SHAHID WAHEED, MEMBER:- Challenge in this appeal is to letter No.276/RHC/C-1 dated 10.6.2013 whereby representation of the appellant for grant of proforma promotion as District & Sessions Judge was declined.
2. The appellant, Altaf Hussian Altaf, retired District & Sessions Judge, through this appeal under section 5 of The Punjab Subordinate Judiciary Service Tribunal Act, 1991 has prayed that by setting aside letter No.276/RHC/C-1 dated 10.06.2013 this appeal be accepted and the respondent No.1 be directed to award him proforma promotion to the post of District & Sessions Judge from the date when his immediate junior was promoted against the said post with all consequential back benefits.
3. This appeal has arisen in the background that in the year 1983 the appellant was appointed as Civil Judge. He was promoted to the rank of Senior Civil Judge in the year 1997; and, was further promoted to the post of Additional District & Sessions Judge in the year 1999. The appellant became eligible to be promoted to the post of District & Sessions Judge in the year 2007 but the Provincial Judicial Selection Board did not recommend him for promotion to the said post and resultantly vide Notification No.317/RHC/AD&SJJ dated 14.12.2007 the juniors to him, i.e, respondents No.2 to 7 were promoted. In the next meeting of the Provincial Judicial Selection Board the name of the appellant was again not recommended and his juniors, i.e, respondents No.8 to 31 were promoted to the post of District & Sessions Judge vide Notification No.110/RHC/AD&SJJ dated 04.05.2009. Feeling anguished, the appellant on 22.5.2009 filed a petition before the respondent No.1 with a request for promotion to the rank of District & Sessions Judge with effect from the date when his juniors were promoted. This request was declined vide letter No.887/RHC/C-1 dated 20.06.2009. The appellant assailed the said letter before this Tribunal through Service Appeal. No.04 of 2009. During pendency of the said appeal the appellant was promoted to the post of District & Sessions Judge with effect from 16.09.2010. After assuming the charge of the post of District & Sessions Judge the appellant again on 27.10.2010 filed a petition before the respondent No.1 for grant of proforma promotion to the rank of District & Sessions Judge with effect from when his juniors were promoted. This request was declined vide letter No.276/RHC/C-1 dated 10.06.2013.
Hence, this appeal.
4. Before proceedings further it is germane to state here that during pendency of this appeal the appellant stood retired on attaining the age of superannuation on 02.05.2014.
5. The question which falls for determination in this appeal is as to whether the appellant is entitled for proforma promotion to the post of District & Sessions Judge when his immediate junior was promoted to the said post with all consequential back benefits. Learned counsel for the appellant has contended that the appellant had more than 25 years unblemished service at his credit; and, that while considering the case of the appellant, his previous record including the performance evaluation reports and the achievements appreciated by his superiors were ignored. Conversely, the learned counsel for respondent No.1 has opposed the afore stated arguments and submitted that the Competent Authority scrutinized the service record and reviewed the performance and reputation of the appellant before declining his request for proforma promotion; and, that the adverse remarks made against him by the Hon'ble Lahore High Court in Criminal Appeal No.283-J of 2004 titled "Abdul Ghafoor v The State" was the basis for rejecting the representation of the appellant for grant of proforma promotion. Apropos of above arguments we have examined the record and it evinces that the appellant while working as Additional District & Sessions Judge at Lahore passed a judgment dated 26.04.2004 in a criminal case, i.e., F.I.R. dated 11.7.2001 recorded on the complaint of one Shehzad Saleem at Police Station Nishtar Colony, Lahore. One of the accused of said case namely Abdul Ghaffar challenged the appellant's judgment dated 26.04.2004 through Criminal Appeal No.283-J of 2004(titled Abdul Ghaffar v. The State) before the Hon'ble Lahore High Court, Lahore. This appeal was accepted vide judgment dated 29.03.2007 with the following adverse remarks against the appellant: "Before parting from this judgment, I am constrained to observe about the judicial approach of Mian Altaf Hussain Mahar, the then Addl. Sessions Judge, Lahore in this case and the Registrar is directed to place the matter before the competent authority, which may consider to proceed against the said Judicial Officer on the administrative side and that whether he would remain in the judicial service to play with the lives and liberty of the innocent citizens."
It is an admitted fact that the appellant was deferred for promotion to the post of District & Sessions Judge: firstly, in the year 2007; and, secondly, in the year 2009 on the basis of afore cited adverse remarks recorded against him. It is also conceded before us that the said adverse remarks still exist on record as no court of competent jurisdiction had expunged them. The effect of the said adverse remarks for grant of proforma promotion came up for consideration before this Tribunal in the appellant's earlier appeal, that is, S.A. No.04 of 2009 which was dismissed vide judgment dated 27.2.2015 wherein it was held as follows: We have given anxious thought to the arguments advanced by the learned counsel for the parties.
