1988 PLP (C (PLC(CS))

CH. ABDUL RASHID, (MEMBER).‑‑This is an appeal filed by Mr. Jahan Khan, Deputy Superintendent of Police, Minchinabad against the order of the Home Secretary, Punjab conveyed by the Inspector General of Police, vide his Memo dated 19‑3‑1986. The Inspector General of Police, Punjab and Home Secretary, Punjab have been impleaded as respondents. The appeal was filed on 4‑5‑1986 and admitted to regular hearing on 1‑9‑1986.

2. The facts of the case are that the appellant was given the following relief in the Appeal No.510/520 of 1983 filed by him before this Tribunal:‑ "

12. The upshot of the above analysis of the case is that the appeal of the appellant is accepted and he is deemed to be admitted to List 'F' w.e.f. 30‑12‑1975, the date from which his juniors were so admitted. We set aside the impugned seniority list dated 6‑5‑1982 in so far as it relates to the appellant and the contesting respondents. Thus, the appellant shall remain senior to the contesting respondents." As a result of this the respondent No.l issued order dated 7‑11‑1984 whereby the appellant's admission to promotion list 'F' was ante‑dated from 11‑11‑1976 to 30‑12‑1975 and he was declared senior to Mr, Iftikhar Hussain with consequential promotion as Inspector from 24‑6‑1976. The appellant has also been promoted by Government to the post of Deputy Superintendent of Police vide Home Department Notification dated 26‑6‑1985. The appellant submitted a representation to the Inspector‑General of Police, Punjab requesting for proforma promotion as Deputy Superintendent of Police from 20‑2‑1984, the date on which his junior Mr. Iftikhar Hussain was promoted as Deputy Superintendent of Police and also fixation of seniority in the list of Deputy Superintendents of Police above Mr. Iftikhar Hussain. The Inspector‑General of Police, Punjab referred his case to the Government. The Home Secretary and Chairman, Departmental Promotion Committee, Government of the Punjab passed the following order:‑ "Pro forma promotion cannot be claimed as right by any Government servant. The request of Mr. Jahan Khan, Deputy Superintendent of Police for the grant of pro forma promotion is, therefore, rejected." Aggrieved by this order, the appellant has preferred the present appeal.

3. The counsel for the appellant has invited our attention to the policy letter of the Services, General Administration and Information Department, Government of the Punjab dated 16‑10‑1973 on the subject of 'Grant of pro forma promotion'. The said letter says that: "it will have to be ensured that pro forma promotion is given only in cases where it is justified on compulsive grounds as illustrated below:‑ "Pro forma promotion is generally granted in the typical cases mentioned below: ‑ (i) The seniority of two officials is in dispute. The senior official is promoted on due date but subsequently the junior official establishes his claim of seniority by obtaining a favourable decision from Government or the Civil Services Appellate Tribunal. " In this type of case, "pro forma promotion would be justified provided it could be held on the basis of service record and performance of the official that he would certainly have been promoted on the due date but for the circumstances that he was incorrectly treated as junior" ."In such cases his fitness for promotion should not be considered in isolation but in comparison with other officials who would have been considered alongwith him. Pro forma promotion should be granted only when the grounds constituting merit are certain and the fitness of the official for promotion in comparison with other officials is beyond doubt." The learned counsel for the appellant has vehemently pleaded that the case of the appellant is completely covered by this policy.

4. It is contended that at the time when his junior was promoted as Deputy Superintendent of Police w.e.f. 20‑2‑1984 the appellant was denied consideration alongwith him simply because the respondents wrongly considered him senior than the appellant. Therefore, it was no fault of the appellant that he was wrongly considered/ placed junior to Mr. Iftikhar Hussain and was denied promotion for that reason. The respondents should have rectified their wrong later on when appellant's seniority was restored. When basic seniority has been restored then material benefit of restoration of seniority, in higher grade cannot be denied to the appellant in the form of promotion which the appellant would have achieved had the seniority been fixed correctly in the first instance. The counsel for the appellant has further argued that since the appellant has already been considered fit for promotion as Deputy Superintendent of Police in 1985, he was fit for promotion in 1984 when his junior was promoted as such. The counsel for the appellant has placed reliance on the following judgments: ‑ (a) Punjab Service Tribunal in case of Mr. Manzoor Hussain Jaffery reported as P L C 1981 (C.S.) 922. (b) Supreme Court of Pakistan in the cases of Arshad Hussain Shah and Mushtaq Ahmad Warraich, Inspectors P L D 1985 SC 159. (c) Punjab Service Tribunal in case of Amanullah Khan, Inspector Police. (d) Punjab Service Tribunal in Case No.234/669/86, No.12/543/86and No.81/69 of 1985. It has been prayed that the impugned order dated 19‑3‑1986 may be set aside and respondents be directed to consider the appellant for promotion for the post of Deputy Superintendent of Police with effect from 20‑2‑1984 i.e., the date from which his junior was promoted as Deputy Superintendent of Police. The learned District Attorney has adopted the parawise comments of Respondents Nos.l and 2 as his defence. It has been contended that the case of the appellant for promotion to the post of Deputy Superintendent of Police was considered in the Departmental Promotion Committee's meeting held on 7‑3‑1985 and approved. Accordingly, he was promoted to the rank of Deputy Superintendent of Police vide Notification dated 26‑6‑1985. As a result of appellant's promotion to the post of Deputy Superintendent of Police his grievance has been met with. However, the request of the appellant for pro forma promotion was considered to be without merit and as such pro forma promotion cannot be claimed as of right by a civil servant.

