' MUHAMMAD BASHIR JEHANGIRI, J.---Muhammad Akbar Khan petitioner seeks leave to appeal against the dismissal of his appeal by the learned N.-W.F.P. Service Tribunal, Peshawar, (hereinafter called as the Tribunal) on 3-10-1998.
2. The facts of the case, briefly stated, are that the petitioner had joined Police Department in the Government of N.-W.F.P. As Police constable on 14-12-1968 and in due course was promoted as A.S.I.
Vide order dated 19-3-1988. While he was posted at Jangli Check Post on 11-8-1996, a complaint of corruption had surfaced against him. On 11-12-1996, the petitioner moved an application for L.P.R.
Which was accepted on 14-12-1996. It appears that some junior A.S.Is., in the meantime, were granted selection grade from BPS-9 to BPS-11. The petitioner filed departmental appeal to respondent No,2 on 19-8-1977 for selection grade. As respondent No,2 did not respond to the departmental appeal of the petitioner, he after waiting for a statutory period filed an appeal before the Tribunal.
3. The learned Tribunal while disposing of the appeal on merits observed that the impugned order qua grant of selection grade from BPS-9 to BPS-11 to certain Police Officers was issued on 4-6-1997 whereas the petitioner had proceeded on L.P.R. On his own accord on 14-12-1996 five months and twenty days before the issuance of the said list; that the petitioner had earned several bad entries in his service record; that during the period mentioned above, the petitioner was being proceeded against departmentally under the relevant Efficiency and Discipline Rules on the charge of having received illegal gratification amounting to Rs,7,000 in case F.I.R. No,348, dated 12-8-1996 registered against a private person under section 419/420/468/471, P.P.C. That the petitioner was charge- sheeted and in consequence the inquiry proceedings were pending; that in the meantime the petitioner applied for L.P.R. Which was granted to him and thereby he appeared to have saved himself from punishment by availing 365 days L.P.R. According to the learned Tribunal, the petitioner was required to have a clean and unblemished service record for the purpose of promotion or grant of selection grade which the petitioner unfortunately did not possess; that the petitioner had neither named the officials who had equally bad record but had been promoted.
The learned Tribunal, therefore, apparently noticed no obvious illegality or irregularity so as to strike down the impugned order dated 4-6-1997 and finding the departmental appeal filed by the petitioner as barred by time, dismissed his appeal.
4. Mr. M. Asif Khan, learned Advocate Supreme Court, in support of this petitioner, contended that there was not an iota of evidence to show that the petitioner has been awarded adverse remarks in his A.C.Rs, and, therefore, the finding of the learned Tribunal that the petitioner had patchy record of service was untenable. The learned counsel then urged that the finding of the learned Tribunal that the departmental appeal filed by the petitioner was barred by limitation was against ill- founded in that the names of the opponents of the petitioner had been processed for selection grade on 4-6-1997 and that he was entitled to wait for the period of 90 days when the process was completed on 4-6-1997 and when the departmental appeal was decided on 19-8-1997 was apparently not time-barred.
5. Mr. Imtiaz Ali learned Additional Advocate-General, N.-W.F.P. Has supported the impugned order as a whole and has also added documents to the record of the case which consists of the proceedings against the petitioner initiated under the Efficiency and Discipline Rules. The learned Additional Advocate-General has, however, been unable to file any document in proof of the assertion that there were any adverse remarks in the A.C.Rs, of the petitioner during the period of his service. We, therefore, find that the observation that the service record of the petitioner was patchy and he could not have been considered for award of selection grade or promotion on that score remains unsubstantiated. Again the department did not dispose of the departmental appeal of the petitioner on merits, therefore, the question of any delay in the disposal of the departmental appeal is of no consequence. It is settled law that if the departmental authority does not dismiss the departmental appeal on the ground of bar of limitation, the Tribunal of its own could not hold the appeal as incompetent in view of the said bar of limitation. The finding of the learned Tribunal that the departmental appeal filed by the petitioner being barred by time, and thus, service appeal was not competent is again misconceived.
6. We have, however, perused the record in Part-II of the Paper Book which indicated that the petitioner was charge-sheeted on the charge of having received illegal gratification amounting to Rs,7,000 in the case F.I.R. No,348 registered on 13-8-1996 in Police Station, Badaber, District Peshawar, under section 419/420/468/471, P.P.C., a final show-cause notice had also been issued to him. The departmental inquiry was also held in which though the petitioner had not participated but recommendations for imposition of appropriate penalty were made to the higher authorites by Inspector/D.E.P., Peshawar. It is settled law that if an inquiry is pending against a civil servant under Efficiency and Discipline Rules, or the adverse findings have been recorded against him, then the delinquent civil servant is not considered for grant of selection grade or promotion till the inquiry is finalized. In the instant case the inquiry could not attain finality because, in the meantime, the petitioner voluntarily opted for leave preparatory to retirement for 365 days. The learned Tribunal was, therefore, justified to have not granted the relief to the petitioner in the peculiar circumstances of the case.
7. We do not find any infirmity of the kind in the impugned order warranting our interference under Article 212 (3) of the Constitution of Islamic Republic of Pakistan, 1973.
8. The petition having no merit is dismissed and leave sought for is declined.