SHAFIUR RAHMAN, J.---Leave to appeal was granted under Article 212(3) of the Constitution as both the parties to the case felt dissatisfied with the judgment of the Service Tribunal which dealt with important questions relaing to powers of the competent authority to expunge adverse remarks and to make pro forma promotions thereafter.
2. The appellant in Civil Appeals 439/89 and 440/89 Mrs. Ageela Asghar Ali, a civil servant (hereinafter referred to as the appellant) entered provincial civil service as a Social Welfare Officer in 1963 through the Public Service Commission. So did the other contesting respondents/civil servants namely Khalida Khatoon Malik and Muhammad Mushtaq. The appellant was assigned seniority over these other two by the Public Service Commission as Social Welfare Officer. However, during the course of service, Muhammad Mushtaq got promoted in 1966 as Field Officer while Khalida Khatoon Malik got promoted to the same post in 1967 while Ageela Asghar Ali got promoted to the comparable post of Research Officer in 1969. In 1970, all three of them got promotion to the post of Assistant Director. For the post of Deputy Director in BPS-18, Ageela Asghar Ali was superseded and Khalida Khatoon Malik and Muhammad Mushtaq were promoted in 1976.
The supersession of the appellant was mainly on account of numerous adverse confidential reports earned by her and also because of her involvement in an anti-corruption case in which she was convicted by the trial Court but acquitted by the High Court. On the 24th August, 1987, a notification issued to the following effect:-- "The Governor of the Punjab is pleased to grant pro forma promotion to Mrs. Aqueela Asghar Ali, Deputy Director, Social Welfare (BPS-18) in the same rank w,e,f, 4-10-1976, the date from which her next junior Miss Khalida Khatoon Malik was promoted. She is assigned seniority as Deputy Director, Social Welfare over and above the name of Miss Khalida Khatoon Malik." by the two respondents who were seriously affected by it namely, Khalida Khatoon Malik and Muhammad Mushtaq. The first objection taken to the competence of the appeal was that it related to the fitness of the appellant civil servant for promotion over which the Tribunal had no jurisdiction in view of section 4(1)(b) of the Service Tribunals Act. The Tribunal rejected this objection holding that it was not a case of fitness but of the applicability or inapplicability of the rules relating to expunction of adverse remarks in the Annual Confidential Reports and the pro forma promotion in consequence of it. It did not directly or indirectly involve the question of fitness.
4. On the question whether second, subsequent or repeated representations against recording of adverse remarks could be made to the competent authority, the Tribunal was unanimously of the opinion that in view of the language used in the instructions, there was no right to make subsequent representations after the rejection of the first one claiming expunction, nor could the Secretary, the competent authority, entertain such representation or expunge the remarks. It also held that there was no power possessed by the Secretary to review the previous rejection of the representation requesting for expunction of these remarks. The Tribunal also found that the order "does not disclose the reasons or causes for entertaining the second representation for expunction of adverse remarks or for reviewing the earlier order whereby the respondents' representation was rejected". The Tribunal further held as hereunder:-- "We may observe here that the original file expunging the adverse remarks by the Secretary LS&SW Department has not been produced before us. The same has been withheld by the Department on the ground that the same was not traceable. As the original file has been withheld by the Department the possibility cannot be ruled out that the then Secretary LS&SW Department might have not passed the order expunging the remarks in the absence of such file, it cannot be looked into as what were the compelling circumstances under which the Secretary LG&S Department had to expunge the remarks when the representation to that effect has already been rejected by his predecessor. The withholding of the file also gives adverse presumption against the respondent as the Department appears to be all help for Mrs. Aquila Asghar Ali. The Department has produced before us the file containing the copies' of several documents attested by the Under Secretary (Estt.), Government of the Punjab, SW & Zakat Department. The above-referred letter issued by the Section Officer "for Secretary" is also not free from doubt. It refers the representation of Mrs. Aquila Asghar Ali whereas it is manifested from the record that Mrs. Aquila Asghar Ali made second representation for adverse remarks in the year 1977. The file containing attested copies produced by the Department has been retained as a part of the file of appeal of Miss Khalida Khatoon Malik which shall be returned after disposal of the appeal by the Honourable Supreme Court of Pakistan, if any."
