1985 S (PLP)

2. The appellant joined the service of the Province as an Engineer in the Communication and Works Department, like most of the other respondents, as a Temporary Engineer. He was proceeded against departmentally and was removed from service in 1961. However, he re‑instated in service as a result of this Court's order and two departmental inquiries were held into his conduct. In one, he was exonerated. In the other, which concluded in 1970 the minor penalty of stoppage of three increments was imposed. During the period of his removal and the departmental inquiries, the respondents got promoted to the next higher grade of Executive Engineer. The appellant got promoted subsequently in 1973 and thereafter claimed seniority in the promoted grade over the respondents in accordance with their seniority in the lower grade. The appellant invoked Explanations I and III of rule 15 of West Pakistan Services of Engineer (Building & Roads) (Class I) Rules, 1967. His precise contention was that he was never considered alongwith the respondents, was not superseded in terms of the Explanations to the Rule and was entitled to regain his seniority immediately when he got promoted to the higher grade.

3. The Tribunal had to undertake somewhat arduous factual inquiry into the allegations made by the appellant and rejected his claim by observing as follows:‑‑ "We have done a lot of thinking over these two, issues for adjudication before us and have no hesitation to say that the appellant's record of service was a "checker record and he faced enquiries on very serious charges. He was lucky to be exonerated in one but the fact remains that the charge of preparing bogus muster rolls in connivance with his subordinates stood fully proved. He was punished for the said act although the penalty was not major but minor in nature. Penalty is always penalty and if the authority imposing the same takes a lenient view and punishes the delinquent with minor penalty for the offence so committed, it all the same remains a stigma on his character unless the same is washed out in appeal. In the present case the appellant accepted the penalty i.e. in other words accepted his guilt. In these circumstances his record of service would not be considered at par for promotion with those who did not suffer from any such blemish. So we are of the considered opinion that the P.S.C. was justified to ignore the appellant for promotion and such an act can be safely considered an act of supersession against appellant that this occurred because of some bias in the mind of P.S.C. on account of certain adverse entries is hardly tenable. What we have to see in this case is whether the case of the appellant was considered alongwith respondents whom he claims to be junior at the relevant time and was superseded or not, we are of the considered opinion that the appellant was superseded and rightly too and thus lost his seniority in the year 1967: In view of the above we will hold that the claim of the appellant cannot be accepted and he cannot be declared senior to the respondents who once during the course of service were promote and the appellant was superseded for his checkered record."

4. The order granting the leave does not make any reference to Explanations I and III of rule 15 whose benefit the appellant is seeking before us. Instead, it refers to an assumed failure on the part of the Government to observe the requirement of a rule concerning the sending up of the cases for promotion to the Public Service Commission. These instructions relied upon by the appellant were enforced on 7‑1‑1969 while the case for promotion was once referred in 1969‑

70. The instructions of the year 1969 could have no application to situation as obtaining before 1969. Besides, it is conceded that the case of the appellant was sent to the Public Service Commission alongwith that of others in 1966‑

67. It is also conceded that his name was sent alongwith the others for consideration of Public Service Commission for promotion in 1969‑

70. There was, therefore, no failure on the part of the Government to send the case of the appellant to the Public Service Commission. Nor was there violation of the policy letter, dated 7‑1‑1969. This takes care of the points on which leave to appeal was granted to the appellant.

5. The contention of the learned counsel for the appellant is now somewhat different. While conceding that in 1966‑67 the appellant's name was forwarded to the Public Service Commission and he was duly considered for promotion and in (sic) over with the remarks that "Superseded due to unsatisfactory reports in his Character Roll", it is contended that this supersession stood vitiated on two grounds. Firstly, the Public Service Commission showed utter ignorance of the case by directing that the appellant be reverted forthwith when in fact the appellant had not been promoted even. Secondly, the unsatisfactory remarks which formed the basis for his supersession stood expunged from the record and with such expunction there was left nothing to sustain the advice. So far as the first objection is concerned, the Public Service Commission by its letter, dated 27‑5‑1967 gave the following advice in respect of four officers one of whom was the appellant. "The Commission do not consider the following officers suitable for promotion as officiating Executive Engineers due to unsatisfactory record and they advise that these officers may be reverted immediately." The departments quite often while referring the cases to Public Service Commission or after it make ad hoc promotions. It is to take care of such cases that the concluding remarks were added. If in terms it did not apply to the appellant's case, the advice did not get vitiated.

6. As regards the subsequent expunction of the adverse remarks we do not find any mention of it in the memo of appeal, amended memo. of appeal, or miscellaneous application filed by the appellant before the Service Tribunal. There is no comment of the department available on this point. In the memo of appeal filed in this Court for the first time it was urged that "the question of unsuitability was determined by the Public Service Commission by keeping in view the record and the entries made in the annual confidential reports of then prevailing, such remarks were subsequently expunged, hence the same could not be made the basis for and applied as a penalty because the same were not existing against the appellant". The Public Service Commission was justified in taking into consideration remarks competently made and existing on the record o4the appellant. The subsequent expunction of the remarks will not affect the conclusion competently drawn by the Public Service Commission.

7. Another ground taken up by the learned counsel was that the case of the appellant was deferred in 1970 and he was not in fact superseded so as to lose the benefit of Explanations I to III. The exact advice given by the Public Service Commission was as follows:‑‑ "As regards Messrs Abdul Hamid Ch. (Seniority No. 3), Mahmood‑ul‑Hassan (Seniority No. 8) the Commission observe that as indicated in the pro formas of enquiries received in this proposal these officers are facing enquiries with major penalties. In accordance with the Government instructions contained in S&GAD Letter, dated 7‑1‑1969 referred to above, these officers cannot be considered for the above promotions at this stage. In the circumstances the Commission have deferred their. cases. I am to request you to refer their cases after the pending enquiries against them are finally disposed of." The appellant after getting promoted sought benefit of another instructions, dated 18‑1‑1968 para. 2 of which is reproduced hereunder:‑‑ "If a Government Servant who is not promoted on account of enquiry against him but is subsequently exonerated, it should be ensured that the holding of inquiry should not work against him. The question regarding possibility of his pro forma promotion should be examined by his appointing authority, and he should be allowed his original seniority. It is necessary to set out in the promotion order of junior officer is temporary and the senior officer has been ignored on account of serious charges against him in a departmental inquiry."

8. Throughout his 'memo of appeal before the Tribunal, the appellant represented that he was exonerated in the departmental inquiries. This was held to be nor so. He was held guilty and the penalty of stoppage of three increments was imposed. It may be a minor penalty but it cannot be equated with exoneration. Being proceeded against for a major penalty, found guilty and on imposition of minor penalty he cannot as a Matter of right, claim pro forma promotion or avoid the consequence of his being passed over, or of others being preferred over him. If an officer lower in seniority has been preferred over him it is only academic to argue that one higher in seniority to both was not matched and preferred. We do not find that on any of the points raised the appeal has any merit. It is dismissed with no order as to costs. M. I. Appeal dismissed.