1. ' ABDUL MAJID KHANZADA, (CHAIRMAN).---This appeal is arising out of the facts that the appellant entered in Government service as Assistant Warden Fisheries (BPS-11) under order, dated 16-2-1969 and his appointment was on regular basis. He was promoted to (BPS-16) as Extra-Assistant Director, Fisheries on regular basis under order, dated 7-8-1978. Subsequently the post of Extra- Assistant Director was upgraded to (BPS-17) and the appellant was allowed (BPS-17) with effect from 12-5-1979 under order, dated.10-5-1979 which order is at page 27 of our record.
2. ' After promotion of the appellant to (BPS-17) the Nomenclature of the post was changed from Extra-Assistant Director Fisheries to Assistant Director Fisheries. That after completing the length of qualifying service the appellant became entitled to promotion to the post of Deputy Director (BPS- 18) but his name was not included in the Working Paper prepared by the Administrative Department for placement before the Departmental Promotion Committee in the year 1992, which prompted him to make representations before the Respondents Nos.1 and 2, in this regard. The representations were made from the years 1992 to 1998 for the same relief and purpose, which according to appellant went unheeded. Instead of allowing regular promotion the Junior Officers were allowed to officiate against the post of Deputy Director and in this way a long time had passed out without considering the appellant for next higher promotion. The Departmental Promotion Committee constituted and met on 22-6-1998, did not-consider the appellant for further promotion as his name did not include in the working paper to be placed, before the Departmental Promotion Committee.
3. ' According to the appellant two Junior Officers Munohar Lal and Ghulam Mujataba Wadhar were placed before the Departmental Promotion Committee, who were cleared for further promotion and were promoted as Deputy Director Fisheries in (BPS-18) under Notification dated 15-10-1998.
4. Reportedly Munohar Lal was allowed improved Seniority by the then Chief Minister of Sindh on Political consideration.
5. ' That the appellant has taken his cause of action for filing the present appeal from the Notification dated 15-10-1998, as prior to it there was no document/order made public or served upon him from which he could have taken his cause of action. He filed Departmental Appeal on 29-10-1998. It was not disposed of and in the meanwhile another junior officer Mr. Sadruddin Samejo was promoted vide notification dated 19-1-1999.
6. ' Under such circumstances appellant had prayed that he being eligible person be placed before the Departmental Promotion Committee for his consideration for further promotion, on the basis of ground pleaded in the Memo. Of Appeal.
7. ' That the respondents have filed their written-statement and alongwith written statement filed Minutes of the Meeting of DPCs held on 14-2-1995, 22-6-1998 and 12-12-1998.
8. ' Under such circumstances the scope of the present appeal is confined before this Tribunal to see whether the Departmental Promotion Committee evaluated the appellant in accordance with the principle laid down by the Hon'ble Supreme Court of Pakistan and as well as the promotion Policy. If there is no error apparent on the face of record nor there is any violation of the principle to evaluate the officer for further promotion, we are mindful that the fitness so determined by the Departmental Promotion Committee will be out of the place of our jurisdiction, the objection which has accordingly been taken before us by the learned Assistant Advocate-General, Sindh.
9. ' In case we find conclusion arrived at by the Departmental Promotion Committee was in violation of principle of promotion policy and so also the law laid down by the Honourable Supreme Court of Pakistan on the subject we would be within our jurisdiction to hold that appellant is entitled to the pro forma promotion from the date his juniors were promoted. Therefore, another feature of this appeal is that whatever relief appellant is entitled to or can be granted, would be grant of pro forma promotion and not the assessment of fitness because the DPC determines the fitness for promotion at a particular time.
10. ' That on the point of jurisdiction, the learned counsel for the appellant has relied upon the case of:- - "Aqila Asghar Ali reported in PLD 1991 SC p.1118 (Rel. Para. 12): The Hon'ble Supreme Court has held: "As in the present case the pro forma promotion of the Appellant/Civil Servant was questioned, it had to be shown that situation was compulsive for the Government and that the appellant had a legal right to be so promoted. In the context of these instructions, the pro forma promotion is not so much a question of fitness as having been illegally deprived of a right possessed by the civil servant. This question was certainly open to examination by the Service Tribunal and its jurisdiction was not ousted by section 4 of the Sindh Service Tribunal Act, fitness being not one of the considerations therein."
