MUHAMMAD AYUB KHAN (MEMBER).---Facts of the case, as appeared from the record, are that the appellant was appointed LDC, B-5, on 13-11-1972 in the Planning and Development Division, Islamabad, he was later on promoted U.D.C. on 22-5-1983. The appellant, it appears, was involved in some disciplinary proceedings which ultimately culminated into his compulsory retirement from service on 24-11-1993 but the departmental authority, on acceptance of his appeal, converted the penalty of his compulsory retirement from service into his reversion to lower post, i,e, L.D.C. as a result of which the appellant took charge afresh on 24-3-1994 but the specific period during which his reversion was to remain effective, unfortunately, was not specified as required under Fundamental Rule 29 which is reproduced for convenience sake below:-- "F.R.29. If a Government servant is, on account of misconduct or inefficiency, reduced to a lower grade or post, or to a lower stage in his time-scale, the authority ordering such reduction shall state the period for which it shall be effective and whether, on restoration. it shall operate to postpone future increments and if so, to what extent."
2. The appellant challenged the same penalty before this Tribunal in Appeal No, 311 (R) of 1994, but his appeal was dismissed on point of limitation. However, the appellant was later on considered by the D.P.C. on 27-7-1995 but it did not approve him for promotion due to non-completion of 3 years as required for promotion in case of L.D.C. to their post of U.D.C. But subsequently a meeting of the D.P.C. was again held on 31-10-1995, in which L.D.Cs. junior to the appellant were considered and promoted. The appellant filed an appeal against it before this Tribunal and the latter was pleased by judgment dated 20-5-1994 to direct Planning Division to prepare and send case of the appellant to the Establishment Division within 3 months and it appears that the needful was done by the Planning Division and, thus, further promotion of the appellant to B-7 was effected by order dated 8-3-1997 with immediate effect. It reads:-- "No, 1(40) Admn-III/96 Islamabad, 18th March, 1997 OFFICE ORDER Mr. Muhammad Asif, L.D.C. (BPS-7 by Selection Grade) has been promoted temporarily as. Upper Division Clerk (BPS-7) in the Planning and Development Division with immediate effect. 18-3-1997 (Sd.) (MUHAMMAD DIN NAZ), Section Officer."
3. The appellant still feeling aggrieved from the aforesaid order filed a departmental appeal dated 15-4-1997 for ante-dation of his promotion but the same was not responded by the respondents and hence the present appeal was filed before this Tribunal on 13-8-1997 which is ample within time.
4. Learned counsel for the parties for and against the appeal have been heard and record perused.
5. It was stated on behalf of the appellant that promotion of the appellant was required to be made with retrospective effect, i,e, the date on which his colleagues junior to him were promoted and further that he was not required to wait for three years being not freshly appointed and in support of his view point placed reliance on:-
(i) 1982 PLC (C.S.) 451.
(ii) PLD 1987 SC 427.
6. Facts of the first case, stated above, are that one Sub-Inspector of Police while posted in C.I.A. involved himself in corruption case for which he was reverted to the post of A.S.I. of Police. His departmental appeal failed, he preferred a service appeal to the Punjab Service Tribunal, during pendency of which the D.I.-G concerned promoted him as Sub-Inspector but put him on probation.
It is happened that successor of this D.I.-G. when seized of the matter, ordered his reversion to the rank of A.S.I. and :- "It was considered necessary to put him on special report, hence S.P Multan was asked to send a special report on his working and conduct. The S.P. Multan has submitted the aforesaid report stating therein that he handled 15 cases and all were challenged, that he is honest, hard-working and his promotion case may be considered favourably. In view of this report and after going through his record, I order that he is promoted as Sub-Inspector and will retain his original seniority."
This order of 17-2-1979 was approved in the said Judgment whereas the other order dated 24-10- 1979 was not approved. But despite this the Tribunal observed: "Before parting with this case we would observe that in the matter of promotion this Court is not empowered to give any direction and leave the matter entirely to the departmental authority (appeal accepted)."
A perusal of these observations, necessitating promotion of the reverted A.S.I. to the rank of Sub- Inspector with his original seniority, was as a result of his good conduct by virtue of which the earlier blemish aspect of his conduct was thereby cleansed.
7. ESTACODE contains provisions for meeting such like eventualities at Serial No, 172-A, relevant portions at pages 245 and 246.Under Serial No, (c) an incumbent earlier suspended can be reconsidered for promotion under Serial No,(c) (i) to (vi). Para. 2 at page 246 of the ESTACODE reads:-- "(2) If a civil servant is superseded he will not be considered for promotion unless he has earned one more C.R. for one full year."
8. Now reverting to the facts of the case, according to which the appellant was involved in disciplinary action in which he was found guilty and awarded penalty of compulsory retirement from service which is a major penalty but, on departmental appeal, the departmental authority was pleased to convert this penalty into his reversion to the lower post but simultaneously failed to specify the period etc. till which he would stand reverted as referred to above under Fundamental Rule 29. Later on the D.P.C. was convened in which incumbent junior to him were considered and promoted to the total exclusion of the appellant, he filed a service appeal in this Tribunal and pursuant to the directions issued therein to the departmental authority for his consideration within three months, the appellant was considered by the D.P.C. which was pleased to order his promotion with immediate effect which order is reproduced above in verbatim.
9. No doubt, rationale/Policy behind ante ration of promotion is contained in items (i) to (vi) vide at page 246 of the ESTACODE but strictly speaking the appellant cannot be accommodated therein for the obvious reason that he had a blemish record and does not fulfill the requirement of the items at page 246. The authority contained in 1982 PLC (C.S.) 451 respectfully can be distinguished in the sense that the stigma attached to the character of the A. S.I. was totally obliterated and washed away by the special report whereby he justified himself for the desired promotion with original seniority whereas in the instant case, the appellant has still got a stigma attached to him despite being reinstated in service and in this respect paragraph 2 quoted above is a hurdle in his way. He should show good performance at least for full one year as required.
10.Reference to and discussion on the second authority contained in PLD 1987 SC 427 is not considered advisable.
11.In view that, has been stated above, we are constrained to set aside the impugned order and remand the case to the departmental authority for reconsideration of his case by the concerned D.P.C. as to whether he deserves promotion from the date his juniors were promoted and pass appropriate/just order. There shall be no order as to casts.