MUHAMMAD SAJID MEHMOOD SETHI, J. -- Through instant appeal, order dated 12.01.2015 issued by respondent has been assailed, whereby appellant's representation against his deferment from promotion to the post of District and Sessions Judge, was filed being infructuous in view of appellant's retirement from service.
2. Brief facts are that initially appellant was appointed as Civil. Judge and promoted as Senior. Civil Judge and Additional Sessions Judge. But his promotion as District and Sessions Judge was deferred on account of pendency of certain complaints. Appellant preferred representation for consideration of his case for promotion, which remained--unattended and meanwhile appellant was retired from service as Additional Sessions Judge on attaining the age of superannuation on 03.03.2012. Later on, appellant filed application seeking information regarding status of his representation and in pursuance whereof, appellant was informed that his representation was filed vide order dated 12.01.2015, having become infructuous in view of his retirement from service.
Hence, instant appeal.
3. Learned counsel for appellant submits that neither any show-cause notice was issued to the appellant regarding the complaints nor any inquiry was conducted. He adds that do adverse remarks/entries exist in the service record of appellant. He argues that unfounded complaints have been recommended to be filed on merits by the Hearing Officer, appointed by respondents, vide his report dated 31.05.2013. Conversely, learned counsel for respondent defends the impugned order.
4. Arguments heard. Available record perused.
5. Perusal of record shows that promotion of appellant as District and Sessions Judge was deferred by the Administrative Committee ("AC") till finalization of the complaints filed against him, Subsequently, some of the complaints were filed on merits and others on account of retirement of appellant. As per AC meeting held on 01.05.2013, appellant was afforded opportunity of personal hearing before the Hearing Officer of Lahore High Court, who also reviewed the complaints, which were earlier filed due to superannuation of appellant and found them baseless on merits vide his report dated 31.05.2013. Consequently, representation for promotion of the appellant was recommended to be allowed. The operative part of the findings of the Hearing Officer is as under:-- "6. In order to determine the usefulness of the Officer in the service, his service history as well as ACR Dozier has been examined which does not contain any adverse remarks against him rather his integrity, efficiency and hardworking has been appreciated at all level firstly by his Reporting Officers as well as quarterly special report available in Dozier which relates to date 31.1.2002 in which the performance of the Judicial Officer was found not to be satisfactory and according to the Reporting Officer he needed constant labour and hardworking in judicial work. In this regard, the officer has placed on record the letter dated 10th February, 2002 issued by the Registrar of this Court, informing the officer that the remarks , contained in the special report has been expunged.
The general evaluation of the record of the officer indicates that he was a clear headed, hardworking, efficient officer who had been a source of great help and strength to the department.
Further in his ACRs it is recorded that he is polished, well groomed officer who carried himself with poise and dignity, an honest, loyal, dependable officer, gives his opinion with great sense of jurisprudence, courageous, impartial which is expected of a Judge, while in some of his ACRs, he was declared an asset to the judiciary, very studios with up-to-date knowledge of case-law, good approach to take legal problems and interpretation of law, a straight forward and bold officer having good reputation.
In view of this background, representation made by the officer may be allowed and he may be promoted in next higher grade alongwith his batch fellows.
(Emphasis supplied)
6. Needless to say that withholding of promotion of an officer is a major penalty, therefore, non- consideration of an officer for promotion is to be based on the relevant law and on some tangible material relating to merit and eligibility. Admittedly, neither any show-cause notice was issued nor any inquiry to check authenticity/genuineness of so-called complaints was every initiated. Even otherwise, it is against the principle of natural justice to draw a conclusion adverse to the interest of a person on the basis of disputed facts without recording the evidence and providing him proper opportunity of defence. It is well-settled that mere pendency of inquiry/complaints is no ground to withhold promotion by denying his consideration for promotion without establishing any charge. Reference can be made to Maj. Zia-ul-Hassan, Home Secretary and others v. Mrs. Naseem Chaudhary (2000 SCMR 645), Chief Secretary, Government of the Punjab and others v.
Muhammad Arshad Khan Niazi (2007 SCMR 1355), Tariq Aziz-ud-Din and others [2011 PLC (C.S.)
1130], Shama Khan Zafar v. District Coordination Officer, Lodhran and others [2014 PLC (C.S.) 948], Muhammad Amin v. Managing Director, House Building Finance Corporation and 2 others [2016 PLC (C.S.) 569 and Muhammad Akbar Khan Durrani v. Federation of Pakistan through Secretary Water and Power-Government of Pakistan and 5 others [2017 PLC (C.S.) Note 31].
In the case of Muhammad Akbar Khan Durrani supra, the Hon'ble Sindh High Court has observed as under:-- "7. Indeed, the petitioner has earned good evaluation remarks in his ACRs/PERs throughout his service career and prior to the posting of respondent No, 6 as Chief Executive Office HESCO, Hyderabad, neither any show-cause notice nor any letter of explanation has ever been issued and even no material has been placed by the respondents that any adverse remarks were ever passed against the petitioner, and this aspect on the contrary enshrines his satisfactory performance. It is significant to mention that respondents till date have not issued any show-cause notice to the petitioner nor any departmental inquiry has been initiated against him in support of the allegations levelled in all the letters of explanation perusal further emanates that seniors and juniors colleagues of the petitioner have been considered and promoted to next grade but the case of promotion of the petitioner was not considered on merits and same was deferred due to pendency of above-referred letters of explanation. It is well-settled that mere issuance of departmental inquiry or even lodgment of any FIR against any Civil Servant, shall not deprive him from his next promotion, if he is otherwise qualified and meets all the requisite formalities for consideration to be promoted in next grade. Similarly, there is neither any bar nor any impediment upon the department to proceed further and simultaneously initiate disciplinary proceedings against any Civil Servant in accordance with law".
7. Undisputedly, appellant has unblemished carrier as Judicial Officer for about 25-years except some unfounded complaints and even after filing of said complaints, appellant earned clear ACRs.
8. Since the appellant stood retired during pendency of his representation, he is entitled to proforma promotion as District and Sessions Judge and consequential benefits as per law.
Resultantly, instant appeal is allowed and the matter is remitted to respondent to re-consider the case of appellant for his proforma promotion as District and Sessions Judge from the date when his juniors were promoted.