2009 PLP (C (PLC(CS))

MOAZZAM HAYAT (MEMBER).

Appellant Muhammad Saleem Malik joined the Agricultural Development Bank of Pakistan as an Assistant. Respondents Muhammad Mehr Nawaz, Sajjad Ahmad, Khalil Ahmed and Muhammad Rafique were junior to him. They were promoted as Senior Assistants w.e.f. 1-1-1994 vide Office Memo dated 10-3-1994. The appellant was not promoted. He was finally promoted as Senior Assistant w.e.f. 1-1-1999 vide order dated 19-5-1999. He claimed promotion w.e.f. 1-1-1994 and for that he filed a departmental appeal on 15-10-1999 which was rejected on 10-11-1999. The appeal rejection order was conveyed to him on 18-11-1999. The present appeal was filed by him on 13-12-1999. It appears that the appellant was not promoted w.e.f. 1-1-1994 due to adverse entries in his service record. It is prayed by him in his present appeal that the adverse remarks recorded in his reports be expunged and the respondent-Bank be directed to grant him promotion w.e.f. 1-1-1994 instead of 1-1-1999 by modifying the aforesaid order dated 19-5-1999, with all back benefits.

2. The appeal is resisted by the respondents. It is submitted that appeal under section 4 of the Service Tribunals Act, 1973 is not competent against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to higher grade. On merits it is submitted that the appellant was not promoted in the year 1994 as his ACRs for the years 1992 and 1993 contained adverse remarks relating to this `behaviour' `efficiency' and `reliability'. According to the respondents the appellant was considered for promotion but he was not found fit for promotion in view of his adverse record.

3. We have heard the learned counsel for the appellant and have also perused the record. The respondents are not present despite notice. Ex parte orders are passed against them. We have, however, seen the reply filed on behalf of respondents.

4. The adverse remarks for the years 1991, 1992 and 1993 were conveyed to the appellant vide letters dated 13-12-1992 and 9-12-1993. The appellant did not file any appeal in any judicial forum for expunction of these remarks within the stipulated period. The present appeal so far as it relates to the expunction of adverse remarks is hopelessly time barred.

5. The appellant was not promoted as he had earned adverse remarks. In the presence of these adverse remarks he could not be promoted. Since the appeal of the appellant for expunction of adverse remarks is held to be time-barred, therefore, these remarks shall remain on the service record of the appellant. Because of these remarks he cannot claim promotion w.e.f. 1-1-1994. Even otherwise promotion is not a right. To be considered for promotion is a right. It has transpired from the record that appellant was considered but was not found fit for promotion. It was within the competence of the respondents to decide the fitness of the appellant for his promotion to the higher grade. Against the decision of the respondents by which the appellant was not found fit for promotion the present appeal is not competent. Proviso (b) of Section 4 of Service Tribunals Act, 1973 clearly says that no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to higher grade. In view of this very clear law we hold that the present appeal is not competent.

6. A great deal has been said that the adverse remarks could not be sustained as they were mala fide and were conveyed to the appellant beyond the prescribed period. As held above the appeal of the appellant for expunction of remarks is hopelessly time-barred. We are, therefore, not prepared to give our findings on the said arguments advanced by the appellant. Even otherwise to establish mala fides very strong evidence is required. The allegation of mala fides is to be substantiated with reality and the averments in this regard made in the memo of appeal are not to be based on myriad of speculations.

7. It is lastly argued on behalf of the appellant that since he was promoted on 1-1-1999, therefore, on the principle governing pro forma promotion he should be deemed to have been promoted w.e.f. 1-1-1994. This argument is legally not tenable. The appellant was considered and ignored for promotion. Pro forma promotion is granted only when promotion is deferred. It is not granted when a Civil Servant is superseded because of the adverse service record.

8. In the above circumstances we find no merit in this appeal which is hereby dismissed.

9. There shall be no order as to costs. Parties be informed. H.B.T./M-50/FST Appeal dismissed.