5. Finally, the Tribunal held that as the adverse remarks were not expunged in their entirety but were expunged only partially, pro forma promotion case was not made out. Hence, the expunction of the remarks and the order of pro forma promotion of the appellant/civil servant was declared to be without lawful authority and set aside.
6. This has aggrieved the beneficiary civil servant as well as the Government of Punjab whose powers to expunge the remarks, whose power to deal with the civil servants as it considers most fair and equitable and whose power to order pro forma promotion from the past date, all are involved and put under cloud. Clarification on these aspects of the case is sought.
7. The first objection of the Government of the Punjab in its two appeals is that the respondent had no vested right of seniority as contained in the very first ground of its parawise comments submitted before the Tribunal. On this assumption, it is contended that the competent authority namely, the Governor of the Punjab could competently alter the seniority of the civil servants for reasons appearing on the record and in order to deal fairly and equitably with the civil servants.
This having been done by the Governor of the Punjab with competence and within the purview of his power, the respondent could not claim a right to upset the seniority so settled or to successfully impugn the order of the Governor.
8. This question of seniority being a vested right and hence amenable to alteration by the competent authority from time to time was examined in depth by this Court and a considered decision was given in Muhammad Iqbal Khokhar and 3 others v. The Government of the Punjab through the Secretary to Government of the Punjab, Lahore and 2 others PLD 1991 SC 35, following the earlier decisions of this Court in Bashir Ahmad Khan v. Mahmud Ali Khan Chowdhury and 3 others PLD 1960 SC 195, Pakistan through the Secretary, Ministry of Finance, Rawalpindi v. A.P.
Hassumani and A.R. Malik PLD 1962 SC 409 and Khushi Muhammad and three others v. The General Manager (now Vice-Chairman), Pakistan Western Railways, Headquarters Office, Lahore and 27 others PLD 1970 SC 203. Section 8 of the Punjab Civil Servants Act was interpreted in the light of these decisions to draw the conclusion and lay down the law that unlike the other provinces and the Federation, in the Punjab seniority continued to be a vested right of the civil servants. On that view of the matter, there has to be a clear law justifying an order which interferes with the seniority settled according to law.
9. The next legal ground urged by the appellants, particularly Mr. S.M. Zafar, Senior Advocate is that the question of pro forma promotion necessarily involves the question of fitness of the civil servants to be promoted and hence stands excluded from the jurisdiction of the Service Tribunal. This argument is correct to the extent that cases of promotion do ordinarily involve the question of fitness as well. To say that they involved only the question of fitness and nothing else would be limiting the scope of promotion. There are three things to be seen while considering a case of promotion.
First is the rule of promotion. Is it of selection or of seniority-cum-fitness or of seniority alone?
' The second is where the promotion is to take place by seniority-cumfitness, as in the case before us, the question would necessarily be assignment of the correct seniority and proceeding to determine the entitlement of promotion on its basis.
' The third question necessarily would be of fitness for promotion.
10. The first two questions namely, the principle of promotion and the assignment of proper seniority for consideration for promotion are matters which do not stand excluded from the jurisdiction of the Service Tribunal because they do not involve the question of fitness which has been expressly reserved for the departmental authority and outside the jurisdiction of the Tribunal.
The first two questions relate to law and its application to the civil servants awaiting promotion.
