The relevant facts of the case are that the appellant while he was serving as a Junior Clerk in the cadre of Punjab Secretariat Ministerial Service, Lahore, was involved in a murder case and was placed under arrest. In consequence thereof .The appellant was suspended from service with effect from 19-1-1967 vide orders passed on 7-2-1967. Later on the appellant was acquitted from criminal charges and was re-instated in service with effect from 21-2-1973 vide orders of the same date passed by the Additional Chief Secretary, Government of the Punjab. This order also stipulated that the appellant will not be entitled to draw any difference of pay and allowances for the period of his suspension from 19-1-1967 to 21-2-1973 (the date of his re-instatement), as the Sessions Judge had given him the benefit of doubt and his acquittal was, therefore, not honourable. The appellant's representation against this condition was first rejected but later on when the appellant gave a legal notice to the Government under section 80 of C. P. C. Revised orders were passed by the Additional Chief Secretary, Government of the Punjab, on 4-10-1973, stating that the period of suspension of appellant from 19-1-1967 to 20-2-1973 shall be treated as period spent on duty and he will be entitled to draw difference of pay and allowances etc. Less amount actually drawn as subsistence allowance for the suspension period. During the prolonged suspension of the appellant his four juniors named below were promoted as Senior Clerks with effect from 1-9-1968 vide orders passed on 18-4-1969:-
1. Mr. Kamal-ud-Din.
2. Mr. Muhammad Saeed.
3. Mr. Mahmood Khan.
4. Mr. Muhammad Hafiz.
The name of the appellant who was under suspension at the relevant the, does not figure in the above promotion order. After the re-instatement into service of the appellant, 29 further promotions from the posts of Junior Clerks to the posts of Senior Clerks were made vide order of 3- 12-1973, in which the appellant was also granted promotion as Senior Clerk with effect from 3 12- 1973. Being dissatisfied? With the date of promotion given to him the appellant approached his Department to grant him pro forma promotion with effect from the date of promotion of his next junior but vide orders of the Punjab Housing & Physical Planning Department dated 20-4-1974 his representation was rejected. He further pressed his appeal before the Additional Chief Secretary which again was turned down ride order dated 15-10-1974. 1 he to orders of 20-4-1974 and 15-10- 1974 are impugned before us.
2. The present appeal has raised the preliminary point of its maintainability before this Tribunal on the ground that under proviso (b) to section 4(i) of the Punjab Service Tribunals Act, 1974, this Tribunal is not competent to look into matters relating to fitness for promotion to a higher post. The relevant proviso is reproduced below: "(b) no appeal shall lie to a Tribunal against the order or decision of departmental authority determining fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade."
In reply to these preliminary objections the learned, counsel for the appellant has put forward the following to arguments :-
(a) The case of promotion of the appellant stands decided vide orders of 3-12-1973. The appellant is only agitating against the date of promotion granted to him. According to the learned counsel what he impugned is his seniority in the Grade of Senior Clerks in which he has suffered due to award of a date of promotion which is much later on than the one to which he was entitled.
(b) Learned counsel for the appellant also quotes para. 4 from the Circular letter issued by the Government of the Punjab, Services &, General Administration Department dated 16-10-1973 (Annexure `J' on record) in support of his contention. These circular instructions have been issued to cater for the situation arising out of the Supreme Court ruling to the effect that if an officer is wrongfully prevented from performing the duties of a higher post he must be given arrears of salary because when an Officer is notionally promoted from an earlier date there is an implied admission that he was improperly deprived of his promotion on due date.
The relevant portion of the circular under discussion runs as under:- "(2) As a result of the decision of the Supreme Court the following issues have cropped up :- (a)
(b) What should be the future policy of Government regarding grant of pro forma promotion.
(3)
(4) 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 paragraphs.
Pro forma promotion is generally granted in the typical cases mentioned below:- (i)
(ii) The official is under suspension or facing a departmental inquiry of serious charges and therefore, his promotion is deferred. Eventually he is exonerated of the charges and he has to be given pro forma promotion from the date on which he would otherwise have been promoted (i.e)
(iv)
(5) In the (i), (ii) and (iv) type of cases, pro forma promotion would be justified provided it would be held on the basis of Service record and performance of the official that he would certainly have been promoted on the due date but for the circumstances that he was incorrectly treated as Junior or was facing a departmental inquiry or was over-- looked. In such cases his fitness for promotion should not be considered in isolation but in comparison with other officials, who would have been considered along with him. Pro forma promotion should be granted only when the grounds constituting merit are certain and the fitness of the official for promotion in comparison with other officials is beyond doubt.
3. It was argued on behalf of the appellant that his case is covered under para. 4(ii) of the circular instructions quoted above and that he has a vested right to pro forma promotion from the date his junior was promoted during the period of his suspension,
4. As far as first argument on behalf of the appellant is concerned the determination of fitness for promotion necessarily includes the determination of the date from which a person is considered fit to hold the higher post It cannot be argued that since an incumbent is adjudged fit for promotion on a certain date he is automatically to be considered fit for the higher post from an earlier date also. Therefore, we hold that what the appellant is really impugning is determination of his fitness for promotion and the case is hit by the bar created by the proviso (b) to section 4(i) of the Punjab Service Tribunal Act, 1974 which has been reproduced above.
5. As far as the second contention on behalf of the appellant is con--cerned out attention has been drawn to the list four lines falling in the quotation in the said circular reproduced in para. 4 (ii) above, according to which pro forma promotion is to be graced only when the grounds cons-- tituting merit are certain and the fitness of the official for promotion in comparison with other officials is beyond doubt. However, due to our findings on the first contention on behalf of the appellant we do not feel ourselves to give finding on the contention of the appellant.
6. In the result we hold that this appeal is not maintainable before this Tribunal being hit by the bar to the jurisdiction in proviso (b) to section 4(1) of the Punjab Service Tribunal Act, 1974 and is dismissed with no orders as to costs.