2005 PLP (C (PLC(CS))

‑‑‑‑S.9‑‑‑Sindh Service Tribunals Act (XV of 1973), 5.4‑‑‑Promotion‑‑ Entitlement‑‑‑Appeal before Service Tribunal‑‑‑Respondent, despite being junior to appellant was promoted and appellant was ignored for the sole reason that he earned adverse remarks in his Annual Confidential Report for the relevant year‑‑‑Said adverse remarks communicated to appellant, had already been expunged by Authority concerned during pendency of appeal filed by appellant‑‑‑Very basis on which appellant was deferred by Departmental Promotion Committee, having disappeared, case of appellant was remitted to Departmental Promotion Committee for reconsideration afresh for promotion, in accordance with law. Rauf Ahmad v. Govt. of Punjab and others, 1984 PLC (C. S.) 207 ref. ‑‑‑‑S.9‑‑‑Promotion‑‑‑Effect of adverse remarks‑‑‑On date when meeting of Departmental Promotion Committee was held to consider promotion alleged adverse remarks against employee, were not communicated to employee, but were communicated later on‑‑‑Decision of Departmental Promotion Committee superseding employee for promotion despite being senior to co‑employee who was considered and promoted, was patently wrong, rather illegal and was not in accordance with law‑‑‑If adverse remarks were not communicated or if so communicated, there was no, record of their having been communicated and acknowledged by concerned officer, such adverse remarks should be ignored and could not be taken into consideration to decline promotion. Muhammad Farooq v. The Province of Punjab and others, PLD 1987 SC 271 ref. JUDGMENT JUSTICE (RETD.) ABDUL GHANI SHAIKH (CHAIRMAN)

Briefly stated, the facts of present appeal are that appellant was appointed as Inspector (B‑14) in Refrigeration and Air‑Conditioning Technology in April, 1990 by Labour and Manpower Department. In a, seniority list as stood on 31‑12‑2000 (circulated in June, 2001) appellant's name was at Serial No.4 while the name of private Respondent No.1 was at Serial No.5. In April 2003, meeting of the Departmental Promotion Committee was convened, which recommended three of appellant's senior so also private Respondent No.4 who was junior to appellant for promotion to the post of Senior Instructor (B‑16) while appellant was ignored. Such notification was issued on 22‑4‑2003, which the appellant challenged in his departmental representation but no final decision, was taken within stipulated period. Hence, this appeal.

2. Heard learned counsel for the parties and perused the record.

3. The sole reason for non‑consideration the appellant's name for promotion was that he earned adverse remarks in his Annual Confidential Report for the year, 2000. The said adverse remarks communicated to the appellant through letter dated 17‑5‑2003, an appellant's representation has already been expunged by Respondent No.3 during the pendency of this appeal as per letter dated 10‑10‑2003 placed on record by official respondents. Therefore, the very basis on which appellant was deferred by the Departmental Promotion Committee, has disappeared. In a case of Rauf Ahmad v. Govt. of Punjab and others, 1984 PLC (C.S.) 207, it has been held that the material on the basis of which officer was superseded when no longer existed, supersession must go.

4. It is pertinent to mention here that meeting of Departmental Promotion Committee was held in the month of April, 2003 and admittedly by that date adverse remarks were not communicated to him which were later communicated through letter dated 17‑5‑2003, therefore, the decision of the Departmental Committee superseding appellant was patently wrong rather illegal and was not in accordance with law. In the case of Muhammad Farooq v. The Province of Punjab and others, PLD 1987 SC 271, it was held that if the adverse remarks, are not communicated or if so communicated, there is no record of their having been communicated and acknowledged by the concerned officer such adverse remarks should be ignored and could not be taken into consideration to decline promotion.

5. For the foregoing reasons, the appeal is accepted and the case is remitted to the Departmental Promotion Committee for the Directorate of Manpower and Training for re‑consideration of appellant's case afresh for promotion to B‑16 in accordance with law and the observations made hereinabove. No order as to costs.

6. Announced in open Court. H.B.T./29/KST Appeal accepted.