11. In the case of pro forma promotion, the question is entirely different. Pro forma promotions are of two kinds. One has been taken care of by instructions appearing at pages 208 to 211 of ESTACODE (1989 edition). That type of pro forma promotion is not involved in the present case. The other specie of pro forma promotion is the one regulated by instructions more particularly by those dated 16th of October, 1973 which issued after the decision of the Supreme Court holding that pro forma promotion from a date in retrospect entitles the civil servant to claim pay for the period that he was improperly denied his legal right of promotion. The relevant portions of these instructions are reproduced hereunder in order to emphasis the legal aspect of such a promotion and h6w far such a promotion can be allowed to interfere with the vested right of seniority of others adversely affected by it:- "When an official is notionally promoted from an earlier date, there is an implied admission that he was improperly deprived of his promotion on the due date. The claims for arrears of salary should, therefore, be accepted in such cases. As regards the second issue, since in view of the Supreme Court's ruling that arrears of salary must be given even for the period of pro forma promotion, it will have to be ensured that pro forma promotion is given only in cases where it is justified on compulsive grounds as illustrated in the subsequent paragraph... ... ... ...As regards expunction of adverse remarks item (iii), instructions have already been issued, vide this department's circular letter No,SOR III (S&GAD)14-2/72, dated the 9th June, 1973 that only one representation will lie and the decision taken on it would be absolutely final. The representation has to be submitted not later than one month from the date of communication of adverse remarks. Pro forma promotion should be given only if the supersession of the official was based entirely on the adverse remarks which were later on found to be unmerited and therefore, expunged. If there are any other factors going against the official or the adverse remarks were only partially expunged, pro forma promotion should not be granted.
' It may also be added that promotion is not a legal right and, therefore, claims for pro forma promotion are not enforceable through Courts of law, but once pro forma promotion is granted it will not be possible to withhold the arrears of salary. Special care should, therefore, be exercised at the time of ordering pro forma promotion.
' I am to request that these instructions may kindly be brought to the notice of all concerned under your administrative control for strict compliance."
12. As in the present case the pro forma promotion of the appellant/civil servant was questioned, it had to be shown that the situation was compulsive for the Government and that the appellant had a legal right to be so promoted. In the context of these instructions, the pro forma promotion is not so much a question of fitness as of having been illegally deprived of a right possessed by the civil servant. This question was certainly open to examination by the Service Tribunal and its jurisdiction was not ousted by section 4 of the Service Tribunals Act, fitness being not one of the considerations therein.
13. The third submission of the appellants is that though the right of the civil servant to represent against the adverse remarks and to obtain its expunction is limited to one such representation, the power of the competent authority to deal with the subsequent representation is not thereby limited, curtailed or made coextensive.
This argument of the appellants is legally sound. According to the instructions relied upon by the Service Tribunal the right claimable by an affected civil servant is confined to making one representation against the adverse remarks. However, there is nothing either in this principle or in any other principle that where a right of a party is limited, the power of the executive or the competent authority gets limited thereby and the right of the party and power of the executive authority become coextensive. Survey of the law laid down by this Court would negate the conclusion as was drawn by the Service Tribunal. In Sahibrai v. The Custodian of Evacuee Property South Zone, West Pakistan, Karachi PLD 1957 SC 63 at page 71 it was held "as for the observation regarding finality, that is a principle which is applicable in full force only to matters decided in Courts of law". It was thereby implied that the executive power can be exercised any time to correct a mistake, to review an order, or to pass a more appropriate order subject to vested right of others.
14. The next question which has been the subject-matter of serious debate is whether the expunction of the remarks had taken place in accordance with law, within the competence of the executive authority and by the competent person.
In the first place what is to be noted is that the application on which the remarks were expunged was addressed by the appellant/civil servant to the Chief Minister. The Chief Minister does not appear to be a departmental authority for the purposes of entertaining an appeal or representation against the refusal to expunge a remark or to deal with the delays in disposal of such representation. It was a political appeal made by the civil servant. We fmd that all the contesting civil servants in this case had been recklessly approaching the Chief Minister for the redress of their grievances. This is to be deprecated. It erodes the discipline in service. It makes the examination of the merits of the case influenced, partial and tainted. With such a political appeal by the appellant/civil servant in the background, it was incumbent upon the Government of the Punjab to show that the decision of the competent authority was not abridged, tainted or influenced by such outside command. What we find on the record is the following' official document reproduced in extenso, which is pleaded as a complete answer for establishing the correctness and verity of the Government record:-- "GOVERNMENT OF THE PUNJAB LOCAL GOVERNMENT, SOCIAL WELFARE AND RURAL DEVELOPMENT DEPARTMENT.