11. ' This judgement clinches the issue and is a complete reply to the objection raised by the learned Assistant Advocate-General, Sindh.
12. ' That the learned counsel for the appellant has further placed reliance on a case of:-- "Mian Khalid Masood, SP v. Chief Secretary, Government of Punjab decided by the Punjab Service Tribunal and reported in 1992 PLC (C.S.) 760 (Rel. p. 767 para. 16): ' For all these reasons we proceed to accept the appeal, declare the impugned proceedings of the Provincial Selection Board and relevant order of the Competent Authority as illegal to the extent of superseding the petitioner for promotion at the relevant, time and direct the respondents to place the case of the retired officer before the Provincial Selection Board to consider his request for pro forma promotion and make fresh recommendation strictly in accordance with law and record. As discussed in the preceding paragraph his service record ought to be properly put up before the Board and considered accordingly. The average reports earned by the appellant shall not to be considered as adverse as the same was never communicated to him.'
13. ' We may again restate that for purpose of promotion the relevant ACR of the Officer are those which he has earned since his last promotion."
14. ' On the basis of this case law we would like to first examine the proceedings of DPC recorded on 14-2-1995. The name of the appellant in the order of Seniority is at Serial No,4 whereas the name of Sadruddin Samijio, Ghulam Mujtaba Wadhar and Munchar Lal are at Serial Nos.5, 6 and 10 respectively. Accordingly to the working paper prepared by the Administrative Department appellant and. Ghulam Mujtaba Wadhar are eligible for promotion whereas Sadruddin and Munohar Lal are not eligible for promotion. Out of 3 Senior Officers at Serial Nos.1, 2 and 3 Mr. Ali Murad Arbab and Mazhar Ali Samo were cleared by the DPC for further promotion whereas there are no findings regarding the name of Mr. Khan Muhammad Niazi, whereas appellant was deferred with the order that one vacancy of Deputy Director 'Fisheries (BPS-18) be reserved for him. Ghulam Mujtaba Wadhar was cleared for further promotion and Sadruddin Samijo and Munohar Lal were not considered for further promotion being ineligible.
15. ' That since the appellant was deferred by the DPC on 15-2-1995 and on 22-6-1998, therefore, we would not like to examine the proceedings of these DPCs for the reason that in case we found him entitled to the promotion in the findings recorded by DPC on 12-12-1998 he will be entitled to have been promoted with effect from 14-2-1995 as having been deferred. Because principle of deferment is that officer is not being found fit for. Promotion for want of certain requirements and the moment such requirements completed he will take his promotion with effect from the date his juniors were promoted as he was deferred and not superseded. Under such circumstances we would scrutinize the minutes of the meeting of the Departmental Selection Committee recorded on 12-12-1998 as the appellant had been superseded in those proceedings. In these proceedings, Departmental Promotion Committee considered only two officers, i,e, the appellant and one Mr. Sadruddin. The appellant was superseded whereas Mr. Sadruddin was cleared for further promotion who was junior to the appellant.
16. ' That from the record one thing which is apparent, is that the appellant had become eligible for the next higher promotion in the year 1992 but he was either being not considered or deferred and ultimately superseded in Departmental Promotion Committee held on 12-12-1998. His juniors were being promoted in preference to the appellant.
