1999 PLP 1540 (SCMR)

AJMAL MIAN, C.J.

This is a petition for leave to appeal against the judgment dated 3-2-1998 passed by the learned Federal Service tribunal, Islamabad (hereinafter referred to as the Tribunal) in Appeal No.244-K of 1,997, filed by respondent No. I for issuance of direction that he may be notified as having been promoted with effect from 22-4-1997, allowing the same as follows:-- "In view of the above discussion we accept this appeal, set aside the appellate order dated 12-7-1997 was well as the action of withholding the promotion of the appellant and direct that the appellant may be notified to have been promoted with effect from 22-4-1997 with all back benefits and costs of this appeal." The brief facts are that respondent No. I was considered by the appropriate Departmental Promotion Committee in its meeting held on 4-2-1997 for pro motion to B-18 and he was found to be fit and was recommended for promotion, subject to approval by the competent Authority, alongwith his other colleagues consisting of 58 officers. It seems that the competent Authority approved the above recommendation. Respondent No. I was shown at Serial No.47 of the list of approved officers, but when the notification for promotion was issued on 22-4-1997, the name of respondent No. I was missing and consequently, he filed a departmental appeal on 2-5-1997, which was rejected on 12-7-1997 on the ground that his promotion was deferred for administrative reasons and he would be considered in due course of time. In the above factual background, respondent No. I challenged the above notification dated 22-4-1997 in which his name was omitted as a promotee and also the appellate order dated 12-7-1997, before the Tribunal by filing above appeal. The above appeal was resisted by the petitioners, inasmuch as comments were filed in which it was stated that respondent No. I could not be promoted on the basis of adverse reports recorded regarding his integrity. It was also stated that the report alleging the officer to be corrupt was brought to the notice of the Establishment Division and the approval of promotion was withheld by letter dated 22-7-1997. The Tribunal perused the record and found that respondent No. 1 was awarded cash awards of Rs.40,000 each on three occasions i.e. for the years 1993-94, 1994-95 and 1995-96 for his meritorious services. The record also indicated that respondent No. I was entrusted with the investigation of cases of very important nature at Karachi while he was posted at Islamabad. It was also pointed out that at no point of time respondent No. I was issued any show-cause notice. It was concluded that a person is presumed to be innocent until approved guilty, and that no one can be condemned merely on supposition and presumption. Consequently, the appeal was allowed in the above terms. The official petitioners have filed the above petition for leave to appeal. In support of the above petition it has been vehemently urged by Mr. Tanvir Bashir Ansari, learned Deputy Attorney-General that since the petitioners had not passed any adverse order against respondent No. 1, he had no cause of action and that his case was merely deferred. On the other hand, Mr. Muhammad Naseem, learned counsel for respondent No. 1, has submitted that the impugned judgment of the Tribunal is in accordance with law and that on no basis that petitioners could have withheld respondent No. l's name from notifying the same for promotion. We may observe that once respondent No was recommended for promotion by the Departmental Promotion Committee after having found -him fit, and the recommendation of the D.P.C. was accepted by the competent Authority, a right was created in favour of respondent No.

1. The petitioners had notified for promotion even 11 persons junior to him. It may be observed that even after the expiry of more than 1-1/2 years respondent No.1 had not been issued any show-cause notice. The finding recorded by the Tribunal is that factually respondent No.1 was given cash award thrice for the years mentioned above for his meritorious services. The impugned judgment seems to be in consonance with law. The petitioners at any time can initiate proper disciplinary proceeding, provided they have sufficient material to substantiate any alleged misconduct on the part of respondent No.

1. In the absence of any such material the withholding of respondent No. l's name from being notified for promotion in BS-18 is not warranted by law. Leave to appeal is refused and the petition is dismissed. H.B.T./C-20/S Petition dismissed