' M. SALEEM CHAUDHRY (CHAIRMAN). - Respondents Nos, 3 and 4 are not present despite due service of notice. Notice was sent to them on 25th February, 1976 by registered post for today and is presumed to have been duly served in due course of events. Let ex parte proceedings be taken against them.
2. The short point involved in this appeal is that as to whether the appellant a Sub-Inspector, Excise and Taxation was validly superseded on 29th August, 1973, when respondents Nos, 3 to 5 though junior to him, were promoted as Inspector, Excise and Taxation. The appellant was superseded due to adverse remarks resulting in penalty of censure which were set aside in appeal on 16th October, 1973 and thereafter he was also promoted on 2nd November, 1973 as Inspector. The grievance of the appellant, however, was that since the very ground for his supersession on 29th August, 1973 having since been removed he was entitled to have the fresh determination of his fitness to promotion as on 29th August, 1973, vis-a-vis respondents Nos, 3 to 5. According to the appellant, after the expunction of adverse remarks which sustained his supersession he being senior most, became eligible for promotion on 29th August, 1973 in preference to respondents Nos, 3 to 5 and there was no ground available to ignore him, more particularly when he has been adjudged fit to be so promoted on 2nd November, 1976. Reliance was placed in this behalf on the Punjab Government letter No, SOR-II (S & GAD)-2-52/73 and in particular on para. 6 of the same letter which was as under:- "Pro forma promotion should be given only if a supersession of the official is based entirely on the adverse remarks which were found to be unmerited and, therefore, expunged. If there were any other factors going against the official or the adverse remarks were partially expunged, pro forma promotion shall not be granted."
3. Mr. A. G. Humayun learned counsel for the respondent however contends that it was not merely on the ground of censure that the appellant was superseded on 29th August, 1973 but there were also other complaints against him. According to him notwithstanding the expunction of adverse remarks the appellant still stood validly superseded on 29th August, 1973 and there was scant justification to reopen the issue. The Government Pleader also argued that the appellant was in fact asking for the pro forma promotion which could not be granted to him by the Tribunal. The respondent No, 5 who was present in person adopted the arguments advanced by the Government Pleader. Reliance was placed in this regard on the text of proviso (b) to section 4 of the Punjab Service Tribunal Act, 1974 which is to the following effect :
(b) Provided that no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or held a particular post or to be promoted to a higher post or grade.
4. After going through the records of the case and hearing the parties present, we are clearly of the opinion that this appeal must succeed. In the first instance the order, dated 29th August, 1973 was grounded on the sole ground that since the appellant had suffered the censure hence he was not fit to be promoted. Again on 2nd November, 1973 at the time of his promotion, it was observed by the competent authority that he had been previously ignored due to the penalty of "censure". In view of the above fact it is difficult for us to accept the contention of the Government Pleader that the appellant had not been ignored on 29th August, 1973 on the sole ground that he had suffered a censure. We have, therefore, no hesitation in holding that the only ground on which the appellant was ignored on 29th August, 1973 was the fact of "censure" which has since been set aside by the appellant authority. The other contention of the Government Pleader is adequately answered in para. 6 of the Government instructions contained in letter No, SOR (S & GAD)-2-52/73, dated 16th October, 1973, which clearly laid down that if the representation of the civil servant against the adverse remarks succeeded he was entitled to the pro forma promotion. As such the respondents while reconsidering the case of the appellant are bound to be guided by the aforesaid instructions.
As regards the objections as to our power to interfere with the order of promotion, it is correct that we cannot appropriate upto ourselves the power to examine the merits of the determination by the departmental authority as to the fitness or otherwise of a civil servant to hold a post or to be promoted, but we do not find that the said provision in any manner precluded us from examining the fact that a valid determination had in fact been made by the departmental authority. Learned counsel for the respondent has failed to produce anything to the contrary. We, therefore, do not find any force in this contention of the Government Pleader also. We are of the view that in the changed context the appellant is entitled to have a redetermination as to his fitness for promotion on 29th August, 1973 alongwith. Respondents Nos, 3 to 5 to whom he was admittedly senior.
Consequently the appeal is accepted to this extent that the Director-General Excise and Taxation Government of the Punjab is directed to determine afresh the case of promotion of the appellant, with effect from 29th August, 1973 in the light of our observation above. The parties to bear their own costs.