MUHAMMAD SAJID MEHMOOD SETHI, J. / CHAIRMAN:- Through instant appeal, appellant has assailed vires of orders / letters dated 15.11.2021 & 18.12.2021, issued by respondent No.1, whereby appellant's request for grant of proforma promotion as Senior Civil Judge w.e.f. 21.11.2013 was declined and his representation in this regard was also dismissed.
2. Brief facts of the case are that appellant, while posted as Civil Judge at Layyah, was terminated from service on 16.02.2004, however, he was subsequently reinstated into service on 12.11.2014, pursuant to judgment dated 04.07.2014, passed by this Tribunal in Service Appeal No.06/2009.
During termination period of the appellant, junior to appellant, namely, Irfan Sheikh was promoted as Senior Civil Judge on 21.11.2013, however, appellant was granted such promotion on 06.12.2019.
Appellant tendered request for grant of proforma promotion as Senior Civil Judge w.e.f. 21.11.2013, but the same was turned down vide impugned order / letter dated 15.11.2021. Appellant's representation also met with the same fate vide impugned order / letter dated 18.12.2021. Hence, instant appeal.
3. Learned counsel for appellant submits that appellant's termination was declared illegal by this Tribunal, therefore, he is entitled for grant of proforma promotion as Senior Civil Judge from the date when his junior was granted such promotion.
4. Contrarily, learned Legal Advisor of respondent No.1 defends the impugned orders and submits that appellant's junior was granted promotion on officiating basis, not on regular basis, therefore, appellant is not entitled to get a regular promotion from that date. He further submits that the appellant has impleaded certain respondents at a belated stage, therefore, the instant appeal, to the extent of the newly added respondents, is barred by time and is hit by Section 22 of the Limitation Act, 1908 ("the Act of 1908"), making it not maintainable on this ground.
5. Arguments heard. Available record perused.
6. Record shows that vide Notification dated 16.02.2004, appellant was terminated in view of adverse remarks in his PER for the period from 01.01.2002 to 14.08.2002 and special report dated 06.11.2002. However, vide judgment dated 04.07.2014, passed by this Tribunal in Service Appeal No.06 of 2009, the said special report and the adverse remarks were held unsustainable, being not supported by the evidence / material brought on record. The said decision was acted upon by reinstating the appellant into service, and thus attained finality. Subsequently, appellant was also granted back benefits by considering him as on duty during the termination period, after a probe conducted by the concerned District & Sessions Judge, pursuant to judgment dated 18.11.2021, passed by this Tribunal in Service Appeal No.34 of 2015. Appellant was considered for promotion as Senior Civil Judge on 19.08.2015 but the matter was referred to the enlarged Performance Evaluation Committee for further probe / consideration into his antecedents. On 08.10.2015, his case for promotion was deferred for a period of one year, with the direction to get four quarterly special reports qua work, conduct and integrity of appellant during this period. On 14.04.2017, appellant's promotion case was deferred for a period of six months to obtain two quarterly special reports qua work, conduct and integrity during this period. It is evident from the record that all the said special reports were found satisfactory and appellant was promoted as Senior Civil Judge by the Administration Committee in its meeting held on 22.11.2019, by observing that the adverse remarks in the record had already lost the efficacy on account of subsequent positive PERs, wherein, he has been recommended for promotion; and that nothing adverse was found in the recent record qua the integrity and conduct.
7. It is conspicuous that all the hurdles in the way of appellant's promotion have been removed, as admitted by respondent No.1. Therefore, we find no plausible cause for not considering the appellant for promotion as Senior Civil Judge from the date when his junior was granted such promotion. Needless to say, in cases where a temporary embargo has been placed on a civil servant's right to promotion, or legal restraint has been imposed on his/her claim, the removal of such obstacles entitles the officer to remedy the monetary loss and loss of rank through proforma promotion. It is an inalienable right of every civil servant to be considered for promotion along with his batchmates once he fulfills the eligibility criteria. Reliance is placed upon Abdul Jabbar Khan v.
Government of Sindh through Chief Secretary, Karachi and 5 others (1996 SCMR 850), Chairman, State Life Insurance Corporation of Pakistan, Karachi and others v. Siddiq Akbar (2013 SCMR 752), Chief Secretary, Sindh v. Riaz Ahmed Massan and another (2016 SCMR 1784), Arshad Ali v. WAPDA and others [2020 PLC (C.S.) 1226], Federation of Pakistan through Secretary, Ministry of National Health Services v. Jahanzeb and others [2023 PLC (C.S.) 336], Wadhu Mal v. Province of Sindh through Principal Secretary Chief Minister and 3 others [2023 PLC (C.S.) 1310] and Nazir Ahmed Langah v. Lahore High Court, Lahore through Registrar [2024 PLC (C.S.) 1566].
