' ROSHAN ALI MANGI (MEMBER).---The appellant's grievance is that although he was promoted as Assistant Professor (B-18), vide order dated 6-12-1992, alongwith others, with effect from 28-11-1992, nevertheless, he was not promoted to the said grade with effect from 30-12-1987, i,e, the date of promotion of his immediate juniors. He made a departmental appeal to the Prime Minister of Pakistan on 20-8-1994, through proper channel. To which the Establishment Division, responded to through an O.M. Dated 28-5-1995, i,e, after a period of 9 months, advised the M/O Defence to submit the appellant's case to the competent Authority.
2. He filed another application to the M/O Defence through proper channel,,which was forwarded on 5-7-1995. In that application, he requested to take an action on the appellant's promotion in the_ light of the said Establishment Division's O.M. i,e, the one dated 28-5-1995. But no response was made to his application.
3. Wherefor, after waiting for 90 days, the appellant filed present Appeal No, 414(R) of 1995, before the Tribunal on 31-10-1995, which was later on withdrawn on 28-1-1996, on the assurance by the representatives of the Directorate and the Establishment Division, vide judgment dated 28-1-1996, to consider his case.
4. His departmental appeal, ultimately, was rejected by the M/O Defence on 10-7-1996, with the remarks that no anti-dation of his promotion could be approved, on his service record. A copy was received by the appellant on 24-9-1996.
5. Hence this appeal, and filed on 27-10-1996. But due to some observation it was returned. It was ultimately resubmitted on 10-11-1996.
6. The brief facts of the appesal are that the appellant being M.Sc. Physics was appointed as Lecturer (B-17) with effect from 1-11-1969. He was promoted in B-18 with effect from 28-11-1992, vide Notification dated 6-12-1992.
7. It was in August, 1994, that the appellant came to know, that his junior respondents Nos. 5 to 37 were promoted to B-18 over and above him.
8. The appellant, was considered for promotion in 1987, however, due to adverse A.C.Rs, given to him in the years 1985 and 1986, respectively, which were not communicated to him, but were also included in his A.C.Rs,, he could not be promoted.
9. The D.P.C.'s. Meeting was also held in 1989 but because the appellant was thrown out of the employment, therefore, he could not be promoted.
10. Once, again the D.P.C. When held its meeting in 1991, did not consider his case of promotion, on the plea that some disciplinary proceedings were pending against him. He was ultimately promoted as an Assistant Professor with effect from 28-11-1992, vide Notification 6-12-1992. His contention is that he should have been promoted with effect from 30-12-1987, the date of promotion of his juniors.
11. Learned counsel, Raja Asghar, appearing for the appellant took the ground, that the Establishment Division of O.M. Dated 28-5-1995 with the direction to respondent department to send his case of pro forma promotion for the approval of the competent Authority. In view of that position, he argued, that since, the appellant was already promoted as Assistant Professor (B-18) his case, therefore, should have been placed before the competent Authority for the orders for his pro forma promotion, rather than holding a fresh meeting of the D.P.C. The exercise undertaken by the Authority, after the issuance of Establishment Division's O.M. Dated 28-5-1995, was an exercise in futility, hence null and void.
12. It was argued that the Establishment Division's said O.M. Was passed after taking into consideration the grounds of his departmental appeal. Therefore, Establishment Division could not itself go against its own decision which was duly issued, and conveyed to the respondents Nos.2 to 4, and also to the appellant.
13. Moreover, the learned counsel pointed out at the bar that respondents Nos. 1 to 4 had cconunitted before the Tribunal that the case of the appellant was being processed in accordance with the order of the Establishment Division, and an appropriate order would be passed accordingly. But the impugned refusal to anti-date the appellant's promotion could not be said as an appropriate order. It was, he observed, at the bar, in flagrant disregard of the earlier order of the Establishment Division's said O.M. As such was liable to be set aside.
14. The learned counsel was of the opinion that the said Establishment Division's O.M. Had a legal force and also effect of rule as held by the Supreme Court of Pakistan in PLD 1988 SC 131.
15. It was also pleaded that the appellant was ignored in 1981, on the grounds of the uncommunicated A.C.Rs, for the years 1985 and 1986, which could not justify his non-consideration.
16. The comments, have also been filed on behalf of the respondents. At the very outset, the maintainability of the appeal has been questioned under subsection (b) of section 4 of the Service Tribunals Act, 1973, whereby "no appeal shall lie to the Tribunal against an order or decision of a departmental authority determining or otherwise of a person to be appointed or hold post to be promoted to a higher grade. To enforce their stand, proviso of section 2g of the Civil Servants Act, 1973, has also been quoted, whereby "no appeal/representation shall lie on matter relating to the determination of fitness of a person to hold particular post or to be promoted to a higher post or grade". The objection of time limitation has also been raised.
17. As regards, non-consideration of the promotion of the appellant in the meetings of the D.P.C.
Held in 1987 and 1991, respectively, it has been admitted that the case of the appellant for promotion was considered, but he could not be promoted to B-18, as at that time disciplinary action against him was in progress. Moreover, he earned adverse entries in his A.C.Rs, for the year 1984 which were communicated to him, and he also had represented against those adverse entries and were not expunged. He was also awarded minor penalty of stoppage of annual increment in 1985. Subsequently as a result of the disciplinary proceedings, he was removed from service. However, he was reinstated into the service under the orders of the Tribunal. His case of promotion again was placed before the D.P.C., in its meeting held in 1991. But he was superseded on account of his indifferent service record.
