clean since the adverse remarks recorded in his ACR for the year 2008 had been expunged. The adverse remarks in his ACR for the year 2009 had already been expunged by the Tribunal vide its judgment dated 14.02.2011 passed in Appeal No, 1526(R)CS/2010. In the circumstances, there was no reason to supersede the appellant. We accordingly hold that the appellant was not given meaningful consideration for promotion. His supersession is, therefore, converted into his deferment. The respondents shall consider him for promotion from the date his juniors were promoted. The process shall be expedited within a period of two months from the date a copy of judgment is received in the office of respondents.
10.There shall be no order as to costs. Parties shall be informed.