1993 PLP (C (PLC(CS))

(b) Minor punishment of forfeiture of approved service. Lastly, his case was considered by the D.P.C. on 27‑12‑1990 but this time again he was superseded on the ground that he had been superseded in the last D.P.C. Meeting held in 1989 due to his indifferent service record and punishment of forfeiture of service as also for the reason that his service record was loaded with punishments, below average reports and adverse remarks about integrity. Consequently, in the impugned Notification dated 16‑1‑1991, the petitioner's mine did not appear in the list of the Inspectors of Police who were promoted as Deputy Superintendents of Police.

2. The petitioner submitted a representation to the Governor Punjab but it was withheld by Inspector‑General of Punjab Police, Lahore on the ground that he was not competent to prefer an appeal or representation to the Home Secretary or Governor under the Police Rules, 1934. Hence this writ petition challenging the notification dated 1.6‑1‑1991 and for modification of the orders dated 19‑7‑1991 and 13‑8‑1991.

3. It is contended that in terms of section 8 of the Punjab Civil Servants Act, 1974, the post of D.S.P. is not a " Selection" post but a "Non‑selection" post and promotion had to be made on seniority‑cum‑fitness. The respondents, as such acted illegally in ignoring the petitioner who had good and satisfactory service record. It is further stated that the respondents have acted perversely in promoting other Inspectors having no better service record than the petitioner. Discriminatory treatment to the petitioner is also alleged.

4. The deferment of the petitioner's case in 1987 and 1988 without assigning any reason is challenged on the ground that since no inquiry was pending against him at that time and his service record was also complete, there was absolutely no reason to defer or postpone his promotion. As regards supersession in 1990 on the ground of (a) Indifferent service record; and (b) Minor punishment of forfeiture of approved service, it is contended that the finding of indifferent service record was not only vague but factually incorrect. In this context, reliance has been placed on Muhammad Ejaz v. I.‑G. Police, Punjab etc. (1991 PLC (C.S.) 244), wherein it was held that indifferent record is too vague a term .and has no legal basis. Likewise, the punishment of foreiture of approved service could also not be taken into consideration, for the petitioner's departmental representation was still pending and the punishment had not become final. It is further stated that minor punishment was, not relevant or bar for the petitioner's promotion, due to him since 1987. In this respect, reliance has been placed on an unreported judgment of this Court passed in Writ Petition No. 3531 of 1990 titled "Ch. Yar Muhammad v. Government of the Punjab etc. (1992 PLC (C.S.) 95)", wherein it was held that minor penalty alone cannot furnish basis for declaring a civil servant unfit for promotion. Policy letter dated 7‑1‑1969 has also been referred to by the learned counsel for the petitioner. It was notified in the said letter that in case the allegations, subject?matter of inquiry were likely to end in a minor penalty, the inquiry should be ignored for promotion. The ground that the petitioner's service record was loaded with punishments and below average adverse entries on integrity is stated to be factually incorrect. No such entry exists in the petitioner's service record, it is added. As regards adverse remarks in the five months A.C.R. for the year 1983, it is submitted that they had not attained finality at the time of the consideration of the petitioner's case for promotion and were later expunged under the orders of the Punjab Service Tribunal.

5. Learned counsel for the petitioner has also relied on a judgment of this Court passed in Writ Petition No.6839/90 titled "Ali Abbas v: I. ‑G. Police etc. (1992 PLC (C.S.) 265)", wherein it was held that punishments awarded subsequent to the due date of promotion are not relevant for the purpose of determination of the fitness of one's promotion. According to him, this view is based on Government policy circular letter dated 7‑11‑1984 as contained in the Establishment Manual, 1987 (Edition). 7 Mr. Farooq Baidar, learned Additional Advocate‑General, Punjab has contested the petition. According to him, the petitioner's case was duly considered by the Departmental Promotion Committee and he was superseded/deferred for genuine reasons and he cannot invoke the jurisdiction of this Court and his remedy lies before the Punjab Service Tribunal. 8 In the report submitted by the Inspector‑General of Police, Punjab, Lahore he has admitted that the adverse remarks recorded in the petitioner's A.C.R: for the period from 16‑4‑1983 to 4‑9‑1983 were expunged by the Punjab Services Tribunal vide order dated 24‑9‑1991 while the punishment of two years approved service was converted into a warning by the I.‑G.P. vide order dated 15‑10‑1991. As regards the petitioner's adverse report for the period from 1‑8‑1990 to 31‑12‑1990 that his health, appearance, turn out and devotion to duty were below average, it is admitted that the Punjab Services Tribunal vide its order dated 27‑11‑1991 passed on the appeal of the petitioner ordered as under: ?Impugned adverse report for the period from 1‑8‑1990 to 31‑12‑1990 may not be used by the appropriate D.P.C. against the appellant for the purpose of considering the promotion to the post of D.S.P. till the decision of this appeal.?

9. Since the question involved in the case is about the petitioner's fitness or suitability for being considered for promotion, the petitioner cannot go to the Punjab Services Tribunal. He has, therefore, rightly invoked the writ jurisdiction of this Court. Mushtaq Hussain Shah v. Director, Food, Lahore Region and others (1990 SCMR 1492) may be cited in this behalf, wherein it was held that the Services Tribunal cannot go into evidence to determine the fitness or otherwise of a civil servant for promotion. The petitioner's supersession on the ground of indifferent service record was not justified as this finding is not only vague but stated to be factually incorrect, as well. Minor punishment of forfeiture of service could also not be used against the petitioner for not having attained finality. The minor penalty of censure of 1981 shall be considered to have been wiped out due to the petitioner's confirmation in 1985. It is also an admitted fact that punishment of forfeiture of the petitioner's service was converted into a warning by I.‑G.P. vide order dated 15‑10‑1991. The petitioner has been treated discriminately vis‑a‑vis his other colleagues whose cases were considered alongwith him. Although they had also been superseded earlier on the ground of having indifferent service record and awarding punishments of censure and forfeiture of approved service etc., beneficial views were taken in their respect.

10. It is true that no civil servant has vested right to promotion or to be appointed against a particular post, the competent authority is, however, under a legal obligation to consider his case fairly, justly and equitably and in accordance with law. It is also a settled proposition of law that for the determination of the fitness of an employee, his such service record should be considered as would have been up to the date of his promotion and that subsequent record not having attained finality should not prejudice such assessment. But in the present case, the aforementioned principles were not kept in view.

11. Consequently, the Writ Petition is accepted and the proceedings of the Departmental Promotion Committee ignoring the petitioner for promotion to the post of D.S.P. for the reasons mentioned by them are declared to be illegal and of no legal effect and are hereby set aside and the respondents are directed to again place his case before the Departmental Promotion Committee for a fresh decision on the question of his promotion as D.S.P. from the relevant date. It is hoped that this exercise will be undertaken at an early date. No order as to costs. A.A/T‑38/L ???? Petition accepted.