JUSTICE (R) SAGHEER AHMED QADRI, CHAIRMAN.---The necessary facts to dispose of this appeal are that the appellant-Muhammad Naseer son of Muhammad Hussain was initially appointed on 02.10.1975 as Buildozer Operator on a vacant permanent seat and remained on performing his duties; that he was retired on 12.05.2013 and previously his case for promotion was matured and Departmental Promotion Committee was to be held by the respondent-department but due to certain reasons it was delayed and by that time appellant after superannuation retired on 12.05.2013 although the working paper was prepared including the name of the appellant, however, Departmental Promotion Committee was held on 17.05.2013 and due to his retirement the appellant was no considered; that the appellant moved departmental appeal which was dismissed vide order dated 23.07.2013 Ex.P.6. Feeling aggrieved the appellant after submission of the grievance notice filed the grievance petition before the learned trial court with a prayer that due to above mentioned circumstances although he was entitled but due to superannuation he was not considered for promotion, prayed that while allowing the grievance petition, the respondent- department be directed to grant him per forma promotion with all back benefits.
2. This grievance petition was replied by the respondents by raising six preliminary objections. In Para 2 of the written reply it was objected:-- "As per Promotion Policy, 2010, Notified by the Government of the Punjab Services and General Administration Department (Regulations Wing) No, SOR-II(S&GAD)2-134/10 dated 11th August, 2010, under section 2(2) "Subsection (1) of section 8 of the Punjab Civil Servants Act, 1974 provides that a civil servant shall be eligible to be considered for appointment by promotion to a post reserves for promotion in the service cadre to which he belongs. Subsections (2) and (3) further lay down that promotion including Performa Promotion shall not be claimed by any civil servant as of right and that promotion shall be granted with immediate effect and be actualized from the date of assumption of charge of the higher post and shall in no case be granted from the date of availability of post reserved for promotion." Hence, the petition of the petitioner is not maintainable in this court liable to be dismissed" .
On the factual side it was replied that as the appellant had retired on 12.05.2013 and Departmental Promotion Committee was held on 17.05.2013, therefore, he was not found entitled for promotion, prayed that grievance petition be dismissed.
3. Learned trial court recorded the statement of the appellant as Pw-1 wherein he reiterated his stand mentioned in the grievance petition and his learned counsel while getting exhibited documents Ex.P.1 to Ex.P.8.
On the other hand Muhammad Ashraf Admin Officer appeared as RW-1 and reiterated his stand mentioned in the written reply. He was cross-examined and the learned counsel for the respondents vide statement dated 04.09.2014 while exhibiting the documents Ex.R.1 to Ex.R.12.
4. The learned trial court after hearing the parties vide impugned judgment dated 03.03.2015 dismissed the grievance petition. Feeling aggrieved the appellant has preferred this appeal.
5. Learned counsel for the appellant argued that the service records of the appellant was unblemished and he was entitled for the promotion as vacancies were available and working paper was prepared including the name of the appellant, however, due to lethargic attitude of the respondent's officials delay was caused without any lawful justification, although the appellant moved an application Ex.P.1 prior to his superannuation to the department that he was retired on 12.05.2013, therefore, his case for promotion be considered, that application was forwarded by the Unit Supervisor to the concerned officials i,e, Assistant Agriculture Engineer for further action on 04.02.2013 and further it was recommended on 12.02.2013 for necessary action but no action was itiated and by the time 'the appellant had retired; that subsequently to the superannuation the case of the appellant was put before the Departmental Promotion Committee held on 17.05.2013 but inspite of the fact that he could halve granted the performa promotion but without lawful justification only on the basis that he has been retired his case was not considered. Learned counsel while relying on 2012 SCMR 126 titled Secretary School of Education and others v. Rana Arshad Khan and others and 2009 PLC (C.S) 229 titled Mrs. Naseem M. Qadri v. Federal of Pakistan and another, prayed that learned trial court did not consider the facts and law on the subject especially the judgment cited and wrongly dismissed the grievance petition, prayed that it be allowed and respondent-department be directed to grant performa promotion to the appellant accordingly.
