2007 PLP 118 (SCMR)

SAIYED SAEED ASHHAD, J.

By this judgment we propose to dispose of Civil Petitions Nos.1311-L to 1324-L of 2006 and 1462-L to 1476-L of 2006 as in all the aforesaid petitions common question of facts and law are involved and the same are directed against the consolidated judgment of Punjab Service Tribunal, Lahore (hereinafter referred to as the "Tribunal") dated 1-7-2006 in Appeals.Nos.2709 to 2720 and 2892 to 2895 of 2005.

2. Facts relevant for disposal of the above petitions are that 23 vacancies of Kanungos existed in the year 2002 in District Rajanpur which were to be filled in by promotion from amongst the Patwaris working in the District. A meeting of Departmental Promotion Committee (hereinafter referred to as the "DPC") headed by District Officer (Revenue) was held on 26-8-2002 for considering 170 Patwaris for promotion as Kanungos. The DPC fixed the following conditions for determining the eligibility for promotion: "(a) Clearance of departmental examination; (b) Completion of service book; (c) Completion of ACRs; (d) Clearance of Anti-Corruption cases; (e) Clearance from Departmental inquiries; (f) Clearance from any other objection.

3. On the basis of the above conditions 43 Patwaris were found eligible for promotion as a large number of senior Patwaris were not found eligible for the reason that they had not cleared the departmental examination and were superseded. Ultimately out of the 43 Patwaris 18 were not considered on the ground that their record was not complete. On the very same day i.e. 26-8-2002 orders for promotion of 23 Patwaris were issued, in pursuance whereof they took the charge of Kanungos. A large number of senior Patwaris who were not considered by the DPC feeling aggrieved filed representations before the District Coordination Officer Rajanpur (hereinafter referred to as the "DCO") who vide his, order, dated 11-9-2002 withdrew the orders of promotion of 23 Patwaris. The promoted Patwaris feeling aggrieved and dissatisfied with the order of DCO approached Senior Member Board of Revenue (hereinafter referred to as the "Senior Member") for intervention. The Senior Member vide order, dated 26-11-2002 set side the orders of DCO, as it was not found that he did not have the authority to withdraw the promotion orders and directed the aggrieved Patwaris to file appeal before the Executive District Officer (Revenue) Rajanpur (hereinafter referred to as the "EDO"). The superseded Patwaris failing to obtain favourable order from EDO vide his order, dated 1-2-2003 approached the Tribunal by filing various appeals. The Tribunal observed that DPC had wrongly fixed the criteria/conditions for passing departmental examination for the Patwaris for consideration for promotion to the posts of Kanungos and erred in not considering the deferred/superseded Patwaris on this account for promotion. The Tribunal by consent of the parties remanded the case to the concerned authorities to examine the cases of superseded Patwaris and others for promotion to the post of Kanungos in accordance with law and the rule relative to such promotions.

4. In pursuance of the above order of the Tribunal a new DPC was constituted headed by EDO and in its meeting held on 12-4-2005 found only 12 Patwaris who fulfilled the prescribed criteria for promotion as Kanungos. Subsequently, order of promotion of 12 Patwaris was passed on 2-8-2005. Another order was passed on 2-8-2005 by the EDO directing that all the Patwaris including 21 out of the 23 Patwaris who had been promoted earlier but were deferred in the DPC held on 12-4-2005, would draw the pay of Patwaris and not of Kanungos. The said 21 Patwaris feeling aggrieved and dissatisfied approached the Tribunal for redress of grievances. These appeals were disposed of vide order dated 1-7-2006 whereby the appointments of 12 Patwaris as Kanungos promoted on the recommendations of the DPC in its meeting dated 12-4-2005 was declared as officiating promotion; the order in respect of 21 out of 23 Patwaris earlier promoted deferring their cases was held to be without reasons; and the cases of all the Patwaris for regular promotion as Kanungos were to be placed in the meeting of DPC once again for consideration on regular basis strictly in accordance with the Rules of seniority-cum-fitness. It was also observed that their cases would not be deferred or they would not be ignored on the ground that their service record is not complete or some of their ACRs are not countersigned. This exercise was to be completed within 120 days.

