' S. ABDUL JABBAR KHAN (CHAIRMAN). - Rauf Ahmad, Director (Works), Office of the Chief Engineer (Buildings), Lahore, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded Secretary to Government of the Punjab, Communication and Works Department, Lahore, Mr. Inam Bari Pervaiz, Superintending Engineer (since retired) Nespak, Lahore, Mr. N. U. Asmi, Superintending Engineer now Chief Engneer Lahore Municipal Corporation Lahore, Mr. M. S. Gillani, Superintending Engineering now Technical Adviser, Office of the Secretary to Government of the Punjab, Housing and Physical Planning Department, Lahore, Mr. Muhammad Iqbal Qureshi, Superintending Engineer; Highways Circle, Sargodha and Mr. Ali Abid Hussain, Superintending Engineer, now Director, Building Research Station, Lahore, as respondents.
2. By virtue of this appeal he has prayed that seniority list dated 10th September, 1981, be set aside in so far as it relegates the appellant to junior position to the contesting respondents Nos, 3 to 6 and respondent No, 1 be directed to award pro forma promotion to the appellant as Superintending Engineer from 10th August, 1964 the date his juniors were promoted as such.
3. Brief fact of the case are that the appellant joined service on 19th March, 1949 as Temporary Assistant Engineer, whereas the contesting respondents Nos, 3, 4 and 6 are earlier in appointment as T.A.E., except respondent No, 5 Mr. Muhammad Iqbal Qureshi, who joined as T.A.E. Later than appellant. Respondent No, 1 issued seniority list, dated 23rd December, 1967, Annexure 'A', pertaining to the officiating Executive Engineers in which the Appellant was shown at serial No, 22 whereas Respondent No, 2 was shown at Serial No, 25 and respondent No, 5 at Serial No, 27 (junior to appellant) respondents Nos, 3, 4 and 6 were not shown in this list as they belonged to E and M Branch. However, appellant's seniority as XEN or in Class I or Class 11 was not controverted before us by the respondents. Though the appellant was due for promotion as Superintending Engineer in the year 1964, but due to unfortunate incident the appellant stood involved in a criminal case F I R No, 10 dated 17th January, 1960, in Sheikhupura. In this manner the appellant was ignored when his case considered alongwith respondent No, 2, by virtue of above conviction in the aforesaid case by the Special Judge AntiCorruption. In the year 1965, certain batch of XENs was considered for promotion for the post of Superintending Engineer but the name of the appellant was not considered due to the pendency of the said criminal case so registered against him. In the year 1968, when the case of the appellant wss considered alongwith respondents 3, 4 and 5 for the post of Superintending Engineer, departmental enquiry on certain points relating to the above- mentioned criminal case was pending. His case was deferred by the Selection Board on the recommendations of the Department of this effect, whereas respondents Nos, 3, 4 and 5 were approved for promotion. In the year 1969 the case of the appellant once again, came for consideration alongwith respondent No, 6, for promotion to the rank of Superintending Engineer but as he had not yet been exonerated in the aforesaid Departmental enquiry which was in fact, instituted in consequence of the judgment of the High Court in which the appellant had been acquitted but the department was directed to look into the matter at its own level. The perusal of the record shows that another enquiry regarding dereliction of duties was also pending against the appellant when his case was considered by Selection Board but this enquiry had also been concluded in his favour vide order, dated 20th November, 1969. In view of the above, once again the appellant could not achieve his promotion. Ultimately it was in the year 1974, when the aforesaid enquiries were concluded in his favour, the appellant was promoted to the rank of Superintending Engineer. His promotion was given effect from 1st January, 1974. After his promotion the appellant agitated before the Government that as he had been fully exonerated both in the criminal case by the High Court and in the Departmental enquiries so conducted against him, therefore, he was entitled to be considered to have been promoted from 10th August, 1964, the date his next junior was promoted. However while his representation was still pending final seniority list was published by the Department on 10th September, 1981, in which appellant was placed junior to respondent Nos, 3 to 6 on the basis of his promotion as Superintending Engineer which was shown as 1st January, 1974. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as learned counsel for the respondents and learned District Attorney and have perused the record of this case carefully with their assistance.
5. Learned counsel for the appellant has submitted that the seniority of the appellant both in Class Ii and Class I (Jr.) and as XEN is undisputed vis-a-vis the respondents in this case. Therefore, after he had been fully exonerated from all the charges in criminal case as well as departmental enquiries so levelled against, him, vide letter of the Government of the Punjab, dated 20th November, 1969, the final position which emerges is that he was, both according to law settled in this respect as well as Government's own policy, from all angles an innocent person, falsely involved and thus entitled to claim his right of seniority vis-a-vis respondents from 10th August, 1964, the date his junior was so promoted.
