JUSTICE (R.) SHOAIB SAEED, CHAIRMAN --- Briefly appellant was appointed as Constable on 08.09.1993. He was promoted as Head Constable w,e,f, 1009,2003. He qualified Intermediate (HCs)
Class Course in term ending May 2,008 and admitted into list 'D' 01.06.2008, after qualifying Intermediate Class Course he was promoted to the rank of ASI w,e,f, 01.09.2008.
2. Appellant alongwith his batchmates was considered for promotion to the rank of SI in DPC held in January 2016 but deferred due to following reasons:--- "He has not completed two years mandatory field experience: Moreover, his ACRs for the period from 01.09.2008 to 31.12.2008, 2009, 20102014 are awaited. Deferred."
3. He filed an appeal against his deferment and was informed that he will be considered in next DPC. Against. order of deferment appellant filed appeal No 3107/20,16 before the PST which was disposed of vide order dated 20.07.2016 with the following observations--- "Perusal of the record reveals that since the departmental appeal of the appellant before the Inspector General of Police, Punjab; Lahore is pending under the circumstances, he is directed to decide the same expeditiously, preferably within a period of 60 days in accordance with law."
4. In compliance of the order of this Tribunal IGP disposed of the same vide order dated 10.10.2016.
5. Later appellant was again considered for promotion to the rank of SI in next DPC held in January 2017.
6. Since appellant was found not fulfilling the criteria, therefore, the Board unanimously did not recommend the appellantfor promotion due to following reasons:--- "He has not completed 02 years mandatory filed experience. Moreover, his ACRs for the period from to 01.09.2008 to 31.12.2008, 2009, 2013 & 2015 are awaited. Deferred."
7.Accordingly appellant was deferred vide order dated 03.02.2017. He filed representation and was informed that he will be considered in the next DPC. Hence this appeal.
8. During pendency of appeal DPC was held on 24.08.2017 and he was again considered for promotion to the rank of SI by the Departmental Promotion Committee constituted for the purpose.
The Board unanimously again not approved him for promotion due to following reasons:--- "He has not completed 02 years mandatory' filed experience. Moreover, his ACRs for the period from 1.9.2018 to 31.12.2008, 2009, 2013, 2015 & 2016 are awaited. Also not recommended by DPO/Attock. Deferred."
9. Learned counsel for the appellant contends that appellant was deprived of promotion to the rank of SA. on account of incomplete record in DPC held on 22.01.2016. Later, appellant preferred departmental- appeal before respondent No, 1 which was not decided. Appellant preferred Service Appeal No, 3107/2016 before this Tribunal which was disposed 'of vide order dated 20.07.2016 with the direction to respondent No, 1 to decide departmental appeal of the appellant. In pursuance of the order of this Tribunal respondent No, 1 rejected departmental appeal of the appellant vide order dated 10.10.2016. It is argued that incomplete service record could not be made the basis of deferment of the appellant for promotion to the rank of SI. That completion of record/ACR was the responsibility of the concerned authority and a civil servant could neither be held responsible nor his promotion could be withheld on the ground of non-completion of record/ACRs, It is averred that appellant was deprived of due promotion at appropriate time for no fault on his part, hence he is eligible for proforma promotion from the date when his next juniors were promoted. That service record of the appellant is unblemished. Appellant has been meted with discriminatory treatment.
10. Conversely, learned District Attorney submits that plea of the appellant is incorrect because according to Govt. instructions dated 8.6.1971, the assessment of an officer for promotion to the higher post should be based on his entire service record. In the instant case, appellant at the time of his first consideration for promotion as S.I. was deferred due to field experience and missing ACRs, However, if he had complete service record, he could also have been promoted alongwith his colleagues/batch-mates. It is urged that as per rules promotion including proforma promotion cannot be claimed by any civil servant as of right.
11. Arguments heard, record perused.
12. Perusal of record reveals that plea of the department is that appellant's promotion was deferred due to incomplete two years, mandatory field experience and incomplete ACRs for different period, in rebuttal appellant stated that completion of record/ACRs is responsibility of the authority concerned. In this regard learned counsel has drawn attention of this Court to rule 13.17 of the Police Rules, 1934, which provides that:--- "(1) Superintendents shall prepare and submit annually to the Deputy Inspector General, after obtaining the District Magistrate's remarks thereon, reports in form 13.17 on the working of all Upper Subordinates serving under them. These reports shall be submitted to reach the Deputy Inspector General on or before 18th January."
13. He further placed on record PLJ 2009 Lahore 297 (DS)-in which the Hon'ble High Court relied on an unreported case of the apex Court titled Secretary Revenue Division, etc. v. Muhammad Saleem (Civil Appeal No, 1986/2001) wherein it was held that "the law has provided that it is duty of the department to get prepared PERs of an officer, so that same could be used for other prescribed purposes at the time of promotion of an official." Furthermore, reliance placed on PLJ 2009 Tr.C.
(Services) 138.
14. On the other hand, the condition of two years field experience for promotion of the appellant to the rank of SI has been waived off by the IGP vide order dated 09.10.2017, therefore, one cause made impediment in the way of promation of appellant ceased to exist by the order of IGP. It is a clear case of is crimination.
15. Now the question arises, as to whether non-availability of ACRs can be attributed to any act or lapse on the part of the appellant or it was an act of omission/commission on the part of respondent department. Moreso, keeping in view the provisions of Rule 13 17 of the Police Rules '1934, wherein is incumbent that Superintendents shall submit report to the Deputy Inspector General of Police on or before the date mentioned in the said rule. In DPCs held regarding consideration of promotion of appellant, he was deferred for non-availability of the ACRs, it was incumbent in view of the afore-referred rule for the respondent department to have completed the record but for undisclosed reasons ACRs for the years referred in deferment orders were either kept incomplete or not made available. Annual Confidential Reports in terms of Rule 13.17 is the domain of the department and failure to maintain record updated cannot be attributed/termed a lapse or fault on the part of -appellant thus penalizing appellant when due for promotion was in violation of the rule.
A civil servant should not suffer for an :act of public functionary nor can he be denied promotion for fault of the department as held by the Hon'ble Supreme Court of Pakistan in cases reported 1997 SCMR 515 & 2006 SCMR 469.
16. During arguments learned District Attorney vehemently argued that consideration for promotion is right of .a civil servant but no civil servant can ask for promotion as a matter of right. Be that as it may, there is no cavil to the proposition that civil servant cannot claim promotion as a matter of right but it is also an undisputed fact that it is an inalienable right of every civil servant that he be considered for promotion alongwith his batchmates when he fulfills eligibility criteria, it must be noted that consideration for promotion means a just and fair consideration and not as a matter of routine.
17. Upshot of the above, appeal is allowed with direction to IGP/respondent No, 1 to consider appellant's case for promotion in coming DPC from the date when his. juniors/batch-mates were promoted as Sub-Inspector.