To ' Mrs. Aqeela Ashgar Ali, Superintendent, Mothers and Children Home, Lahore.
' Memo No,SOV/SW/II. k.39/73, dated Lahore, the 11th July, 1977. Subject: EXPUNCTION OF ADVERSE REMARKS.
' With reference to the above-noted subject, kindly refer to your representation dated 22-1-1974.
' It is to inform that adverse entries contained in the A.C.Rs, for the period 1972/73 have been expunged.
(Sd.)
(JAVED DASTGIR MIRZA)
Section Officer V. for Secretary.
' Endst. No,Even. Dated 11/12-7-1977.
' Copy is forwarded for information to the Director Social Welfare, Punjab, with reference to letter No,SE(E)ACR/74/682, dated 24-1-1974.
(Sd.)
(JAVED DASTGIR MIRZA)
Section Officer ' It is a letter by a Section Officer signed for the Secretary. It does not speak of as to which authority has dealt with the matter and in what circumstances it has dealt with it. In order to lend strength and presumption and to give effect to this letter, the Service Tribunal asked for the documents leading to the issuance of this letter. The Government dealt with the matter in a manner which was bound to arouse serious suspicion about its legal sanctity. The appellant/civil servant has described what happened before the Tribunal in respect of this letter in her application appended to the memorandum of appeal, as hereunder:-- "After the close of the arguments, the Tribunal asked the concerned Departments of the Government of the Punjab to hand over the original files containing--
(a) proceedings of the pro forma promotion committee in respect of the petitioner herein.
(b) proceedings of the provincial Selection Board in respect of the petitioner herein and respondent No,1, held on 4-10-1976.
(c) representation of the petitioner herein against A.C.Rs, for the years 1972 and 1973.
(d) orders passed in 1977 accepting the representations mentioned at (c) above.
' It was directed that the original file should be produced on 24-4-1988. The Deputy Secretary concerned apprised the Registrar of the Tribunal that the record being of confidential nature could be shown to the Chairman and Members of the Tribunal but it could not be produced in Court. In the meantime, the relevant files in the Local Government and Social Welfare Department were reportedly misplaced. It was in these circumstances that the said Department apprised the Tribunal that the record was not traceable and efforts were being made to trace out the same."
15. The correspondence that took place and which bears out this is the order of the Tribunal dated 18-4-1988 which is as hereunder:-- "Arguments heard. We would like to have the proceedings of the Pro forma Promotion Committee in respect of respondent No,2, as well as the proceedings of Provincial Selection Board in respect of respondent No,2 and the appellant held on 4-10-1976. This record is with the SGA&ID, therefore, we direct the concerned Dy. Secretary to produce these files on or before 24-4-1988. The files should be delivered to the Registrar. Mr. Qasir Saleem, Under-Secretary, Social Welfare & Zakat Deptt. To hand over the files of Respondent No,2's representations against A.C.R. For the years 1972, 1973 and also file accepting these representations of 1977. The appeal to come up for orders on 16-5-1988."
16. The reply to it dated 24th April, 1988 on behalf of the Chief Secretary Punjab to the Registrar, Punjab Service Tribunal was as hereunder:-- "I am directed to refer to your communication bearing No,PST/ REGISTRAR/88/6708; dated 23rd April, 1988 on the subject noted above and to request you to kindly fix some other date for the production of the required proceedings/minutes as your directions/orders have been received late today.
' It is however, pointed out that the proceedings of the Pro forma Promotion Committee as well as the proceedings of the Provincial Selection Board cannot be produced in the Court, but can be shown to the Chairman of the Punjab. Service Tribunal as and when desired, as these are secret/privileged documents."
' A telephonic conversation took place and the substance of it is recorded on the same letter of the Chief Secretary dated 24th April, 1988, as hereunder:-- "I rang up the D.S. Concerned Mr. Sajid Akhtar today. He informed me that the record required is of secret nature, therefore, it should not be placed before the Court. However, it can be seen by the learned Chairman for his personal consumption. However, it was agreed that the record will be sent to the Registrar in cover.
