JUSTICE (RTD) MUNAWAR ALI KHAN (CHAIRMAN).- The appellant, Bashir Ahmed Shah, a Superintending Engineer, has filed the present appeal to call in question the Communication and Works' Department's notification dated 7th July, 1990 whereby the respondent Ghayoor Hassan (hereinafter referred as private respondent) has been allowed the benefit of rule 13 of the Sind Civil Servants (Probation, Confirmation and Seniority) Rules 1975 (hereinafter referred as the Seniority Rules), giving him seniority over the appellant in the SES cadre.
2. The facts leading to this appeal may, briefly be summarized as follows. As Executive Engineer (BS-18) the private respondent was senior to the appellant, as he was appointed to that post as far back as December, 1969 whereas the appellant was inducted in the cadre of XEN on later date i.e. 5.3.1973, However, the appellant ws promoted as S.E. On 3.11.1980, earlier than the private respondent's promotion to the said post on 22.11.1984.. Although the Provincial Selection Board-II had cleared the private respondent for promotion in 1977, yet the notification of his promotion was deferred due to his suspension preceding the initiation of the departmental enquiry against him.
On conclusion of the said enquiry he was punished and visited with penalty of withholding of promotion for to years. Accordingly the case of his promotion was again processed and placed before the Selection Board on 20.9.1984 and after due clearance by the said Board, the private respondent was promoted to the post of S.E. On 22.11.1984. Subsequent to his promotion he was given the benefit of seniority over the appellant in the cadre of SEs vide the impugned notification.
The appellant challenged the said notification in departmental appeal filed before the Chief Secretary arid after expiry of 90 days from the said appeal, he came to this Tribunal in the present appeal.
We heard Mr. Fazl-e-Ghani in support of the appeal and Mr. Manzoor Ali Khan submitted his arguments on behalf of the private respondent. The learned State Counsel adopted the arguments of the private respondent's learned counsel. We also went through the relevant material available on record.
3. The notification impugned in this appeal shows that the private respondent who was not promoted as S.E. On his turn, subsequent to his promotion to the said rank was declared to have been promoted with effect from the date his immediate junior namely Mr. S. Mansoor Hassan was promoted as Superintending Engineer. Following the issuance of the said notification the appellant got aggrieved as he became junior to the private respondent in the cadre of S.Es. Accordingly he has sought setting aside of the impugned notification. It may be pertinent to reproduce rule 13 of the Seniority Rules, which was invoked to give the benefit of higher seniority to the private respondent as S.E. It reads as under:- "A civil servant, who is not promoted on his turn on the ground that- i) his seniority under dispute or is not determined; or ii) he is on deputation, training or leave; or iii) disciplinary proceedings are pending agaengt him; or iv) he is not considered for promotion for any reason other than his unfitness for promotion; shall, on subsequent promotion, subject to any order made by the competent authority in this behalf for the purpose of inter se seniority in the higher grade, be deemed to have been promoted in the same batch as his juniors."
5. It would appear from clause (iii) of the above rule that pendency of disciplinary proceedings is one of the grounds on which a civil servant is not promoted on his turn but his promotion is rather deferred. In the instant case it is an admitted position that the private respondent was cleared for promotion in 1977 but due to his suspension followed by the departmental enquiry his actual promotion was withheld. Thus the respondent's case is covered by clause (iii) hereinabove. He was ultimately promoted to the post of S.E. On 22.11.1984. As required by the above rule, on subsequent promotion of the civil servant whose promotion was postponed, he shall be deemed to have been promoted in the same batch as his juniors. Accordingly we are clear in our mind that as soon as the deferred promotion was notified, the promotee would automatically be deemed to have been promoted from the date of promotion of his juniors and it would not require any written order to be made in this regard. However, such automatic process would, no doubt, be subjected to any order made by the competent authority for the purpose of inter se seniority in the higher grade. Such order is obviously contained in the impugned notification which shows that for the purpose of inter se seniority, the private respondent who was promoted as S.E. On 22nd November, 1984 shall be deemed to have been promoted with effect from the date his immediate junior, namely Mr. S Mansoor Massan was promoted as Superintending Engineer in BS-19.