5. The appellants in both the sets of appeals feeling aggrieved and dissatisfied with the order dated 1-7-2006 of the Tribunal have filed the above petitions for leave to appeal.

6. We have heard the arguments of Hafiz Tariq Naseem, Advocate Supreme Court in Civil Petitions Nos.1311-L to 1324-L of 2006 and Mr. Riaz Kayani, Advocate Supreme Court in Civil Petitions Nos.1462-L to 1476-L of 2006.

7. Hafiz Tariq Naseem submitted the following arguments in support of Civil Petitions Nos.1311-L to 1324-L of 2006:

(i) that in the previous round of litigation amongst the petitioners (23 promoted Patwaris) and private respondents (the deferred/superseded 147 Patwaris) petitioners' promotion order, dated 26-8-2002 was challenged before the Punjab Service Tribunal but the said order was never set aside or declared illegal and the 23 promoted Patwaris continue to be legally promoted Kanungos; (ii) that even otherwise the order dated 26-8-2002 whereby the 23 Patwaris were promoted to the post of Kanungos having been implemented in letter and spirit the same could not be withdrawn or rescinded in view of the well-settled principle of locus poenitentiae; (iii) that the impugned order dated 26-8-2002 amounted to demotion of 23 promoted Patwaris and if at all the same could be recalled or rescinded, such action could not have been taken without providing an opportunity of hearing to them.

8. Mr. Riaz Kayani, Advocate Supreme Court for the petitioners in Civil Petitions Nos.1462-L to 1474-L of 2006 raised the following arguments in support of the petitions:-- (a) that the criteria/conditions laid down by the DPC in the meeting which took place on 26-8-2002 were against the provisions of law; (b) that the DPC erred in holding that passing of departmental examination and completion of training was necessary requirements for promotion of Patwaris to the post of Kanungos; (c) that the superseded Patwaris were penalized for no fault of their as they had no part to play in maintenance of service record and writing of ACRs; (d) that the said superseded Patwaris were neither found to be inefficient nor their integrity was doubted and were left out of consideration for promotion without any just cause and in an arbitrary manner causing them serious prejudice and legal injury.

9. We have considered the arguments and have perused the record. In determining the fitness of Patwaris for promotion to the posts of Kanungos, the DPC in its meeting dated 26-8-2002 had laid down criteria/conditions for eligibility for such promotion and one of the conditions was clearance of departmental examination. From perusal of Punjab Revenue Department (Revenue Administration Posts) Rules, 1990 (hereinafter referred to as the "Rules") the posts of Kanungos are to be filled in by promotion from amongst the Patwaris who have put in three years of service on the basis of seniority cum fitness. Column 10 of the Schedule to the Rules provide passing/clearance of departmental examination and completion of training for confirmation as Kanungos and not for promotion to the posts of Kanungos. Consequently DPC had illegally laid down the condition of passing of departmental examination for promotion of Patwaris to the post of Kanungos. This has resulted in ruling out of consideration 147 Patwaris out of a total 170 Patwaris for promotion as Kanungos for no fault of theirs as there were neither any adverse entries about their competence and efficiency nor their integrity or honesty was in doubt. Majority of 147 Patwaris were senior to the 43 Patwaris who were found eligible for promotion and the 23 Patwaris who were declared fit for promotion and were promoted in complete disregard of the time honoured principle requiring promotions on the basis of senior-cum-fitness.

