Tauqeer Ahmed Khan, Member. By means of this appeal under Section 4 of the Service Tribunals Act, 1973, appellant (an Assistant Sub-Inspector) (OM), assails the order dated 2.4.2019 through which, allegedly, his juniors (private Respondents-3 to 12) were promoted as Sub-Inspectors (OM/BS-14 with 20% Special Pay of the basic pay). Appellant preferred a departmental representation on 30.4.2019 which remained un-responded.
2. Succinctly, the facts of the case are that the appellant was appointed as L.D.C. (Constable -- BPS-05) on 18.8.1994; promoted as Head Constable (BPS-07) on 31.5.2003; further promoted as Assistant Sub-Inspector (BPS-09) on 07.01.2013, after qualifying the prescribed course for the purpose of Promotion to the post of Assistant Sub-Inspector on 13.6.2011.
It was stated that despite passing/qualifying the prescribed course i.e. UPC-08/2015 for promotion to the post of Sub-Inspector in September/November, 2015, he was not promoted as such, but persons, juniors to him as per last seniority list, were promoted vide impugned order.
It was also stated that no adverse remarks were ever communicated during the entire period of his service, except one, against which Appeal No. 76(K)CS/2019 is pending before this Tribunal, as such, it was presumed that ACRs of entire period is very good; hence, ignoring him for promotion to the post of Sub-Inspector, without any cause, reason or justification is bad in law, thus liable to be set aside. His services were appreciated from 2012 till 2019 by issuing him appreciation letters.
Vide order dated 02.5.2017, a minor penalty of withholding for two years annual increment/promotion, was imposed upon him; against which appeal bearing No. 143(K)CS/2017 was filed before the Tribunal and this Tribunal vide judgment dated 20.6.2019 has been pleased to set-aside the impugned order, copy of the judgment has been filed at annexure `J'. It was further stated that the said penalty was later modified to "withholding for two years annual increments falling on 01.12.2017 & 01.12.2018"; another office order dated 21.11.2017 was issued by which office memo dated 02.5.2017 was superseded. It was further stated that reason for not promoting/considering the appellant was apparently that disciplinary proceedings were pending against him and in this connection certain examples were quoted in the appeal where despite pendency of proceedings, Muhammad Musa and Syed Sikandar Ali Zaidi, were promoted.
A departmental representation was filed by him, on coming to know about the promotion of his juniors, through proper channel, but the same has remained un-responded. It was further stated that despite his being senior to the private respondents and qualifying the requisite course for the post of Sub-Inspector, he has been denied his legitimate right of promotion; hence, he is entitled to be considered for such promotion with effect from the date his juniors were promoted vide notifications dated 22.8.2017, 19.01.2018 and 02.4.2019.
It was stated by the appellant that this Tribunal has ample power to direct the respondents to promote him to the next post of Sub-Inspector and reliance has been placed on a judgment of this Tribunal dated 09.10.2018 in Appeal No. 104(K)CS/2013, having been upheld by the Apex Court vide order dated 17.12.2018 in C.P. No. 1175-K/2018 because the petition against the said judgment of this Tribunal has been dismissed by the Hon'ble Supreme Court, as such, the judgment of this Tribunal has been maintained.
It was prayed that the impugned orders dated 02.4.2019, 22.8.2017 and 19.01.2018 be set aside and respondents be directed to promote him as Sub-Inspectors with effect from the date his juniors were promoted.
3. In comments filed on behalf of official respondents, legal objection were raised that the jurisdiction of this Tribunal has barred by second proviso to rule-4(1)(b) of Service Tribunals Act, 1977; promotion cannot be claimed as a matter of right.
On merits, it was stated that mere passing of mandatory training course for promotion does not qualify a candidate for promotion. There are other factors as well which are required to be considered for promotion. Accordingly, the case of appellant was put before the DPC and he was considered for promotion from ASI (OM) to SI (OM) four times, however, DPC did not recommend him for Promotion and deferred for the following reasons: S.NODate of DPCRecommendations of DPC
1. 21.8.2017Deferred for indifferent record of service as he was awarded minor penalty of "withholding of annual increments/ promotion" for two years on finalization of disciplinary proceedings.
2.16.01.2018Deferred for indifferent record of service as he was awarded minor penalty of "withholding of annual increments for two years falling on 01.12.2017 and 01.12.2018", on finalization of disciplinary proceedings.
3.27.3.2019Deferred for indifferent record of service, Let him earn one more satisfactory PE for the year 2019.
It was stated that juniors were promoted on seniority-cum fitness basis, observing merit.
Performance of the appellant remained questionable as is evident from disciplinary proceedings initiated against him on different occasions. He was served with a show cause notice dated 13.10.2011; resultantly warning dated 25.11.2011 was issued to him. He was placed under suspension for a period of three months vide order dated 02.2.2017, whereafter, a charge sheet dated 03.2.2017; after adopting proper inquiry procedure and being dissatisfied with the reply to the charge sheet; he was served with a show cause notice dated 04.4.2017. The competent authority, imposed minor penalty of 'withholding for two years annual increment/ promotion' upon him vide office order dated 02.5.2017. The appellate authority i.e. D.G.IB afforded personal hearing to the appellant and modified the penalty to 'withholding for two years annual increments falling on 01.12.2017 and 01.12.2018', vide order dated 13.11.2017. Further the appellant was issued warning letters dated 07.8.2017 and 12.12.2017 and one advice dated 23.8.2017 during the period of impugned ACR; an explanation letter dated 23.2.2018 was also issued on account of submitting fake family TA/DA claim, whereafter, a show cause notice dated 21.3.2018 was served and a minor penalty of `censure' was imposed on him vide order dated 26.6.2018 which was lateron set-aside by the DG IB vide order dated 30.01.2019.