It is settled principle of law that promotion is neither a vested right nor it can be claimed with retrospective effect. Whenever there is a change of grade or post for the better there is an element of selection involved which is considered for promotion and it is not earned automatically but under an order of the Competent Authority to be passed after consideration of comparative suitability and the entitlement of those incumbents [See Muhammad Umar Malik and others vs. Federal Service Tribunal and others (PLD 1987 SC 172), Government of the Punjab through Secretary Services, Punjab, Lahore and 4 others vs. Muhammad Awais Shahid and 4 others(1991 SCM R 696) and Abid Hussain Sherazi vs. Secretary M/O Industries and Production, Government of Pakistan, Islamabad (2005 SCM R 1742). The appellant has conceded before us that he was deferred for promotion to the post of District & Sessions Judge: firstly, in the year 2007; and, secondly, in the year 2009 on the basis of adverse remarks recorded in the judgment dated 29th March, 2007 passed by the Hon'ble Lahore High Court, Lahore. It means that the said remarks were the hurdle in the grant of promotion to the appellant. This is a case of proforma promotion of a retired judicial officer and according to proforma promotion policy circulated by the Government of the Punjab, Services and General Administration Department (Regulation Wing) vide Notification No. SOR-II (S& GAD)2- 59/78 dated 19th April, 2007 proforma promotion of a retired officer means a case where a senior officer was deferred for promotion due to no fault of his own and his junior was promoted and subsequently the senior was also promoted during his service, but could not get proforma promotion during the service and retired. Keeping into consideration the case of the appellant vis- -vis the above stated proforma promotion policy, it cannot be said that he was refused proforma promotion for no fault of his own, but the hurdle in his way was permanent on account of adverse remarks recorded in the judgment dated 29th March, 2007 in Criminal Appeal No. 283-J of 2004 by the Hon'ble Lahore High Court, Lahore which are still on the record and to which the appellant did not take any exception by not representing his case to the court of competent jurisdiction or any other Competent Authority. In these attending circumstances, the appellant was rightly deferred for promotion due to fault of his own and thus he could not claim proforma promotion.
The above cited extract of the judgment passed by this Tribunal unfolds that the matter directly and substantially in issue in the present appeal is the same matter which was directly and substantially in issue in the appellant's earlier appeal before this Tribunal, that is, S.A. No.04 of 2009.
Thus, judgment dated 27.02.2015 passed by this Tribunal in the appellant's earlier Service Appeal.
No.04 of 2009 is fully applicable to the instant case and in view thereof we are clear in our mind that the appellant was rightly deferred for promotion due to fault of his own and, thus, he, as per proforma promotion policy circulated by the Government of the Punjab, Services and General Administration Department (Regulation Wing) vide Notification No. SOR-II (S&GAD) 2-59/78 dated 19.4.2007 could not claim proforma promotion. Resultantly, the impugned letter No.276/RHC/C-I dated 10.06.2013 warrants no interference by this Tribunal.
6. There is yet another aspect of the matter which is worth consideration. The Provincial Judicial Selection Board in its meeting held in the year 2007 did not recommend the name of the appellant for promotion to the post of District & Sessions Judge and vide Notification No.317/RHC/AD &SJJ dated 14.12.2007 the juniors to the appellant were promoted. The appellant remained contented with the said Notification and did not raise any claim for promotion. Subsequently, the Provincial Judicial Selection Board again did not recommend the name of the appellant for promotion and the juniors were promoted to the post of District and Sessions Judge vide Notification No.110/RHC/AD& SJJ dated 4.5.2009. This subsequent notification gave a fillip to the appellant to file a representation before respondent No.1 for promotion to the rank of District & Sessions Judge with effect from the date when his juniors were promoted. The appellant's representation could not evoke a favourable response and it was declined vide letter No.887/RHC/C-I dated 20.6.2009. The appellant assailed the said letter dated 20.6.20009 before this Tribunal through appeal (i.e. S.A.
No.04 of 2009). During pendency of this appeal, the appellant was promoted to the post of District & Sessions Judge with effect from 16.9.2010. After getting promotion, the appellant on 27.10.2010 filed a second petition before respondent No.1 for grant of proforma promotion to the rank of District & Sessions Judge with effect from when his juniors were promoted vide Notification No.317/RHC/AD&SJJ dated 14.12.2007. This second representation, under relevant law, was not competent. However, it was declined by the Competent Authority vide letter No.276/RHC/C-I dated 10.6.2013. The disposal of incompetent petition or representation by the Competent Authority did not create fresh cause of action and, therefore, the present appeal before this Tribunal would not be competent.
7. In view of above, this appeal fails and is accordingly dismissed.