10. With regard to the contention of Hafiz Tariq Naseem that the order of promotion of 23 Patwaris dated 26-8-2002 was never set aside by any authority including the Tribunal, therefore, those 23 Patwaris would be deemed to continue to hold the post of Kanungos with effect from the date of order and that in the order dated 2-6-2003 passed by the Tribunal in the appeals filed by the effected Patwaris the same was not set aside, withdrawn or recalled, it is to be observed that the order of the Tribunal dated 2-6-2003 was passed by consensus of the parties which included petitioners and some of the respondents (including 23 Patwaris who were promoted vide order, dated 26-8-2002) wherein it was agreed by the parties that a fresh DPC could be convened to examine the cases of promotion of the effected Patwari to the posts of Kanungos with complete independence, uninfluenced by any judgment, or order passed previously. In the concluding part of the judgment, a direction was given to the Departmental Promotion Committee to convene a meeting within four months for promotion of the affected Patwari and others to the post of Kanungos. It will be appropriate to reproduce relevant paras. From the judgment of the Tribunal dated 2-6-2003 as under:-- "

8. During the course of arguments, a consensus was adopted by the learned counsel for the appellant, District Attorney and the counsel for the private respondents that DPC shall examine the case of the appellants for promotion from the post of Patwaris to the post of Kanungos with complete and absolute independence, unaffected by any order or a judgment passed previously. ACRs and service record shall also be considered on its own merit, without being, prejudiced by its previous decision.

9. It is observed that the Departmental Promotion Committee shall score out of condition of passing of the examination of Kanungo by the Patwaris as the rules were subsequently, amended, details given in the preceding paragraph of this judgment, and shall not form part of the criteria, which shall come up for consideration on merit policy. The Departmental Promotion Committee shall be convened within a period of four months from today for consideration of the promotion of the appellants and others to the post of Kanungos."

11. From bare perusal of the above para. it may be noted that the observations made therein clearly and without any ambiguity lead to an irresistible inference that the order of promotion dated 26-8-2002 was cancelled or set aside and the cases of the affected Patwaris as well as those of the 23 promoted Patwaris for promotion to the post of Kanungos were also to be considered afresh. Such inference has to be drawn because promotion of 23 Patwaris was on the basis of the DPC wherein a large number of Patwaris, majority of them senior to the 23 promoted Patwaris were not considered for promotion on the ground of not having passed the departmental examination which was not a condition or requirement for promotion from the post of Patwaris to Kanungos and the grievance of the aggrieved Patwaris would not be redressed effectively unless order dated 26-8-2002 promoting 23 Patwaris illegally was withdrawn, rescinded or cancelled, as in continuation of the said order, the senior most Patwaris out of the aggrieved Patwaris, if found fit for promotion, would not get their seniority over the said 23 promoted Patwaris. To do complete justice to the aggrieved Patwaris it was necessary that the order of promotion of 23 Patwaris be set aside. This contention also carries no weight on another ground that is the order of promotion dated 26-8-2002 was an illegal order as it had wrongly not considered or deferred the aggrieved Patwaris on a ground which was not a condition for their eligibility for consideration for promotion to the post of Kanungos. Majority of affected Patwaris were ruled out of consideration not because of their efficiency, integrity or lack of knowledge and capability but on the ground of incomplete record and non-availability of the ACRs for which they were not in any manner responsible and could not have been punished, therefore, on the basis of the above fact the Departmental Promotion Committee in its meeting dated 12-4-2005 was justified in treating the 23 promoted Patwaris as Kanungos as Patwaris and to consider their cases for promotion to the post of Kanungos along with the cases of the aggrieved Patwaris. In doing so, the DPC did not commit any illegality.

12. It may be noted that no vested right was created in favour of the promoted Patwaris to continue to hold the post of Kanungos on regular basis as it has already been observed above that their promotion was not in accordance with law and was illegal thus, not conferring any right on them to claim that since 26-8-2002 they had been promoted on regular basis, they continued to hold the post of Kanungos on 12-4-2005 when DPC in pursuance of the judgment of the Tribunal dated 2-6-2003 was convened and therefore, there was no occasion or question of their being considered for promotion to the posts of Kanungos. It is pertinent to note that vide order dated 19-1-2005 a seniority list of Patwaris was prepared and placed before the DPC for considering their cases for promotion to the post of Kanungos. This list contained the names of 23 promoted Patwaris. The petitioners had assailed the inclusion of their names in the seniority list before Lahore High Court, Multan Bench by a writ petition which was dismissed and Civil Petition for Leave to Appeal against the said order of dismissal filed in this Court was withdrawn.