' Please resubmit on 28/4.
(Sd.) Registrar 27/4 ' Mr. Sajid, D.S. Reminded once again today to expedite. For purposes of record.
(Sd.) Registrar 4/5."
' On 21st April, 1988, the following letter was addressed by the Under-Secretary, to the Registrar Punjab Service Tribunal:-- "The case was heard by the Chairman, Punjab Service Tribunal on 184-1988 and he desired that a complete record in which the adverse remarks of A.C.R. Of Mrs. Ageela Asghar All for the year 1972- 73 were expunged may be referred to them on or before 24-4-1988. I am directed to inform you that this Department is in search of the said old record but the same has not been traced out so far because this Department at that time was a part of Local Government. It will be forwarded to you on 24-4-1988 if traced, and if not then the position will be clarified within a week."
' The fact remains that the record remained untraced and was not produced before the Tribunal.
17. The amplitude of the jurisdiction of the Service Tribunal in dealing with the service appeals has been outlined by this Court in M. Yamin Qureshi v. Islamic Republic of Pakistan and another (PLD 1980 SC 22). The duty of the Government as the repository of the record, as a departmental authority to deal with the civil servants and as an impartial arbiter has been outlined by this Court in another decision given in Muhammad Umar Malik and others v. Federal Service Tribunal and others (PLD 1987 SC 172) in the following words:-- "The amplitude of the power enjoyed by the Service Tribunal as indicated by this Court in M. Yamin Qureshi's case (PLD 1)80 SC 22) demands that all the material taken into consideration by the departmental authorities should ordinarily be made available to the Tribunal instead of leaving it to wade through Manual of Instructions and memoranda issued from time to time to which neither the Tribunal nor the parties or their lawyers have ready access and the assistance rendered at the bar in such cases is less than adequate."
18. The demands made of the Courts and the Appellate Tribunals by this Court in the Chairman, East Pakistan Railway Board, Chittagong art another v. Abdul Majid Sardar, Ticket Collector, Pakistan Eastern Railwa. Laksam (PLD 1966 SC 725) also enjoins that a thorough scrutiny should be made of all the records kept for showing the proper exercise of the power. It was laid down "that acts performed and orders made by public authorities deserve due regard. By Courts and every possible explanation for their validity should be explored and the whole field of powers in pursuance to which the public authorities act or perform their functions examined and only then if it is found that the act done, order made or proceeding undertaken is without lawful authority should the Courts declare them to be of no legal effect."
19. A similar observation was made in Lahore Improvement Trust, Lahore through its Chairman v.
The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others (PLD 1971 SC 811) where after examining the law laid down as quoted above in the case of Chairman, East Pakistan Railway Board (PLD 1966 SC 725), the following observations were made:-- "To satisfy the requirement of this rule it is the duty of the Court to examine the entire record pertaining to the action taken, order passed and proceedings undertaken which are challenged as without lawful authority under Article 98 of the Constitution. Otherwise grave miscarriage of justice may take place in the exercise of this beneficial jurisdiction."
20. The appellant's contention is that the Government was unable to produce the record and she/the civil servant should not suffer for it. Outside the context of this case, her contention may be correct. By making appeal to the political authority instead of the departmental authority, by trying to exercise extraneous influence over the competent authority, the appellant herself diverted the proceedings and exposed herself to departmental action, which is rare on such conduct now. The absence of record cannot, in these circumstances and background be pleaded for her benefit but would definitely go against her. The Government was obliged to produce the record but we do not agree with the view of the Government that Secretariat record, ten years old, is so old as to be not readily traceable. As such record deals with the rights of the civil servants whose disputes lingers within the department and then in the Tribunal and Courts, it is imperative that such records be preserved, protected and produced when required.
21. The letter expunging the remarks quoted above in extenso is neither in form sufficient, nor does it mention who has expunged the remarks and under whose orders and in what circumstances it was done. The record which could show it has been withheld. Even the effort made at our level has failed and the correspondence has been placed on record.
21. In another case recently decided (case of Muhammad Iqbal Khokhar and 3 others (
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