6. On the other hand learned counsel for the respondents has submitted that though the appellant was senior but he was throughout considered and superseded right from 1964 to 7th October, 1969, vis-a-vis the respondents although at different stages, therefore, he cannot claim seniority over them, in any manner whatsoever. For this learned counsel has relied on the observations so made against the appellant in 1964, 1968 and 1969. We have come to a positive conclusion that these observations were made because of the fact that the appellant stood convicted in 1964 and the criminal case was still sub judice before the appellate Court and he could not be promoted in 1968 and 1969, because the departmental enquiries were still under process against him. It is a well- settled principle of law that if a person is not considered fit for promotion because of certain eventualities like a criminal case or departmental enquiry or adverse remarks and if he is acquitted, exonerated and the adverse entries are expunged, he would be treated as if he has never been convicted or held guilty or recipient of such adverse entries and he would be considered to be a civil servant with unblemished record of service. Reliance is placed on Government policy as contained in letters No, S.C./D 5-16/62, dated 7th September, 1962 and No, SO-IV (S & GAD) 1-75/67 (Policy) dated 18th January, 1968, and law laid down by the Supreme Court of Pakistan in 1981 SCM R 501. S. A. Rashad v. Government etc., Muhammad Abdul Hayee v.
Government of Punjab in Appeal No, 104/72 of 1973, dated 19th September, 1973 of this Tribunal.
Relevant para. Of Government letter, dated 18th January, 1968, is reproduced below :- "If a Government servant who is not promoted on account of enquiry against him but subsequently exonerated, it should be ensured that the holding of enquiry should not work against him. The question regarding possibility of pro forma promotion would be examined by the appointing authority and he should be allowed his original seniority. It is necessary to set out in the promotion order that the promotion of Junior officer is temporary and the senior officer has been ignored on account of serious charges against him in a departmental enquiry."
' Under the instructions so referred to above, it has been ruled by the Government itself that in case a civil servant is involved in a criminal' case or in departmental enquiry and he is subsequently exonerated or found not guilty then he is entitled to promotion. It was on the basis of the policy of the Government, the former Punjab Civil Services (Appellate) Tribunal granted seniority to Muhammad Abdul Hayee, XEN of the same Department when he was not found guilty for the charges which once, stood in his way, when his juniors were so promoted. Similar view was taken by this Tribunal in S. A. Rashid case who was also restored his original seniority on the favourable conclusion of departmental enquiry. This equitable view taken by this Tribunal as well as predecessor Tribunal and based on the policy of the Government itself has been given full support by the latest pronouncement by the Supreme Court of Pakistan, the highest Court of the realm, in the case Abdul Qadir Hayee, S. P. Who fell foul from the favour of late Prime Minister Z. A. Bhutto, on the ground that he was found smiling in a meeting when the said late Prime Minister was making a speech. Mr. Abdul Qadir Hayee was suspended forthwith and was removed from Policy Unified Group (PUG). However, the present regime rectified this grave injuries to the said civil servant and re-instated him in service. In the meanwhile his juniors were promoted as D.I.G.s. He made representation which did not succeed. The said civil servant went before the Federal Service Tribunal claiming promotion from the date his juniors were promoted and succeeded in securing the same. 1 he Government did not accept the decision of the Federal Service Tribunal and went in appeal before the Supreme Court of Pakistan praying that the said decision be set aside. The Supreme Court of Pakistan upheld the judgment of the Federal Service Tribunal and the said civil servant was promoted from the date his juniors were so promoted.
7. We have carefully attended to the arguments of the learned counsel for the respondents wherein he has laid lot of stress on the use of certain words like 'unfit for promotion', 'ignored' etc. Placed on the record while not promoting the appellant in 1964, 1968 and 1969. We have no hesitation to repel this contention for the obvious reason, as all these observations were the result of background of the said criminal case which affected the minds of those who sat together to consider the case of the appellant vis-a-vis the case of the respondents at different stages of his career. We are of the considered opinion that if the said criminal case would have not been in the way of the appellant, he was entitled for promotion in 1964. Similarly if the Departmental enquiry which was initiated after the delivery of the judgment by the High Court in 1965, would not have remained protracted for full1 5 years by the Department itself, the promotion falling in the way of the appellant during the said period, would come as a matter of right. What we find from the record is that after sitting for full five years over this enquiry, the Department ultimately came to the conclusion that the appellant was not to be blamed for any charges so levelled against him. If this had to be concluded, it could be concluded much earlier and thus would have saved lot of anguish and mental agony of the appellant who was deprived of his promotion for a matter which ended ultimately in his exoneration. It would be pertinent to point out that this lethargic attitude of the Department only came to an end, when there was a positive directive by the Governor to conclude the matter within two months. In view of the above circumstances, we do not agree with the learned counsel for the respondents that appellant was superseded by the officers by virtue of his chequered record or faulty performance of his duties in service.
8. It is a matter of common knowledge that many a time a righteous person becomes subject- matter of wild and false allegations and is subjected to enquiry and even trials. It is only the result of the trial and not the pendency of proceedings against a person so involved should count, as held by my lord the then Chief Justice of Pakistan, Mr. Justice A. R. Cornelius, in case of Amir Hussain .
9. In view of the above analysis of the entire history of the case and the law laid down, we are of the considered opinion that the case of the appellant is liable to succeed, we, therefore, proceed to accept the appeal, set aside the impugned seniority list in so far as it relates to the parties before us and direct the respondent No, 1 to make amends by restoring to the appellant his due promotion as Superintending Engineer from the date his next junior was promoted in the year 1964. The appellant is declared senior to respondents Nos, 3 to 6 as Superintending Engineer (respondent No, 2 has since retired). However, parties will bear their own costs. To be conveyed to the parties. 1981 PLC (C. S.) 615 PLD 1983 SC 185