13. In the subsequent meeting of DPC dated 12-4-2005, the DPC after considering the cases of all the Patwaris observed that 12 Patwaris from amongst the Patwaris mentioned in the merit list were found to fulfill the prescribed criteria for promotion. This order had declared only 12 Patwaris eligible for promotion solely on the ground that their service record was complete and satisfactory. These 12 Patwaris, some of whom were from amongst the 23 Patwaris, who were promoted earlier vide order, dated 26-8-2002, were not the senior most Patwaris and the DPC in its fresh meeting again deferred the cases of large number of Patwaris on the ground that their ACRs were not countersigned. The deferred Patwaris including 2 out of the 12 promoted Patwari, who claimed seniority as Kanungos with effect from 26-8-2002 filed appeals before the Tribunal.

14. The Tribunal in disposing of the appeals filed by the deferred/aggrieved Patwaris and 2 out of the 12 promoted Patwaris had examined, and considered in minute details the grounds and the factors which the Departmental Promotion Committee is required to take into consideration while deciding the cases of promotion of civil servants and observed that the recommendations/order of DPC in its meeting dated 12-4-2005 revealed that the Committee had not proceeded in strict observance of law and rules and further that its recommendations were also not based on discussion and analyses of the case of every Patwari. It will be advantageous to reproduce the relevant portion from the judgment of the Tribunal dealing with the issues/questions involved in these petitions; they are as under: "I have gone through the minutes of the meeting dated 12-4-2005 of DCP, I find that the DPC took the following decision in respect of 12 Patwaris. The committee has unanimously considered the cases of the appellants and others as desired by the different, Courts. The decision of the committee is impartial, independent and transparent in all respects. None of the case is missing. The detailed final list containing eleven pages of Patwaris/merit list is attached. As per merit list the twelve Patwaris have fulfilled the prescribed criteria for promotion". I find that this was not the way to declare 12 persons/Patwaris as fit for promotion. The DPC only declared them eligible for promotion on the ground that their service record was complete/satisfactory. The DPC was supposed to discuss and analyze each and every case while recommending or not recommending him for promotion DPC was also supposed to declare the concerned Patwaris in the seniority list as clearly fit for promotion and not just to declare them to be fulfilling the prescribed criteria. I have seen the merit list of Patwaris the DPC had considered for promotion. Out of 170 names in the list 134 were deferred largely on the ground that their service record/ACRs were not complete. The DPC treated the appellants (i.e. those appellants who were deferred) in the same way. For instance, the appellant Zahid Hussain was deferred on the ground that his ACRs for the period from 1980 to 2001 were not countersigned. Appellant Hazoor Bakhsh was also deferred on the same ground. Appellant Shahab-ud-Din was also deferred on the same ground. Appellant Aziz Ullah was also deferred on the same ground. Appellant Saeed Ahmad was also deferred on the same ground Appellant Muhammad Iqbal was also deferred on the same ground. Now, if the DPC contemplated that this deferment of the appellants, was temporary, then the authorities were not supposed to direct for reversion of the appellants and to ask them to draw pay as Patwaris. I find that when promotion cases of civil servants are considered, the concerned DPC, either recommends promotion of those who are senior and fit or, defers some civil servants if their service record is not complete, for the time being (they have to be considered very soon again), but they are not deprived of their seniority. In cases where service record is not satisfactory, they are passed over/ignored. In this case, DPC deferred 134 Patwaris in its latest exercise. The DPC was required to consider all senior most Patwaris in suitable proportion, to the number of vacancies of Kanungos and if service record of some of the Patwaris was not complete, they should have been promoted on officiating basis subject to completion of their service record which was in fact the responsibility of the department and not of the concerned civil servants. I, therefore, find that even the latest decision taken by the DPC and also by the authority suffers from infirmities. The DPC has also not clearly declared any Patwaris as fit for promotion. It has only declared the private respondents and also two of the appellants, as eligible for promotion. Similarly, the DPC has also not declared the appellants unfit for promotion. It has deferred their cases on the ground that their ACRs were not countersigned. In the light of above detailed discussion the factual position emerges as follows. Private respondents who have been now promoted (from 2-8-2005) cannot be considered to be promoted on regular basis because cases of their seniors (including appellants) had been deferred on shallow ground i.e. some of their ACRs not having been countersigned or some missing ACRs. They cannot be considered to have been ignored or superseded in promotion. Their claim for promotion as Kanungo remains alive. Therefore, considering the above fact, promotion of private respondents (including two appellants, namely Dilshad Ali and Muhammad Sajjad Naseer) is declared as officiating promotion. Appellants, excluding Dilshad Ahmad and Muhammad Sajjad Naseer, are declared to have been deferred without valid reasons. Completion of service record is the exclusive responsibility of the concerned department. These appellants shall, therefore, be allowed to continue to hold the posts of Kanungos (subject to vacancies) in their on pay scale (pay scale of Patwari). The cases of the appellants as well as of private respondents for regular promotion as Kanungos, shall be placed in the meeting of DPC once again and they shall be considered for regular promotion strictly in accordance with rule of seniority-cum-fitness. Their cases shall not be deferred and they shall not be ignored for promotion on the ground that their service records was not complete or some of their ACRs were not countersigned. The concerned department is given 130 days to complete the record and to hold meeting of DPC, soon thereafter. If ACRs of any of the appellants/private respondents were still found missing, the same shall be considered as average ACRs and their cases will be considered for promotion accordingly."

