SHAHID WAHEED, MEMBER:- This is an appeal of a retired Judicial Officer in which he has impleaded Lahore High Court, Lahore, through its Registrar and 144 other Judicial Officers as respondents.
2. The appellant, Ch. Shabbir Hussain, retired District & Sessions Judge through this appeal under section 5 of The Punjab Subordinate Judiciary Service Tribunal Act, 1991 has prayed that by accepting this appeal the respondent No.1 be directed to award him pro forma promotion to the post of Additional District & Sessions Judge from the date when his immediate junior was promoted against the said post; and, thereafter to grant him pro forma promotion to the rank of District & Sessions Judge with effect from 24th December, 2011, i.e, the date on which the respondent No.2 along with others were promoted as District & Sessions Judge with all consequential back benefits.
3. This appeal has arisen in the background that on 6th July, 1982 the appellant started his career as Civil Judge. He was promoted to the rank of Senior civil Judge vide Notification No.255/RHC/Sr- CJJ dated 25th November, 1997. While posted as Senior Civil Judge, Rajanpur, the appellant was placed under suspension vide Notification No.134/RHC/SCJJ dated 29th April, 1998 in aid of ensuing disciplinary proceedings to be conducted against him under The Punjab Civil Servants (Efficiency & Discipline) Rules, 1975. One of the allegations against the appellant was that he while posted as Civil Judge at Burewala, District Vehari, entertained and decided two civil suits filed by his brothers.
In the said disciplinary proceeding the learned Authorized Officer vide his report dated 15th February, 1999 imposed upon the appellant a minor penalty of stoppage of three annual increments. This punishment took effect with the issuance of Notification No.523/RHC/SCJJ dated 5th October, 2001 and as consequence thereof the appellant was reinstated in service. In the meantime the appellant became eligible to be promoted to the post of Additional District & Sessions Judge and, therefore, his name along with his batch mates was considered by the Provincial Judicial Selection Board in its meeting held on 28th October, 1999. The appellant was ignored due to pendency of above said disciplinary proceedings and, therefore, vide Notification No.393/RHC/SCJJ dated 16th November, 1999 his juniors, that is, respondents No.2 to 28 were promoted as Additional District & Sessions Judge. Therefore, the appellant challenged his punishment i.e. Notification No.523/RHC/SCJJ dated 5th October, 2001 before this Tribunal through Service Appeal No.7 of 2002. During pendency of this appeal the Provincial Judicial Selection Board held its five meetings and in each of these meetings the name of the appellant was not recommended and resultantly his juniors, i.e. respondents No.29 to 32 were promoted vide Notification No.38/RHC/SCJJ dated Ist February,2000; respondents No.33 to 54 were promoted vide Notification No.433/RHC/SCJJ dated 4th October, 2000, respondents No.67 to 104 were promoted vide Notification No.67/RHC/SCJJ dated 13th March, 2001; respondents No.105 to 124 were promoted vide Notification No.202/RHC/SCJJ dated 7th September 2001; and, the respondents No.125 to 145 were promoted vide Notification No.226/RHC/ADJJ dated 10th October, 2001. However, in the year 2002 the Provincial Judicial Selection Board recommended the name of the appellant for promotion and resultantly vide Notification No.59/RHC/SCJJ dated 18th April, 2002 the appellant was promoted to the rank of Additional District & Sessions Judge. After getting promotion to the rank of Additional District & Sessions Judge the appellant on 25th May, 2002 filed a representation under section 21 of The Punjab Civil Servants Act, 1974 for grant of pro forma promotion with effect from the date when his juniors were promoted to the post of Additional District & Sessions Judge.
The said representation was not responded by the respondent No.1 and, therefore, after lapse of statutory period the appellant filed the instant appeal before this Tribunal.
4. At the time of final hearing of this appeal the respondent No.1 placed before us the complete original service record of the appellant. Perusal of record evinces that during the pendency of present appeal: (i) the appellant's earlier Service Appeal No.7 of 2002 was dismissed by this Tribunal vide judgment dated 16th January, 2003. This judgment was challenged before the Hon'ble Supreme Court of Pakistan through CPLA. No.814-L of 2003. This petition was dismissed as withdrawn vide order dated 24th February, 2005 (ii) the representation of the appellant for grant of pro forma promotion to the rank of Additional District & Sessions Judge with effect from the date when his juniors were promoted was rejected vide letter No.977/RHC/SC-I dated 20th July 2005 (iii) the appellant was promoted to the rank of District & Sessions Judge with effect from 31st March 2012; and, (iv) the appellant stood retired on attaining the age of superannuation on 13th September 2014.