6. Learned counsel for the respondents opposed the arguments advanced by the learned counsel for the appellant on the ground that as the appellant has superannuated, therefore, he was not entitled for performa promotion in the light of Notification by the Punjab Service and General Administration Department (Regulations Wing) No, SOR-II (S&GAD) 20134/10 dated 11-08.2010, under Section 2(2) subsection (1) of section 8 of the Punjab Civil Servants Act, 1974; that learned trial court considered all these aspects and rightly dismissed. the grievance petition. Prayed that this appeal be dismissed.
7. I have heard learned counsel for the parties and perused the records of the trial court minutely.
8. There is no denial to the fact that appellant was at serial No,2 in the seniority list at the time when he was retired. It is also admitted fact that appellant's name was included in the working paper for grant of promotion to be considered by the Departmental Promotion Committee. If the appellant's statement as PW-1 and his assertions in the grievance notice as well as grievance petition are seen, he specifically agitated that he was at serial No, 2 in the seniority list and there were vacancies available in the higher grade and he while apprehending moved application Ex.P.1 dated 04.02.2013 with the prayer that as he was about to superannuate on 12.05.2013, therefore, his case for promotion be considered prior to said date so that he may avail the benefits in this respect. It is also on the records that said application was forwarded vide No, 1612 doted 04.02.2013 to the cancerned authorities and it was further forwarded to the Agricultural Engineer for necessary action on 12.02.2013 but no further action was initiated and by time appellant retired on 12.05.2013. It is admitted fact that Departmental Promotion Committee subsequently was held on 17.05.2013 and name of the appellant was also included in the list of employees who were considered for promotion. If the statement of sole witness Rw-1 Muhammad Ashraf Admin. Officer appeared on behalf of the respondent is seen he in his cross-examination admitted that: {{URDU TEXT}} If the above mentioned statement of the respondent's witness is seen the assertions by the appellant in his grievance petition and in his statement almost are admitted facts. There is no denial to the fact that appellant's case was put before Departmental Promotion Committee on 17.05.2013 and as one of the ACRs of the appellant was not there, therefore, his case was not considered. The preparation of the service records or its up-keeping is the duty of a department and not that of any employee and only on this basis that record was not complete depriving of a person of promotion which is a right granted under the constitution is a material illegality.
9. Their lordships of honourable Supreme Court of Pakistan in a similar situation in the judgment cited by the learned counsel 2012 SCMR 126 titled Secretary School of Education and others v. Rana Arshad Khan and others, upheld the judgment passed by Service Tribunal whereby it was directed to the department to convene the Departmental Promotion Committee and put the case the employee in that case for considering his Performa promotion. The honourable Supreme Court of Pakistan in the above mentioned judgment held: "Promotion.. Working papers regarding appellant's promotion prepared before their retirement from service on attaining age of superannuation... Denial of promotion to appellants due to their retirement...Service Tribunal while accepting appeal directed department to prepare working papers regarding appellants' promotion and place same before Selection Board for consideration...Validity...Department had delayed matter of appellants' promotion without any justifiable reason, for which they could not be made to suffer...Appellant's promotion after retirement from service would be pro forma promotion...Supreme Court refused to grant leave to appeal in circumstances".
Here in this case inspite of the appellant's application/ representation his case was not considered only on technical ground. The learned trial court while referring in Para 9 of the judgment performa promotion policy of Government of the Punjab dated 19.04.2013 while applying Para 6 refused to allow the grievance petition, however, those instructions in the light of the judgment passed by the honourable Supreme Court of Pakistan cannot be deprived a person from his lawful right which accrued prior to his superannuation and he was deprived all those benefits due to negligence on part of the department not that of the employee.
10. In view of the above discussion, while allowing this appeal the impugned judgment dated 03.03.2015 passed by the learned trial court is hereby set-aside. The respondent-department is directed to convene the Departmental Promotion Committee within one month positively and put the case of the appellant as had to be put on 17.05.2013 and after due consideration if the appellant is entitled for promotion, he be granted performa promotion and in case he is promoted his all benefits be calculated and granted to him accordingly. File be consigned to the records room after its due completion. The trial court's records be sent back immediately.