18. The claim of the appellant, that the disciplinary proceedings were no doubt conducted against him, but he was exonerated from them, has been refuted. On the contrary it has been brought to knowledge of the Bench that "the disciplinary proceedings were in progress against him, but the Hon'ble Tribunal had not exonerated the appellant from the charges, and he was reinstated on the basis of natural justice". However, he was promoted to the post of Assistant Professor (B-18) with effect from 21-10-1992.
19. It has been admitted, that his appeal dated 20-8-1994, addressed to the Prime Minister was processed with the competent Authority, but all on purely human grounds, and at the request of the appellant. It has been admitted that the Establishment Division vide O.M. Dated 25-8-1995 had directed the respondents to submit his case for approval of the competent Authority. But it has been clarified that the respondent department complied with the said direction and considered the case of the appellant in accordance with the rules, but due to his indifferent service record, he could not be recommended for anti-dating his date of promotion.
20. In response to the complaint of the appellant that he withdrew his Appeal No, 414(R) of 1995 filed before the Tribunal on the assurance that his case was being considered,'but later on his ante-dation was rejected. And that, in the opinion of the learned counsel for the appellant, such a rejection was unjustified. It has been maintained that, D.P.C. Was held and the case of the appellant was considered in accordance with the law. But D.P.C. Decided otherwise. Even otherwise, the appellant did not object at the time of withdrawing his said appeal, the reconsideration of the case by the D.P.C. He, therefore, cannot take the plea, that his case was not required to have been placed before the D.P.C.
21. As regards the Establishment Division's O.M. Dated 28-5-1995, on which the learned counsel for the appellant has heavily relied in the original appeal, as well as during the oral arguments, it was countered that the said letter was merely an instruction to the M/O Defence and not prospective order under section 5 of the Service Tribunals Act, 1973. With these submissions it has been prayed to dismiss the appeal.
22. We have heard the parties and also perused the record before us.
23. The main issue in our opinion, in this case, is whether or not, the appellant is entitled to ante- dation of his promotion under the law.
24. The appellant earned adverse entries, in his A.C.R. For the year 1984, these were communicated to him. He was also imposed penalty of stoppage of increment in 1985. These facts have been concealed by the appellant. The record shows that the adverse entries communicated to him, were not expunged although they had been represented against by the appellant. This means they still hold ground.
25. The cases of the Lecturers including that of the appellant for promotion came up in the meeting of D.P.C. In 1987. Some Lecturers, although juniors to him were promoted, except the appellant. This was due to the fact, that some disciplinary proceedings against the appellant, were in progress.
Ultimately the appellant was removed from service. He was reinstated on the indulgence of the Tribunal, and on grounds of natural justice.
26. His case of promotion again came before the D.P.C. In 1991, but he was superseded on account of his indifferent service record. Although at that time also his juniors were promoted, but he did not agitate on the plea that he came to know about the promotion of his colleagues only in 1994. But this has caused delay to come up before the Tribunal in time. And, therefore, we support, the objection of the respondents, that the instant appeal is time-barred, since he sat back, and did not react in time. Having no knowledge about the promotion of his juniors, is neither justified nor would extend the time limitation.
27. As regards, the Establishment Division's O.M. Dated 25-8-1995, on which the learned counsel, has heavily relied upon, definitely reveals, that the respondent Defence Ministry was instructed to place the case of the appellant for promotion before the competent Authority. But the letter dated 13-3-1996 shows, that in compliance with the above instructions of the Establishment Division, the appellant's case was considered in the meeting of the special D.P.C. Held on 24th January, 1996, for his antidation of the date of promotion. In the meeting of D.P.C., besides other factor, the following factors also were recorded; in the minutes:--
(1) He earned adverse entry in 1984 which were not expunged. In his A.C.Rs, for 1986 and 1987 he was considered "not yet fit for promotion".
(2) In its meeting held in June, 1991, the D.P.C. Superseded him due to indifferent record.
28. The special D.P.C., therefore, decided that since the appellant was superseded in 1991 and he was appropriately reconsidered for promotion in 1992, on the basis of report earned in 1991, therefore, no anti-dation was possible, to which we also agree.
29. It is although true that un-communicated A.C.Rs, should not have been used against the appellant, as also highlighted in the memo. 'of appeal, as well as, also brought out by the learned counsel for the appellant, during the regular hearing of the case. But in fact, it was his supersession in 1991 which appears to have been the hindrance in his way to anti-dation of his promotion, against which he did not act, nor he approached the proper forum in time. This supersession has forfeited his original seniority for the purpose of ante-dated promotion along with his junior colleagues. Moreover, in view of bar, as pointed out by the respondents, vide their comments to which we also *agree, under subsection (b) of section 4 of the Service Tribunals Act, read with proviso of section 22 of the Civil Servants Act, 1973, the appeal against promotion is also not maintainable.
30. For the reasons, recorded above, the appeal having no merit, is dismissed with no order as to costs.
31. Parties be informed.