5. The appellant argued that after imposing a minor penalty of stoppage of three increments vide report dated 15.2.1999, the leaned Authorized Officer had exhausted his complete jurisdiction in terms of Rule 7-A of The Punjab Civil Servants (Efficiency & Discipline) Rules, 1975 and, therefore, Authority was required to immediately recall the suspension order dated 29th April, 1998 and reinstate him into service but the Authority delayed the matter and reinstated him into service vide Notification dated 5th October, 2001; that by imposing the minor penalty of stoppage of three increments and deferring him for promotion due to delay in recalling the suspension order he was penalized twice for the same alleged misconduct and, thus, it was a case of double jeopardy; that pendency of inquiry or minor penalty was not a hurdle in the way of his promotion and, thus, he was entitled for pro forma promotion from the date his juniors were promoted.
6. On the other hand, learned counsel for respondent No.1 has vehemently opposed this appeal and submitted that seniority was not the sole criterion for promotion; that the Competent Authority scrutinized the service record and reviewed the performance and reputation of the appellant before declaring him unfit for promotion to the post of Additional District & Sessions Judge; that due to imposition of minor penalty which was maintained upto the level of Hon'ble Supreme Court of Pakistan the appellant could not claim pro forma promotion as per Pro forma Promotion Policy.
7. In this case the appellant on 20th March, 2015 pointed out that the respondents No.2 to 145 were arrayed as pro forma respondents; and, that he had been retired on 13th September 2014 and, therefore, in case of acceptance of present appeal seniority of the pro forma respondents either served or un-served would not be affected as he would be only entitled to monetary benefits. In view of above this appeal was ordered to be fixed on 27.3.2015. Today the pro forma respondents are not in attendance and, therefore, they are proceeded against ex-parte.
8. The first question which falls for determination in this appeal is as to whether the promotion of the appellant to the post of Additional District & Sessions Judge was rightly withheld by the Competent Authority. It is well recognized principle 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. In this regard reference may made to the cases of Muhammad Umar Malik and others vs. Federal Service Tribunal and others (PLD 1987 S. C 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: (i) that he was deferred for promotion to the post of Additional District & Sessions Judge firstly, on 16th November, 1999; secondly, on Ist February, 2000, thirdly, on 26th July, 2000; fourthly on 4th September, 2000; fifthly on 13th March 2001; sixthly on 7th September 2001; and, seventhly on 10th October, 2001 due to pendency of disciplinary proceedings which culminated in the imposition of minor penalty of stoppage of three annual increments vide Notification No.523/RHC/SCJJ dated 5th October, 2001; (ii) that he challenged the minor penalty before this Tribunal through Service Appeal No.07 of 2002 which was dismissed vide judgment dated 16th January,2003; (iii) that the said judgment was assailed before the Hon'ble Supreme Court of Pakistan through CPLA No.814/L of 2003 but the same was dismissed as withdrawn vide order dated 24th February,2005. It means that the disciplinary proceedings were the hurdle in the grant of promotion to the appellant. Although there can be no absolute bar to promotion yet as a general principle promotion can only be withheld on reasonable and relevant grounds which may include pendency of disciplinary proceedings or a criminal prosecution against a Judicial Officer. Thus, the promotion of the appellant was rightly withheld due to pendency of disciplinary proceedings until the same were over.
9. The second moot point involved in this case is as to whether the appellant is entitled for pro forma promotion to the post of Additional District & Sessions Judge when his immediate junior was promoted to the said post with all consequential back benefits. This is a case of pro forma promotion of a retired Judicial Officer and according to pro forma promotion policy circulated by the Government of the Punjab , Service and General Administration Department (Regulation Wing) vide Notification No.SOR.II (S&GAD)2-59/78 dated 19th April, 2003 pro forma 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 pro forma promotion during the service and retired. The said policy also contemplates that pro forma promotion is generally granted in a case where an officer whose junior was promoted on regular basis but he was deferred due to the reason that he was under suspension or facing a departmental inquiry provided eventually he was exonerated of the charge.
