MUHAMMAD IRSHAD KHAN (MEMBER).--The relevant background giving rise to the present appeal, briefly speaking, is that the appellant while employed as Instructor in the Military College of Engineering, Risalpur, went on 15 days rest and recreation leave with effect from 22-2-1973 to 8-3- 1973. A letter dated 9-3-1973 from the appellant was received on 12-3-1973 by the Commandant, Military College of Engineering, Risalpur, wherein he requested for proper sick report for treatment in the Combined Military Hospital, Lahore, as he had fallen sick and as such was unable to report back for duty on 9-3-1973. Accordingly the Commandant, Military College of Engineering, vide his letter dated 14-3-1973 requested Combined Military Hospital, Lahore, to provide medical treatment to the appellant. The appellant was also advised vide the Commandant, Military College of Engineering's letter dated 6-3-1973 to report to the Combined Military Hospital, Lahore, for treatment but he did not do so despite reminders issued to him. Ultimately he resumed his duties on 30-4-1973 and explaining that he was not in a position to report to the Combined Military Hospital, Lahore, submitted a medical certificate from a private practitioner. The relevant departmental authorities, however, were not satisfied with the explanation of the appellant and he was charge-sheeted for the allegation of getting treatment from a private practitioner instead of reporting to the Combined Military Hospital, Lahore, and thus violating the directive of the Commandant, Military College of Engineering. Subsequently a charge of overstaying for 52 days after expiry of granted leave, was also added.
It was for this charge that the appellant was removed from service by order dated 8-6-1974. His departmental appeal having been turned down, he approached this Tribunal by way of Appeal No. 704(L) of 1974. However, before the said appeal could be heard by this tribunal, a letter from the respondent-Department was received in the Office of the Tribunal that on reconsideration, the departmental appellate authority had re-instated the appellant. Thus, the appeal before this Tribunal had become infructuous. Nevertheless the appellant was again charge-sheeted for the same charges and was awarded a penalty of stoppage of two increments and the period of 52 days absence was treated as leave on half average pay. On an appeal being No.64(R) of 1979 this Tribunal finding that not only the appellant remained under suspension for over two years unjustifiably and illegally but had also been vexed thrice for the charges which could not be established, set aside the penalty and exonerated him.
2. In the meantime the appropriate Promotion Committee considered the cases of eligible candidates for promotion to the post of Sub-Engineer. The appellant was left out and was superseded by his juniors but was ultimately promoted as Sub-Engineer on 8-10-1980. Thereon, the appellant represented from ante-dating his promotion with effect from 15-1-1976. In reply thereto he was informed that his request would be considered after the decision of his appeal by the Service Tribunal. After the decision of the Service Tribunal, however, the respondent-Department vide its letter, dated 21-6-1984, finally refused to accede to the appellant's claim.
3. The learned counsel for the respondent-Department has taken a stand that the appellant is not entitled to the relief sought for by him because he was considered for promotion by the Departmental Promotion Committee in 1975,1976 and 1977 but each time was found unfit. The learned counsel also emphasized that the present appeal is not maintainable being basically against the determination of fitness for promotion by the Departmental Promotion Committee. To ascertain the correct position we insisted that the minutes and proceedings of the Departmental Promotion Committee should be shown to us but the respondents failed to do so. Instead photo copies of some unauthentic charts said to have been prepared by the Departmental Promotion Committee, were produced which, according to the learned counsel, indicate that the appellant was declared unfit for promotion by the said Committee. We are afraid, we cannot agree with the learned counsel. For, in the remarks columns of the said charts though the appellant is shown to be unfit, it is also mentioned that he was under suspension and involved in a disciplinary case, while, the reasons for being unfit are totally missing. Apart from this, the charts are unauthentic and unsigned. No reliance can, therefore, be placed on these charts. On the other hand, there is a categorical mention in the Respondent --Department's letter dated 22-12-1976 (Annexure-A to the memo. Of Appeal) that the appellant was not approved by the appropriate Promotion Committee for promotion to Sub-Engineer due to his involvement in a disciplinary case and being under suspension. We are, therefore, clear, in our mind, that the appellant was never adjudged unfit for promotion but he had been superseded only for the reason that he was being proceeded against departmentally and was under suspension. As, however, held by this Tribunal in Appeal No. 64(R) of 1979, neither the suspension of the appellant was justified nor he was guilty of the charges levelled against him. Quite obviously, the appellant could not` be declared unfit merely on this ground unless his fitness for promotion was otherwise properly adjudged which was not done and we, therefore. Hold that he was wrongly omitted from consideration and thereby was superseded.
According to the rule, an officer eligible for promotion who is inadvertently omitted from consideration in the original reference and is superseded, when he is subsequently considered and approved for promotion, he will take his seniority with the original batch. In our view, the case of the appellant is covered by this rule and he is entitled to the benefit thereof. The position being so, the objection oil the learned counsel for the Respondent-Department about the jurisdiction of the Tribunal in the matter of fitness for promotion also loses force simply because the appellant was superseded without his fitness for promotion having been properly adjudged.
4. For the foregoing reasons, we accept the appeal and direct that the appellant shall be allowed seniority with consequential benefits, to the post of Sub-Engineer with the batch which was considered and cleared in 1976.
5. No order as to costs.
M.Y.H./365/Lb/S