' S. ABDUL JABBAR KHAN (CHAIRMAN).--Muhammad Bakhsh, Addl. Deputy Commissioner (Consolidation), Attock, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Government of the Punjab through Additional Chief Secretary, Government of the Punjab, Lahore and Messrs Manzoor Hussain and 157 others, as respondents as per Annexure 'A'.
2. By virtue of this appeal he has prayed that the (1) appeal be accepted with costs; (2) impugned order, dated 18-1-1984 in so far as it denies pro forma promotion to appellant from due date be set aside; (3) respondent No, 1 be directed to award pro forma promotion or to consider appellant for award of pro forma promotion to Grade-18 as A.D.C./A.G. i,e, the date from which his next junior was so promoted as such; (4) he be declared senior to all the contesting respondents as he was never superseded by any of them.
3. Brief facts of the case are that the appellant joined former P.C.S. (Executive Branch) on 27-3-1963, on the basis of competitive examination held by the then West Pakistan Public Service Commission and was confirmed as such w,e,f, 3-6-1970. In 1969, on the complaint of one Fateh Khan resident of Gunjian Tehsil Khushab, District Sargodha, an enquiry was taken up against the appellant which ended into his retirement from service under section 12 (ii) of the Punjab Civil Servants Act, 1974, vide notification, dated 29-5-1975. However this notification was rescinded by notification, dated 25-4-1978 and by further notification, dated 2-10-1978, the period from 1-6-1975 to 24-4-1978 was treated having been spent on duty. The appellant although re-instated in service was not considered for promotion to Grade-18 alongwith his juniors respondents No,2 to 159. To the misfortune of the appellant, another enquiry so conducted against him resulted into compulsory retirement from service vide order, dated 18-3-1979. He ultimately came before this Tribunal against the said order of the Respondents and the Tribunal was pleased to set aside the retirement and re-instated him in service with all back benefits. The Government accepted the said judgment by notification, dated 29-8-1981, and did not file appeal before the Supreme Court of Pakistan. The judgment was implemented and the Governor of the Punjab was pleased to rescind the earlier notification, dated 18-3-1979, whereby the appellant had been retired under section 12 (ii) of the Punjab Civil Servants Act, 1974, and the appellant was allowed pay and allowances for the period he remained out of service. The appellant has now been promoted vide notification, dated 18-1- 1984, to B.P.S.-18 w,e,f, the date of taking over. The seniority list of A.D.Cs./A.Cs. In Punjab corrected upto 31-12-1982, had been issued in two parts. In the first part A.D.Cs./ A.Cs. In Grade-18 were separately shown whereas in the second part A.E.Cs. In Grade-17 were separately shown. The contesting respondents have been shown in the first part whereas the appellant has been shown in the second part. According to the appellant as he has not been considered alongwith juniors and superseded, he was entitled to the seniority over the contesting respondents. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance.
5. Learned counsel for the appellant has submitted that although the case of the appellant was deferred but ultimately he was exonerated from the charges therefore, he was entitled to be given his due place of seniority from the due date. For this he has placed reliance on appeal No,512/1501 of 1981 Rauf Ahmad v. Secretary, Communication and Works Department, Lahore, decided by this Tribunal. It has been submitted that respondent No,1 issued a seniority list corrected upto 31-12- 1982, and in the said list the appellant was shown senior to all the contesting respondents. He has laid lot of stress that respondents Nos, 2 to 150 were the officers who were basically junior to appellant in Grade-17 but they were promoted to Grade-18 from 7-11-1975 or later dates, while the appellant stood illegally retired from service in the circumstances narrated above. It has been vehemently argued that the appellant was not considered and there was no question of supersession of the appellant by his juniors.
6. On the other hand learned District Attorney has raised preliminary objection while adopting the comments of the Department submitted before this Tribunal by the Deputy Secretary (A) on behalf of respondents by submitting that as the appellant has not moved the Government for pro forma promotion after issuance of the order, therefore, he was barred from moving this Tribunal under section 4 of the Punjab Service Tribunals Act, 1974.
7. With regard to the merits of the case it has been submitted that in response to his applications, dated 1-9-1981, 24-8-1981 and 27-3-1982, the appellant was informed vide Memo. No,1-292 (S.O.S-II), dated 6-5-1982, as under:- "Since you were superseded for promotion due to unsatisfactory service record, you cannot therefore, be considered for promotion to higher grade retrospectively. However, your case for promotion to Grade-18 (A.C./A.D.C.) will be sent alongwith other officers to the Provincial Selection Board in due course."
' In this manner the learned District Attorney has stoutly contested the claim of the appellant that his promotion was deferred for want of information about his Character Roll as his case was a case of supersession rather a case of deferment. It was further submitted that in fact the case of the appellant was not deferred or kept in cold storage because of certain incidents of his retirement twice from service but in fact he has been superseded clearly on the ground that he has unsatisfactory record of service. Lie has also referred to the principle laid down for the grant of proforma promotion in which record of service of a civil servant is one of the most important factors. With regard to the claim of the appellant that the list of 1982 was actually against earlier list of seniority, learned District Attorney has contested that this list consisted of two portions, first portion related to E.A.Cs./A.D.Cs. And the second portion related to E.A.Cs. The appellant was in the second portion of the seniority list in the grade in which he was working. While concluding his arguments, learned District Attorney has submitted that in fact the appellant had been superseded due to unsatisfactory record and bad A.C.Rs, against him.
7. We have given our anxious thought to the arguments advanced by the parties and find from the record that the appellant had adverse entries in his A.C.Rs, pertaining to the years 1968, 1969 and 1970. These adverse entries were never expunged and contained remarks of very serious nature.
The Rules regarding grant of pro forma promotion do not allow persons with checkered record of service to claim such promotion. The record further discloses that the worthy Governor while looking into his case made certain strong observations against him and fully approved the recommendations of the Departmental Promotion Committee when they ignored the appellant for unsatisfactory record of service. The mention of memo. No,1-292(SOS.-11), dated 6-5-1982, referred to in the earlier part of our judgment, also reveals the real picture of the appellant's case for promotion. As mentioned earlier, it has been-clearly indicated that the appellant was superseded for promotion due to unsatisfactory record, therefore, his claim for pro forma promotion was not justified. It is also established on record that when the appellant earned good reports, he was duly promoted by the Governor. The refusal of retrospective promotion is based on the concept of presumption that barring the temporary hurdles such as enquiry or adverse remarks, which prove to be frivolous later on, the officer was fit for promotion on a particular date in the past. Keeping into consideration the case of the appellant vis-a-vis the principle so stated above, it cannot be said that he has been refused pro forma promotion due to certain temporary hurdles, but the hurdles in his way were permanent on account of adverse entries pertaining to the years 1968, 1969 and 1970, which remained on his record and to which the appellant did not take any exception by not representing his case to the next higher authority.
8. In view of the above we are of the considered opinion that the case of the appellant is not covered by the case of Rauf Ahmad v. Secretary C & W Department on which the appellant has placed reliance nor it is a case where the appellant has not been considered alongwith his juniors as he was duly considered and superseded and was refused pro forma promotion because he has checkered record of service.
9. The result is we do not find any merit in this appeal which is dismissed accordingly. There will be no order as to costs.