8. The argument of the learned counsel for the respondent No.1, that the promotion of appellant's colleague (w.e.f. 21.11.2013) was on an officiating basis, subject to assumption of charge, and that the appellant cannot claim proforma promotion from the said date, is misconceived. On query, learned counsel for respondent No.1 could not deny that promotion of the appellant's colleague / junior as Senior Civil Judge was made in accordance with the eligibility criteria for substantive posts, after fulfillment of all legal requirements, the promotion was not rescinded at any subsequent stage and officiating promotion does not permanently preclude civil servant from receiving proforma promotion if he / she satisfies the requisite and his / her junior has been promoted to substantive post. Needless to say, an appointment by promotion on an officiating basis, under Rule 13(i) of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974, can be made against posts that fall vacant due to the circumstances mentioned in the said Rule. We specifically asked the learned Legal Advisor for respondent No.1 whether the posts against which the appellant's colleagues were promoted had fallen vacant as a result of any of the situations mentioned in Rule 13(1) of the said Rules. He frankly conceded that this was not the case, and that the respondents were promoted against regular vacancies. In an esteemed pronouncement reported as Secretary to Government of Punjab, Communication and Works Department v. Muhammad Khalid Usmani & others [2017 PLC (C.S.) 373], the Apex Court has observed that the device of officiating promotion could not be used by government departments to keep civil servants under their influence as it creates a constant source of insecurity, uncertainty, and anxiety for them.
9. Needless to say, the principle of proforma promotion seeks to ensure fairness in cases where administrative inefficiency or procedural delays result in a senior civil servant being bypassed.
Adverse ACRs, once resolved or mitigated through subsequent satisfactory reports, lose their impact on the civil servant's promotion eligibility. Officiating promotions cannot permanently preclude civil servants from receiving proforma promotion if they satisfy all criteria and their juniors have been promoted to substantive posts. Failure to grant proforma promotion in such cases would contravene the principles of fairness and equity.
10. So far as the stance of learned counsel for respondent No.1 that after impleading the new respondents, instant appeal is barred by limitation to their extent is concerned, undeniably, this Tribunal vide judgment dated 20.10.2017, passed in Service Appeal No.12 of 2013 titled Ashfaq Ahmad Rana v. Registrar Lahore High Court, Lahore, while relying upon case law reported as Muhammad Aslam Gill v. Secretary to Government of Punjab, Communication & Works Department (1983 SCMR 57), held that appeal without impleading the persons likely to be affected is incompetent and if impleaded after limitation, the appeal becomes barred by time. The said decision of this Tribunal was also followed while rendering judgment announced on 11.05.2018, in Service Appeal No.11 of 2013 titled Bashir Ahmad Chaudhary v. The Lahore High Court, Lahore through its Registrar and others. This decision was assailed by filing Civil Appeal No.1276 of 2019, whereby, the Apex Court while remanding the matter has observed that limitation would not bar the appellant to implead the Additional District & Sessions Judges, who were promoted, superseding the appellant's rightful claim, during the pendency of the appeal. Needless to say, none appeared on behalf of newly added respondents and they have been proceeded against ex parte, even there is no objection of limitation on their behalf and they shall not be prejudiced in any manner as the matter only pertains to financial benefits of the appellant. We are also fortified by dictum laid down by the Indian Supreme Court in the case reported as Mukesh Kumar And Ors vs Col. Harbans Waraich And Ors (AIR 2000 SC 172), wherein it was held that if the Court is satisfied that omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on an earlier date. Similar view was also expounded in Sri. K.S. Lokaiah S/O Sri. K.K.
Sannaiah vs M.B. Shivaraya S/O Late M.R. Belliappa [(2007 (1) AIR KAR R 532)], Northern Contractors (P) Ltd. v. M/S. Kapur Timber Stores (2013 Latest Caselaw 3415 Del), Arulmigu Mariamman Temple v. N. Subramaniam And Ors (1989) 1 MLJ 129), Rajani Kanta Roy And Ors. v.
Jyoti Prasad Singh Deo And Ors. (AIR 1924 Cal 90).
