' MUHAMMAD FARRUKH IRFAN KHAN, CHAIRMAN/J.--- Through this appeal under section 5 of the Punjab Subordinate Judiciary Service Tribunal Act, 1991 the petitioner has assailed the order dated 10-6-2013 whereby his representation for grant of pro forma promotion as Additional District and Sessions Judge has been declined by the respondent-Department.
2. Brief facts of the case as stated in the instant appeal are that the appellant joined judicial service as a civil judge in January, 1988. He was granted move over from B.S.17 to B.S.18 w.e.f. 1-12- 2000. He was given pro forma promotion as Senior Civil Judge w.e.f. 3-4-2001, vide notification dated 14-10-2005. He earned adverse remarks in his ACR for the year 1993 against which he filed representation for expunction of adverse remarks, which was accepted, vide letter No.1054/RHC, dated 30-7-2002. Again the countersigning officer recorded adverse remarks against the appellant in the ACRs for the period from 7-1-2006 to 31-12-2006, 1-1-2007 to 27-4-2007 and 7-5- 2007 to 3-12-2007. The appellant filed representations, which were accepted and the adverse remarks were treated as advisory, vide letter No.674 dated 22-5-2007, letter No.471 dated 26-5- 2010 and letter No.472 dated 26-5-2010. He was promoted as Additional District. Judge on 19-12- 2005. He made representation claiming his pro forma promotions w.e.f. 18-4-2002 the date when officers junior to him were promoted as Additional District Judge but the same was declined, vide impugned letter No.279 dated 10-6-2013. Hence, the instant appeal.
3. Learned counsel for the appellant submits that the impugned order lacks reasons for declining the representation of the appellant, therefore, it is unlawful, unwarranted and merits to be set- aside; that the appellant's representations were decided with a delay of seven years without any fault on his part as such he is entitled to pro forma promotion; that at the time of passing the impugned order and issuance of the impugned notification there did not exist any ACR containing adverse remarks against the appellant; and that the appellant is entitled to pro forma promotion from the date when his juniors were promoted.
4. Conversely, learned counsel for the respondent-Department contended that this appeal is hopelessly barred by limitation. In this regard he submitted that the appellant was promoted as Additional. District and Sessions Judge on 19-12-2005 and he filed representation on 7-9-2006, which was barred by limitation. Relies on the case of Muhammad Yaqoob v. District Police Officer, District Sahiwal and 2 others (2006 SCM R 310) to contend that the appellant had sixty days to wait for the decision of his representation and after expiry of sixty days he could file appeal within next 30 days whereas the present appeal was filed after a delay of more than seven years. He further contended that most of the career of the appellant as judicial officer remained under clouds as he consistently earned adverse ACRs, though they were expunged later on; and that the appellant is not entitled to any pro forma promotion.
5. Arguments heard. Record perused.
6. Before dilating upon the merits of this case we would first like to deal with the objection raised by the learned counsel for the respondent-department qua maintainability of this appeal, on the ground of limitation. As per record the appellant filed representation for grant of pro forma promotion as Additional District and Sessions Judge on 7-9-2006, which was declined by the Administration Committee of the Lahore High Court on 10-6-2013. He was conveyed the decision of the Administration Committee on 11-6-2013. He filed the instant appeal on 5-7-2013, within 30 days from the date of decision of his representation. We see no force in the argument of the learned counsel for the respondent that the appellant should have filed the appeal within 90 days of filing his representation. In the case of Chief Engineer (North) and another v. Saifullah Khan Khalid (1995 SCM R 776) the august Supreme Court of. Pakistan held that the civil servant had the choice either to file appeal immediately on the expiry of 90 days from the date of filing of Departmental Appeal or he could have waited for the decision of same and file appeal within 30 days thereof. It was further held that the civil servant's option for the latter was in consonance with legal requirement.
In the present case, the appellant waited for decision of his representation for seven years and when his representation was declined A he filed the instant appeal within 30 days. As such the appellant's appeal is within time. The case-law cited by the learned counsel for the respondent is distinguishable from the present case as the appellant in the case of Muhammad Yaqoob v.
District Police Officer (supra) instead of filing appeal before the Service Tribunal had filed revision against the decision of the departmental authorities, which was rejected. In the said case the appellant had not invoked the remedy of appeal within the stipulated period whereas in the present case the appellant filed appeal within the period provided by the law. In this view of the matter, we find that objection of the learned counsel for the respondent qua B maintainability of this appeal is devoid of any force and as such the same is overruled.
7. Now coming to the merits of the case, we have observed that the appellant earned adverse remarks in his three ACRs for the period from 7-1-2006 to 31-12-2006, 1-1-2007 to 27-4-2007 and 7- 5-2007 to 3-11-2007 but on his representation the same were treated as advisory in nature. The record shows that representation of the appellant for pro forma promotion was rejected on the ground that his performance was found "below average". Admittedly, the appellant was not recommended for promotion on the ground that he had earned adverse ACRs for the period from 1-1-2007 to 27-4-2007 and 7-5-2007 to 3-11-2007 but the same having been treated as advisory in nature nothing remains adverse against him barring his promotion as Additional District and Sessions Judge. The record reveals that his case was considered for promotion by the Administration Committee on 30-4-2009 but was deferred till the pendency of his representation against adverse remarks for the period mentioned above. The appellant was promoted as Additional District and Sessions Judge on 19-12-2005 while another judicial officer, namely, Zulfiqar Khan Nasir, who was junior to him was promoted as such on 6-5-2002. In view of the fact that adverse remarks were expunged and treated to be as advisory in nature the appellant cannot be deprived of his right of promotion from the date when he became eligible for the same. Rejection of his representation for pro forma promotion was thus not justified.
8. In view of above discussion, we accept this appeal and direct the respondents to grant pro forma promotion to the appellant as Additional District and Sessions Judge from the date when his immediate junior was promoted with all consequential back benefits.