MUHAMMAD SAJID MEHMOOD SETHI, J. Through instant appeal, appellant has challenged vires of order / letter dated 27.06.2022, whereby appellant's representation for proforma promotion as District & Sessions Judge w.e.f. July 2009, was declined.
2. Brief facts of the case are that appellant was appointed as Civil Judge on 22.12.1983, however during service earned adverse remarks in various PERs pertaining to periods i.e. 01.01.1998 to 31.12.1998, 01.01.1999 to 30.06.1999 and 01.01.2000 to 05.07.2000, which were challenged in separate Service Appeals No.83, 84 & 85 of 2001. The said appeals were accepted and adverse remarks were expunged vide judgment dated 30.01.2003 (announced on 27.02.2003). Respondent filed C.P.No.1483-L of 2003, which was dismissed and leave was refused vide order dated 08.12.2003.
Respondent's Civil Appeals No.1832 & 1833 of 2003, were also dismissed vide judgment dated 26.04.2007. Thereafter, appellant was promoted as Senior Civil Judge and then Additional District & Sessions Judge. Appellant applied for proforma promotion w.e.f. 1999, which was declined and representation in this regard was also dismissed. Feeling aggrieved, appellant filed Service Appeal No.8/2013, which was allowed vide judgment dated 24.10.2014 and matter was remitted to the authority to re-consider the case. However, appellant's case could not be decided and meanwhile he retired from service w.e.f. 12.04.2015, attaining the age of superannuation. Appellant was granted promotion as Senior Civil Judge w.e.f. 23.11.1999 and as Additional District & Sessions Judge w.e.f.
12.09.2000, however, was not promoted as District & Sessions Judge w.e.f. July, 2009 when his junior namely Ch. Abdul Hameed was so promoted. Appellant filed representation, which was declined in the meeting of Hon'ble Administration Committee, held on 12.04.2016. Appellant filed Service Appeal No.5/2016, which was disposed of vide order dated 16.11.2021 but said decision was also not implemented. Ultimately, appellant's request for proforma promotion was declined vide impugned letter dated 27.06.2022. Hence, instant appeal.
3. Learned counsel for appellant submits that appellant is entitled to be granted proforma promotion from the date when his junior was promoted. Adds that respondent was under obligation to implement decisions of this Tribunal as well as Hon'ble Supreme Court. Further submits that adverse remarks in PERs stood expunged and same could not be made basis to refuse promotion to appellant. Contends that delay for grant of promotion to appellant is attributed to respondent and appellant cannot be punished for the fault of the authority. Argues that impugned order does not reflect lawful reasons while declining appellant's request, hence, same is unsustainable in the eye of law.
Conversely, learned counsel for respondent defends the impugned order.
4. Arguments heard. Available record perused.
5. Perusal of record shows that adverse remarks in appellant's PERs for the periods under consideration stood expunged by this Tribunal and the decision was upheld by the Hon'ble Apex Court, and in this way hurdle in the way of appellant's promotion stood removed. Appellant's claim was that he was entitled to be promoted as Senior Civil Judge w.e.f. 16.11.1999, Additional District & Sessions Judge w.e.f. 05.09.2000, when Ch. Abdul Razzaq, next junior to him was promoted as such, and District & Sessions Judge w.e.f. July, 2009, when his junior, namely Ch. Abdul Hameed was granted such promotion. It is admitted position that appellant has duly been awarded promotions as Senior Civil Judge and Additional District & Sessions Judge, however, his promotion as District & Sessions Judge is not being made. This Tribunal in Service Appeal No.08 of 2013, vide judgment dated 24.10.2014, evaluated the reasons advanced by respondent for not awarding promotion to appellant as District & Sessions Judge and declared it to be ill-founded by observing that adverse remarks stood expunged and there was no justification for withholding appellant's promotion. It was further observed that the authority had incorrectly ignored appellant's PERs for the periods in question and the authority was directed to adjudge appellant's case from the date when his junior was promoted. Undeniably, said decision was not challenged by respondent before Hon'ble Supreme Court, thus, attained finality.
The said decision was not implemented, however the Hon'ble Administration Committee placed the matter before the Performance Evaluation Committee afresh for consideration and recommendation. The matter remained un-attended, and again vide order dated 16.11.2021 passed in Service Appeal No.05 of 2016, this Tribunal passed direction for decision in the matter by considering it as a "special agenda case".
6. We have minutely gone through the minutes of meeting of Performance Evaluation Committee, held on 13.05.2022. The reason for declining proforma promotion to appellant is that he filed representation in this regard after his retirement, therefore, same cannot be considered under the law. Admittedly, appellant had been pursuing the matter before the department, this Tribunal and Hon'ble Apex Court and decision of this Tribunal, affirmed by Hon'ble Apex Court, was also passed in his favour while he was in service. Record duly reflects that pursuant to direction of this Tribunal vide judgment dated 24.10.2014, passed in Service Appeal No.08 of 2013, the matter of appellant's proforma promotion was before Performance Evaluation Committee, therefore, delay in rendering decision attributed to respondent cannot be construed to adversely affect the appellant.
7. In somewhat similar case, the Hon'ble Apex Court while responding to question regarding non- filing of specific representation for award of promotion during service, in the case reported as Secretary School of Education and others v. Rana Arshad Khan and others (2012 SCMR 126), has made following observations:- "6.... Coming to the facts of this, we find that it has not been disputed before this Court that much before the retirement of the respondents, a working paper was prepared by the department with regard to their promotion but the matter was delayed without any justifiable reason and in the meanwhile respondents attained the age of superannuation. They cannot be made to suffer on account of the departmental lapse. The argument of learned Law Officer that the respondents were not entitled at the relevant time to be granted promotion for one reason or the other is rather misconceived as the operative part of the impugned judgment has candidly directed that the working paper of the respondents shall be prepared and they will be considered for grant of next grade notwithstanding their retirement, if they are even otherwise found entitled thereto. This in fact would now be pro forma promotion."
8. It is reiterated at the cost of repetition that adverse remarks in appellant's PERs stood expunged a long ago and admittedly, there is no question as to merit and eligibility of appellant for proforma promotion as District & Sessions Judge. Appellant had unblemished career as Judicial Officer and no other legal impediment in way of granting proforma promotion to appellant has been advanced by respondent.
9. Since the appellant stood retired and at that time, matter was pending before Performance Evaluation Committee, therefore, he is entitled to proforma promotion as District & Sessions Judge from the date when his junior namely Ch. Abdul Hameed was granted such promotion and consequential benefits as per law.
10. In view of the above, instant appeal is allowed in the above terms.