15. From a bare perusal of the aforesaid passages reproduced from the judgment of the Tribunal, it is crystal clear that the Tribunal had adverted to all the issues involved in the case for coming to a just decision. It has assigned satisfactory and plausible reasons for its decision. The discussion of the Tribunal on the material questions, issues and aspects of the case provide complete answer to all the contentions advanced before us by the learned counsel for the parties which have been incorporated in the earlier part of the judgment. The observations made and conclusion arrived at by the Tribunal cannot, in any way, be said to be against the law, rules and practice relating to the promotion of civil servants and has provided ample and equal opportunities to all the aggrieved parties for reconsideration of their cases for promotion to the posts of Kanungos by the DPC in a fresh meeting wherein the DPC would consider the cases of all the aggrieved Patwaris strictly in accordance with law and the observations made by the Tribunal in its impugned judgment.

16. For what has been stated above, the contention advanced by Hafiz Tariq Nasim, Advocate Supreme Court appears to be absolutely contrary to the facts of the case as well as the law and rules applicable to the present case. His contention that the order of promotion dated 26-8-2002 continues to remain in force as it was never rescinded, recalled or withdrawn is without any substance as the same had been rescinded/set aside by consent of all the above parties by the Tribunal vide order, dated 2-6-2003 as held hereinabove. In view of this his further contentions would appear to be absolutely baseless and without any substance not worthy of consideration.

17. For the foregoing facts, discussion and reasons it is established that no injustice or prejudice has been caused to any of the parties and their cases of promotion will be decided strictly in accordance with law which was not done on two previous occasions when law and rules to be followed as well as the procedure to be adopted for considering their cases for promotion to the post of Kanungos was not complied with and adhered to.

18. The judgment of the Tribunal is a just and fair judgment providing substantial justice to all aggrieved/affected parties and does not require to be interfered with. Accordingly, these petitions are found to be without any merit and are dismissed, leave to appeal refused. M.H./Z-13/SC???????????????????????????????????????????????????????????????????????? Petition dismissed.