11. We are all familiar with the principle "Actus non facit reum nisi mens sit rea" which establishes that an act alone does not make a person liable unless there is wrongful intent. The British Courts have practically applied this principle in a number of decisions like Pitt v Holt [(2013) UKSC 26], Muir v. Jenks [(1913) 2 KB 412)], and Barclays Bank Ltd v. W J Simms, Son and Cooke (Southern)
Ltd [(1980) QB 677] to condone the bona fide mistakes and errors by the litigants. In India, this concept has been used in civil cases, particularly in procedural matters like non-joinder or mis- joinder of parties, with a view that a litigant should not suffer due to a bona fide mistake. In Mulji Tejsing v. Ransi Devraj [I.L.R. 34 Bom. 13], the Bombay High Court emphasized that a suit should not be defeated merely because of non-joinder unless it causes serious prejudice. Similarly, in Valluri Sambasiva Rao And Anr. vs Motamarri Veeraiah Gupta (Died) By Lrs [2003 (3) ALT100], the Court reiterated the principle that Courts have the powers to condone the bona fide mistakes regarding mis-joinder and non-joinder of parties. The same principle was reiterated in Hirasingh Sardarsing Parmar vs. Ramkuwarbai Sardarsingh [2008 (1) BOMCR 811], where the Court clarified that procedural technicalities should not hinder the course of justice if no mala fide intention exists.
We also find a similar approach by the Court in Guruvayya v. Dattatraya [(1903) I.L.R 28 Bom. 11], where a suit was originally filed by two plaintiffs, with Plaintiff No. 2 being impleaded as the manager of the joint family. Since the primary claim, based on alleged oral leases failed, an alternative prayer for declaration of ownership and possession was pursued. Upon the objection of the opposing party, other family members were subsequently added as co-plaintiffs after the limitation period had expired. While the District Court dismissed the suit, the Bombay High Court allowed the claim, holding that if fresh parties were merely joined for the purpose of safeguarding their interests, the bar placed under section 22 of the Act of 1908, would not affect the right of the original plaintiff to continue the suit. Jacob J. observed as under:- "If fresh parties are merely joined for the purpose of Safeguarding the rights subsisting as between them and others claiming generally in the same interest, the determination (by application of the provisions of Section 22 of the Limitation Act) of the date of institution of the suit as regards such freshly joined parties does not ordinarily affect the right of the original plaintiff to continue the suit, and would not therefore attract the application of the general provisions of the Limitation Act."
In this case, the appellant had filed the appeal against the department in time. So, even if it is accepted that in accordance with section 22 of the Act of 1908, his appeal was barred against the proforma respondents, yet that would not make his entire appeal liable to be dismissed on the point of limitation as the cause of action of the appellant against the department was already put in motion before the expiry of limitation. This view is in consonance with the decision by Kerala High Court in Chami Narayanan v. V.R. Krishna Iyer And Ors (AIR 1998 KERALA 365): "The above section of the Limitation Act is a clear indicative that a suit in respect of a new plaintiff or defendant added subsequently has to be deemed to have been instituted when the defendant or the plaintiff was made as a party In case there are more than one defendants or plaintiffs before the new party is brought on record, it will have to be deemed that the suit has been instituted on that day of impleadment so far as the newly added party is concerned. Even if the new party has been brought on record after the expiry of the period of limitation of the claim, it cannot be held that the suit is barred by limitation, for, the other parties are already on record and so far as they are concerned the cause of action was already put in motion before the expiry of limitation and that such cause of action cannot be split up so as to suit the plea "barred by limitation" on the date of impleadment."
In Messrs Khurshid Soap and Chemical Industries (Pvt.) Ltd. through Sheikh Muhammad Ilyas and others v. Federation of Pakistan through Ministry of Petroleum and Natural Resources and others (PLD 2020 Supreme Court 641), the Supreme Court of Pakistan condoned the mistake of late joining of some parties in the appeal by making the following observations:- "12.... a matter filed after the period of limitation can also be decided on merits with a connected case that was filed within time. So belated joining of some of the parties in the appeal as respondents who were initially not made party would not be of much consequence".
12. The conclusion of the aforementioned discussion is that the appellant is Ex debito justitiae entitled that his appeal should be heard on merits and he cannot be non-suited under section 22 of the Act of 1908 as initially his appeal was well within time and even if there was any bona fide mistake on his part in the joining of some respondents, it had neither affected the merits of the case nor had it caused any prejudice to the opposing party. Indubitably, the Courts prioritize substantive justice over rigid procedural compliance, ensuring that litigants are not unfairly penalized for a technical glitch.
13. In view of the above, instant appeal is allowed. Consequently, impugned orders / letters dated 15.11.2021 & 18.12.2021 are set aside with the observation that the respondent-authority shall proceed to consider the case of appellant for proforma promotion in accordance with law.