It was stated that decision of this Tribunal in favour of the appellant in a particular case, does not qualify him for promotion, a there are so many other cases which were decided against the appellant as mentioned above. Further, the appellant was considered by the DPC three times but was deferred for reasons mentioned against each. Further stated that disciplinary proceedings on account of loss of IB service and fleet cards during an accident is not as serious a matter as was the case of appellant. The case of SI, referred by appellant, was different than the appellant.
4. The appellant, in reply to the comments, submitted his synopsis/rejoinder to the comments, rebutting the legal objections of the respondents by relying on 2016 PLC (CS) 87; 2007 SCMR 54, 1998 SCMR 2280, 1998 SCMR 2129, 2002 PLC (CS) 442 and PLD 1981 Karachi 750 and emphasized the judgment of this Tribunal dated 09.10.2018 passed in Appeal No. 104(K)CS/2013 (RI-6937 Inspector GD Lutufullah Memon-v Secretary, Ministry of Interior, Government of Pakistan, Islamabad), where this Tribunal has directed the department to promote the appellant therein to the rank of DSR w.e.f. 15.8.2013 alongwith all consequential back benefits. The said judgment of this Tribunal has been maintained as the Petition there-against was dismissed by the Apex Court vide Order dated 17.12.2018 in C.P. No. 1175-K/2018.
It was stated that ACR for the year 2018 was to be Considered which was very good; judgment of this Tribunal dated 26.2.2020 in Appeal No. 76(K)CS/2019 has been filed through which the remarks in the ACRs for the year 2017 were ordered to be expunged.
Regarding issuance of show cause notice dated 13.10.2011 and warning dated 25.11.2011, it was submitted that both were withdrawn by the department itself vide No SPHQ/Estb-II/7188/2011 dated 25.11.2011. Regarding issuance of charge sheet dated 03.2.2017 and show cause a notice dated 04.4.2017/imposition of referred penalties, it was submitted that same were challenged before this Tribunal in Appeal No. 143(K)CS/2017 which was allowed vide judgment dated 20.6.2019, thereby orders imposing minor penalty were set-aside. Office order dated 26.6.2018 imposing minor penalty of 'censure' was set-aside vide order dated 21.2.2019. It was further stated that the judgment of this Tribunal is binding on the department, until it is set-aside by the Apex Court.
5. Private Respondents No. 3 to 12 failed to appear and contest the matter despite repeated notices even sent through courier and because the appeal was pending since 2019, they were debarred from filing the comments vide order dated 02.3.2021 and matter was ordered to proceed ex-parte against them.
6. We have heard the learned counsel for both sides and perused the record minutely.
7. While the appeal was pending before this Tribunal, an order No. E.C.O.O. No.347/2020 dated 25.8.2020 has been issued by the department itself, promoting the appellant as Sub-Inspector (OM/ BS-14 with 20% special pay of the basic pay) against the vacancy of promotion quota with a effect from 31.3.2020. The same for the sake of convenience is reproduced as under: "With the approval of the Competent Authority, Mr. Muti-ur-Rehman Siddiqi (s/o Shafiq-ur- Rehman) Assistant Sub-Inspector (OM/BS-14 with 20% special pay of the basic pay), presently working as Sub-Inspector (OM/BS-14 with 20% special pay of the basic pay) under Section 10 of CSA, 1973 in the Intelligence Bureau is promoted as Sub Inspector (OM/BS-14 with 20% special pay of the basic pay) against the vacancy of promotion quota with effect from 31.3.2020 and until further orders.
2. The above-mentioned official is placed on probation for a period of one year with a immediate effect extendible for a further period not exceeding one year. If no order is made on expiry of the first year of probation, it will be deemed to have been extended for a period not exceeding one year. However, if no order is made on expiry of the extended period of probation it shall be deemed to have been completed successfully.
3. Being deferred case, he will have the same inter se seniority in the rank of Sub Inspector (OM/BS- 14) on his promotion, which he was enjoying in the rank of ASI(OM/BS-11)."
In our view, the appellant should have been promoted to the post of Sub-Inspector from the date when he was admittedly deferred and promoting the appellant with effect from a 31.3.2020 by the order dated 25.8.2020, reproduced above, is not understandable. In the comments, the respondents have admitted that in the DPCs held on 21.8.2017, 16.01.2018 and 27.3.2019, the appellant was deferred. When admittedly, the order dated 25.8.2020 has been issued promoting him as Sub- Inspector from 31.3.2020, he should have been promoted from the date of his first deferment i.e. 21.8.2017, when there was nothing adverse against. As and when the reasons for deferment ceased to exist, the employee was to be promoted from the date when his juniors were promoted. Reliance is placed on 2018 PLC (CS) N 126. Yet in another case, it was observed that, "... Civil servant whose promotion had been deferred was to be considered as soon as the reason on the basis of which deferment took place ceased to exist---deferment by itself referred to certain shortcomings which in due course of time when fulfilled, the officer should be re-considered for promotion and was allowed promotion with effect from the date when he was deferred". Reliance is placed on 2018 PLC (CS) N 170.
7. For what has been discussed and observed above, we are inclined to direct the respondents to consider the appellant to have been promoted as Sub-Inspector from the date when he was firstly deferred i.e. 21.8.2017 as admitted in the comments and then issue the modified order of his promotion from that date, instead of his promotion with effect from 31.3.2020 made vide order dated 25.8.2020. Order accordingly. Appeal, in view of the above, is disposed of as such.
8. No order as to costs. Parties be informed accordingly.