6. In course of his arguments the learned counsel for the appellant assailed the above order with regard to interset seniority of the private respondent. His contention was that since the private respondent was punished in consequence of the departmental proceedings which formed the basis of the postponement of his promotion, he could not be allowed the benefit of retrospective promotion for the purpose of seniority. It is true that as a result of the departmental enquiry the private respondent was awarded penalty of withholding of promotion for to years, which was ultimately reduced to minor penalty of mere 'censure' by the Service Tribunal vide its judgment dated 3rd August, 1986 in Appeal No.: 66/1983. The question would arise if the said punishment would come in the way of his promotion. Had the original penalty of to years' postponement of promotion been retained, he would have certainly not been promoted for the said period of to years. The learned counsel for the respondent was of the view that even in that case, his promotion should have been deferred from the date he was cleared for the same namely from September, 1977. His argument, in our opinion, was not without force. We see no reason why the appellant should have suffered the postponement of his promotion even for the period the departmental enquiry took to conclude. Some the such enquiries take years to complete because of notorious redtapism of the beaurocratic working. The accused officer should not be made to suffer for the delay for which he was not to blame.
7. In any case the said punishment of withholding of promotion was substituted by minor penalty of only 'censure'. The learned counsel for the private respondent has placed reliance on to authorities of the Punjab Service Tribunal to show that the penalty of 'censure' should not be allowed to affect the promotion which was otherwise due. In the case of Tajamal Hussain reported as 1985 PLC (CS)
848, it was held: "Even according to the rules, minor punishments do not stand in the way of promotion to higher rank." The same view was taken by the Punjab Service Tribunal in the case of Nazir Ahmed reported as 1986 PLC (CS) 228. It was held: "Two censures being minor punishment as per Punjab Police (Efficiently and Discipline) Rules 1975 can not thus stand in the way of the appellant for the promotion." Although no specific rules similar to the rules quoted in above to authorities were shown to us, yet we endorse the spirit of the same authorities and held that minor penalty like 'censure' should not be taken so far as to deprive the civil Service of his due promotion.
8. Apart from above, we are of the view that sufferance of departmental penalty is included in the criteria to be considered by the competent authority for determining the suitability or fitness of a civil servant for promotion. If for administrative reasons or in view of Government's rules/circulars, punishment awarded to the civil servant was ignored for promotion, it was entirely the discretion of the authority concerned. The Service Tribunal has no jurisdiction to interfere in the exercise such departmental discretion. This is precisely the reason that jurisdiction of Service Tribunal is barred for determination suitability or fitness of a civil servant for the purpose of promotion. In this connection reference may be made to proviso (b) to Section 4 of the Sind Service Tribunals Act 1973.
9. Considering the case from different angle we find that the penalty of censure which was awarded in 1986, actually related to the charges made against the private respondent in 1977. Even if the said penalty had been imposed upon him in the year of charges and his promotion had in the meantime been postponed, the decks would have cleared for his promotion by the the the appellant was promoted in 1980. This is clear from the minutes of the meeting of the Selection Board held on 20.9.1984. The relevant portion of the minutes reads as under: "Thereafter the Board perused his record of service and found to be consistently good. He has a score of 69.00 in "Grading" and 70.00 in "Quality and Out put of work". Keeping in view the private respondents such record of service, his promotion was unlikely to be deferred for longer period.
10. It was also contended by the learned counsel for the appellant that as per sub-section (4) of Section 8 of the Sind Civil Servants Act 1973, the seniority of a civil servant who was promoted to higher rank was to be reckoned from the date of regular appointment (promotion) and as the private respondent was promoted following the clearance by the relevant Selection Board on 22.11.1984, his seniority had to be reckoned from that date. While making this argument the learned counsel had seemingly overlooked the assertions made in the written statement filed on behalf of official respondents in as much as that the private respondent was due for promotion in 1977 and in September, of the same year he had also been declared fit for the promotion by the concerned Selection Board but the actual order of his promotion was obviously deferred on account of his suspension followed by departmental enquiry. To meet such eventuality rule 13 of the Seniority rules has been enacted, which in our opinion, is in consonance with and not in derogation of sub- section (4) hereinabove. We are therefore of the view that had the departmental enquiry against the private respondent not interposed, he would have been promoted on regular basis in September, 1977. That promotion was only postponed until after conclusion of the enquiry. As such the argument of the learned counsel for the appellant was untenable.
In view of above discussion we see no justification to interfere with the impugned notification.
Accordingly appeal is dismissed with no order as to costs.
Given under our hands and the Seal of this Tribunal on this 29th day of August, 1991 at Karachi.