17. ' Adverting with the proceedings of the Departmental Promotion Committee held on 12-12-1998, wherein the appellant was superseded and his junior Mr. Sadruddin was cleared, we find that the findings of the Departmental Promotion Committee are that appellant remained as average Officer and obtained 45.90% marks in overall grading against the required score of 50%. The grading relied upon by the Departmental Promotion Committee is worked out in Annexure 'O'. On perusal of Annexure 'O' it is further found that the marks calculated under the caption of 'Overall Grading' are 93 whereas with the assistance of the learned counsel when these marks were counted by us they came to 100. We are further surprised to see that against the year 1996 under the Caption 'Overall Grading' there is good/average. The grading can be either good or average. It cannot be simultaneously good and average. We treat this grading as good and instead of 6 we take the marks as 7, in this way overall grading comes to 101. If 101 is divided by 10 the average comes to 5.31. If 5.31 is multiplied by 10 then the overall grading comes to 53.1, much above than the required score. The same miscalculation was found under the Caption Quality and output where against the 99 marks calculated, on our calculation the marks came to 106. Moreover for censure which had been given to the appellant as minor penalty in the year 1990, on that score 3 marks had been deducted from that of grading of the appellant when he was being assessed in December, 1998. We have gone through the Promotion Policy and we do not see any provision whereunder the DPC was entitled to deduct 3 marks from the marks secured by the appellant in the Head of 'Overall grading' after 8 years and that too when the two DPCs had already assessed the officer and deferred because the representation made by him for expunging of the adverse remarks given to him for the year, 1979, 1980, 1982 and 1985 were pending. We have been pointed out by the learned counsel for the appellant an order dated 16-9-1998 whereunder the adverse remarks given to the appellant in the years 1979, 1980, 1981 and 1985 were expunged. It appears that the Departmental Promotion Committee has not appreciated this order when assessing the officer in December, 1998 for further promotion. Moreover, the very basis on which the appellant was being deferred in two Departmental Promotion Committees of 1995 and June, 1998, disappeared vide order, dated 16-9-1998.
18. ' The learned counsel for the appellant had relied upon 1984 PLC (C.S.) 287; Rauf Ahmed v.
19. Government of Punjab wherein the Punjab Service Tribunal has held "that the material on the basis of which officer was superseded when no longer existed, supersession must go." He has also relied upon the case of Muhammad Farooq v. Province of Punjab reported in PLD 1987 SC 271 to the effect that if the adverse remarks are not communicated or if so communicated, there is no record of their having been communicated and acknowledged by the concerned Officer, such adverse remarks should be ignored for the purpose of promotion and premature retirement." The learned counsel has invited our attention to the judgment dated 15-8-1998 passed in Appeal No,99 of 1997 Raza Muhammad Siyal v. Chief Secretary, Government of Sindh in support of the proposition that minor penalty cannot come in the way of the officer for next higher promotion. The judgment of Raza Muhammad Siyal passed by this Tribunal was upheld by the Hon'ble Supreme Court of Pakistan as the leave was refused in Civil Petition No,713-K of 1998, decided on 28-1-1999.
20. ' That in view of, what is stated above, we are of the considered opinion that the appellant was wrongly superseded by the Departmental Promotion Committee held on 12-12-1998 and we accordingly hold that he is entitled to pro forma promotion from the date his juniors were promoted to the next higher post of (BPS-18).
21. ' Our attention had also been invited by the learned counsel for the appellant to Annexure P/1, where it is mentioned that date of reaching maximum of (BPS-17) of appellant at Serial No,3 of the document is 1st December, 1998 whereas the document annexed with the written statement as P.3 which are minutes of the meeting of the Departmental Promotion Committee held on 30-10-1997 in which the appellant was cleared for moveover, the date of reaching at maximum is wrongly mentioned as 1-12-1990. This is a patent error apparent on the face of record, we would therefore, direct that appellant would be allowed, moveover with effect from 1st December, 1990 from (BPS- 17) to (BPS-18), on these typographical errors when the learned Assistant Advocate-General was confronted he could not offer any satisfactory explanation and under the circumstances we found it unjustified to withhold the relief which the appellant is entitled to, on the basis of material placed before us by the learned Assistant Advocate General himself.
22. ' Before parting with this case, it will not be out of place to mention here that the matter was opened before Full Bench but the learned 3rd Member was pleased to point out that in the Annexure 'C' which are Minutes of the Meeting of Departmental Promotion Committee dated 14-2- 1995 he himself was the Chairman of the DPC which deferred the appellant. Therefore; in all fairness the learned Member withdrew from the Bench treating the case "as not before him" and as such it was heard by the Chairman and learned Member-II Mr. Abdul Rasheed Memon. Under these observations we allow this appeal to the extent of granting pro forma promotion to the appellant from (BPS-17) to (BPS-18) from the date his juniors were promoted and we further allow him moveover from (BPS-17) to (BPS-18) with effect from 1st December, 1990 modifying the order, dated 30-10-1997 which is filed with the Written Statement as Annexure P.3.
23. ' Given under our hands and the Seal of this Tribunal this 23rd day of May, 2000.