The grant of pro forma promotion is based on the concept of presumption that except the temporary hurdles such as inquiry or adverse remarks, which prove to be frivolous later on, the officer was fit for promotion on a particular date in the past. Keeping into consideration the case of the appellant vis--vis the above stated pro forma promotion policy, it cannot be said that he was refused pro forma promotion for no fault of his own, but the hurdle in his way was permanent on account of imposition of minor penalty vide Notification No.523/RHC/SCJJ dated 5th October, 2001 and, therefore, his claim for pro forma promotion was not justified. In this regard fortification may be had from the case of Ch. Muhamamd Saleem v Government of the Punjab through Chief Secretary, SGA&I Department, Lahore and 5 others (1994 SCM R 517). In this case the petitioner joined the Forest Service as a Forest Ranger (BS-11) on 5.10.1962. This post was upgraded to BS-16 by the Government with effect from 1.5.1977. When the question of adjustment of the petitioner in the higher grade came up for consideration it was found that six disciplinary cases were pending against him. His promotion/upgradation, therefore, was deferred. These departmental cases terminated subsequently and the petitioner was awarded the penalty of censure, stoppage of annual increment without future effect and recoveries of small amounts of Rs.30.40 and Rs.115. After inquires the case for promotion was submitted before the competent authority but the same was declined. The order of the competent authority was upheld by the Hon'ble Supreme Court with the following observations: " Pro forma promotion is made only when a civil servant has been wrongly deprived of the promotion post. In the case in hand no departmental inquiries all ended against the petitioner and he was also punished in one of them. There is therefore, no question of wrongful deprivation."
10. As regards the prayer for grant of pro forma promotion to the appellant for the post of District & Sessions Judge from the date when his juniors were promoted, it is suffice to say that to this effect the appellant had not filed any departmental appeal or representation during his service and, thus, this prayer cannot be allowed by virtue of Para-V of the Pro forma Promotion Policy dated 19th April, 2003 which reads as under: "However, keeping in view the hardship caused to the retired civil servant it has been decided that in case where a civil servant was wrongfully prevented from promotion (para41(a) refers) and subsequently promoted during his service, but could not get pro forma promotion during his service and retired, such office may be considered for pro forma promotion, provided he files a representation to this effect during his service. The representation filed after retirement shall not be considered."
11. Now, we advert to the plea of double jeopardy. The appellant argued that although the disciplinary proceedings under Rule 7-A of the Punjab Civil Servants (Efficiency & Discipline) Rules, 1975 stood terminated with effect from the imposition of minor penalty of stoppage of three annual increments by the Authorized Officer vide report dated 15th February, 1999 yet the suspension order i.e. Notification No.134/RHC/SCJJ dated 29th April, 1998 unnecessarily remained in force till the issuance of Notification No.523/RHC/SCJJ dated 5th October, 2001 and due to this reason he was not promoted to the post of Additional District & Sessions Judge along with his batch mates on 16th November, 1999; and, by virtue of imposition of minor penalty of stoppage of three annual increments by the Authorized Officer and by withholding promotion due to pendency of disciplinary proceedings or suspension order he was penalized twice for the same alleged fault. He argued with vehemence that this is a case of double jeopardy. We are not persuaded to accept this contention. In the present case the Authorized officer in exercise of his power under Rule 7 A of The Punjab Civil Servants (Efficiency & Discipline) Rules, 1975 imposed upon the appellant a minor penalty of stoppage of three annual increments vide his report dated 15th February, 1999 and forwarded the record to the Authority under Rule 8 ibid for order. The Authority after evaluating the record decided to agree with the learned Authorized Officer and resultantly vide Notification No.523/RHC/SCJJ dated 5th October, 2001 a minor penalty of stoppage of three annual increments was imposed upon the appellant and he was reinstated in service with immediate effect. When a judicial officer is found guilty in the discharge of his duties, an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the administration.
A judicial officer cannot be rewarded by promotion as a matter of course even if penalty is minor in nature. A judicial officer has no vested right to promotion. He has only a right to be considered for promotion. In the case on hands the appellant was considered for promotion along with his batch mates to the post of Additional District & Sessions Judge but he was deferred due to pendency of disciplinary proceedings. To qualify for promotion, the least that is expected of a judicial officer is to have an unblemished record. This is a minimum requirement to ensure a clean and efficient judicial administration and to protect the public interest. A judicial officer found guilty of misconduct cannot be placed at par with the other judicial officers and his case has to be treated differently. It is expected from the Authority that it would not reward a judicial officer with promotion retrospectively from a date when for his conduct before that date he was penalized.
When a judicial officer is held guilty and penalized and is, therefore, not promoted at least till the date on which he is penalized, he cannot be said to have been subjected to further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering the judicial officer for promotion, his whole record has to be taken into consideration and if the Provincial Judicial Selection Board takes the penalties imposed upon the judicial officer into consideration and denies him the promotion, such denial is neither illegal nor unjustified.
13. This appeal sans merit and is accordingly dismissed.