' MUHAMMAD SAJID MEHMOOD SETHI, J. --- Brief facts for disposal of this writ petition are that petitioner is a Food Grains Inspector in the office of the District Food Controller, Sahiwal. He joined the Food Department as Food Grains Supervisor. He was then promoted as Food Grains Inspector on the basis of seniority-cum-fitness basis on 31.10.2013, wherein the name of the petitioner was placed before the Departmental Promotion Committee in the meeting held on 08.08.2014 for consideration as Assistant Food Controller, but the Departmental Promotion Committee after considering his case superseded him for promotion. Since the petitioner was not formally informed about the grounds of his supersession by the Respondent No, 1, he filed number of applications before the Respondents as well as before the Secretary to Government of the Punjab, Food Department, Lahore for communication of the reasons under which he was not considered suitable for promotion as Assistant Food Controller. In response to his applications, respondent No, 1 vide his letter dated 03.12.2014 informed the petitioner that the Departmental Promotion Committee did not deem him fit for promotion on the grounds that a reference for misappropriation of wheat stock and stock articles amounting to Rs, 2,074,850/- is pending and second that his Annual Confidential Reports ("ACRs") were incomplete. He has assailed the said supersession with the following prayer:- ' In view of the foregoing, it is therefore, humbly prayed that action so taken by the Respondent No, 1 and the supersession so made by the Departmental Promotion Committee in the case of the petitioner may kindly be set aside by declaring the same as illegal and the Respondent No, 1 may kindly be direction to promote the petitioner as Assistant Food Control by placing the case of the petitioner before the Departmental Promotion Committee for his fresh consideration from the date his case was superseded for promotion in the interest of justice and equity under the law."
2. Learned counsel for the petitioner argued that ground of pending reference has mala fidely been taken for supersession of the petitioner because the said case of Rs, 2,074,850/- has already been decided by the Punjab Service Tribunal in favour of the petitioner vide judgment dated 12.05.2003 in Appeal No, 488/2003. The department filed C.P. No, 2053-L of 2003 against the judgment before the Hon'ble Supreme Court of Pakistan but the same was also dismissed vide order dated 11.02.2014.
Even otherwise, as per law, only a record of last five years is to be taken into consideration but, here in the case of the petitioner, the record pertaining to the year 2002 has been taken into account, which is not justified as per direction contained in Notification dated 24.06.2003 read with Notification dated 07.01.1969. Hence, the same is not a valid ground for supersession of the petitioner for his promotion as Assistant Food Controller. He further argued that, insofar as the second ground of missing ACRs is concerned, completion of ACRs is the duty of the department, and as per Instructions on ACR, it is not for the petitioner to complete his ACRs, The mala fide is so apparent from the record that no letter of any kind from any quarter concerned was ever issued to the petitioner to complete his ACRs, He submitted that petitioner filed departmental representation before the Director Food, Punjab for redressal of his grievance which is still pending since 29.09.2014.
3. Learned A.A.G. Submitted that admittedly, the petitioner was not considered for promotion as he did not fulfill the prerequisite of the Promotion Policy, 2010. As per order/decision passed by DDF, Multan dated 25.06.2008 he was found responsible, alongwith one Muhammad Ismail AFC, for misappropriation of wheat stocks and other articles amounting to Rs, 2,074,850/-. A reference has also been made to the Director Food for clothing the status of Muhammad Ismail for initiating joint proceeding .Against both the officials. In this regard a Printed Draft Para is also pending against him in which Audit Department has communicated to affect the recovery. Learned A.A.G.
Submitted that the Hon'ble Punjab Services Tribunal, vide his order dated 12.05.2003, did not fully exonerate the petitioner from the charge of recovery of Rs, 2,074,850/- and also dismissed his appeal. He further argued that the initiation of ACRs is the responsibility of the petitioner. The ACRs of petitioner relating to the years 1995, 1996, 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2006, 2007 and 2008 were missing, therefore, the petitioner was not promoted. The petitioner was not considered fit for promotion due to his poor and ,incomplete service record and he was superseded according to rules and regulations.
4. Arguments heard and record perused.
5. The case of misappropriation of wheat stock/articles amounting to Rs, 2,074,850/- has already been decided by the Punjab Service Tribunal vide judgment dated 12.05.2013. In Para 5 of the judgment, the said issue was validly adjudicated upon by the Hon'ble Chairman of the Tribunal by converting the penalty of dismissal from service on the issue into penalty of reduction to a lower stage in pay scale. The Civil Petition filed by the department against the judgment of Punjab Service Tribunal was also dismissed by the Hon'ble Supreme Court of Pakistan vide judgment dated 11.02.2014. Even otherwise, as per Promotion Policy 2010, record of last five years is to be considered for promotion. As per record, no penalty, justifying the withholding of promotion, has been awarded to the petitioner during the last five years. Mere pendency of reference is not a valid ground for supersession of the petitioner for his promotion as Assistant Food Controller.
6. In case titled "Chief Secretary v. Muhammad Arshad Khan Niazi" (2007 SCMR 1355), Hon'ble Supreme Court of Pakistan held as under:--- "The domestic inquiry initiated against the respondent should have been completed within the prescribed period, as envisaged under E&D Rules, which the Department had failed to conclude within the permissible span of time and the delay in concluding the same could not be attributed to the respondent nor could be legitimately be made to suffer for the lapses on the part of the Department, which eventually precluded him to further promotion and to benefits of BS-20 granted to the officers junior to him, hence; in such circumstances, it was rightly concluded by the learned Services Tribunal that the respondent was entitled to promotion from the date his Juniors were promoted."
' In this regard, another case-law "Rana Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmad Khan and another" (2012 SCMR 6) can also be referred.
6. Non-availability of record for promotion including ACRs is not the fault of the petitioner.
Reference in this regard can be made to Parvaiz Akhtar v. Federal Government (2014 PLC (C.S.)
504). In the case of Parvaiz Akhtar supra, this Court has observed as follows:--- "6. Admittedly, petitioner has an unblemished record of service with honesty, efficiency and compatibility. Non availability of the record for promotion including ACRs by the Department was obviously not the fault of the petitioner for which he could not be made to suffer as recently held in Secretary Schools of Education and others v. Rana Arshad Khan and others (2012 SCMR 12). Rule 2.87 ibid is attracted as admittedly the petitioner is now at No, 1 vide seniority list circulated on 26- 4-2012 and has a fair chance of being promoted on the basis of FR-17 ibid."
7. In view of the aforesaid, the case is remitted to respondent No, 2 to decide the representation filed by the petitioner, within a period of fifteen days from the date of receipt of this order, after hearing the petitioner, strictly in accordance with law, under intimation to Deputy Registrar (Judicial) of this Court.
8. Instant writ petition is disposed of in the above terms.