5. The contention of the appellant that his case for pro forma promotion as Deputy Superintendent of Police was not placed before the Departmental Promotion Committee for no fault of his has not been controverted by the respondents.

6. The material issues which need examination in this appeal are:‑ (a) Whether the appellant has a right to be considered for pro forma promotion as Deputy Superintendent of Police from the date his Junior was promoted as such? and (b) Whether the consideration given by the Home Secretary and Chairman, Departmental Promotion Committee is enough for the purposes of the relevant Rules?

7. According to the Punjab Deputy Superintendent of Police Service Rules, 1979, the post is to be filled by promotion on the basis of seniority‑cum‑fitness from among the Inspectors borne on the select list to be prepared by the Inspector‑General of Police for the purpose. The provision regarding promotion as contained in section 8 of the Punjab Civil Servants Act 1974 is as follows: 8. (1) A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a higher post for the time being reserved under the rules for departmental promotion in any service or cadre to which he belongs. (2) A post referred to in subsection (1) may either be a selection post or a non‑selection post to which promotion shall be made as may be prescribed:‑ (a) in the case of a selection post, on the basis of selection on merit; and (b) in the case of a non‑selection post, on the basis of seniority cum‑fitness. The relevant Rules governing promotion as contained in the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, are reproduced below:‑ 9. (1) Appointments by promotions or transfer to posts in various grades shall be made on the recommendations of the appropriate Committee or Board. (2) Promotion including pro forma promotion shall not be claimed as of right by any civil servant.

10. Only such persons as possess the qualifications and meet the conditions laid down for the purpose of promotion or transfer to a post shall be considered by the Selection Authority. The following provision of the Punjab Service Tribunal Act, 1974 is, also relevant regarding our jurisdiction:‑ "Section 4(1) . Provided that (a) ........... (b) 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 a higher grade." The instant case is of promotion on the basis of seniority‑cum‑fitness. Seniority is an important factor in this case and cannot be ignored by the competent authority while making promotions. A junior can only be promoted if the senior is not considered fit for promotion or the latter's case is deferred due to some valid reasons. The change in the seniority position of an official in the higher cadre takes place only when the senior and junior are considered at the same time and the senior is superseded while the junior is considered fit and is promoted. The senior in this event loses seniority. The material benefit of seniority is promotion when there is a vacancy meant for promotion and the competent authority decides to fill it. For so long as the authority does not decide to fill it or the junior of an official is not promoted, the civil servant has no right to claim promotion as of right. But once his junior is considered or promoted, he has a claim to be considered; otherwise it will be a case of discrimination vis‑a‑vis his junior. The judgment as to his fitness or otherwise is left to the competent authority and cannot be challenged before this Tribunal.

8. On the basis of above reasons it is our considered view that in the said circumstances, it is the right of the civil servant to Clair, consideration for promotion. His case has necessarily to be considered by the Selection Authority and decision taken. In the instant case, the seniority claim of the appellant against Mr. Iftikhar Hussain and 66 others was under adjudication before the Tribunal when Mr. Iftikhar Hussain was given promotion as Deputy Superintendent of Police. Since the appellant has been declared senior to Mr. Iftikhar Hussain and is on the promotion list 'F', we agree with the learned counsel for the appellant that his claim for pro forma promotion is covered by the policy of the Government as detailed in para 3 above and he should have been considered for pro forma promotion from the date his junior has been promoted as Deputy Superintendent of Police.

9. Now we turn to examine the second issue whether the consideration given by the Home Secretary and Chairman, Departmental Promotion Committee is enough for the purposes of the Rules or the case should have been placed before the Departmental Promotion Committee. According to section 8 of the Punjab Civil Servants Act. 1974 promotion shall be made as may be prescribed by Rules. According to Rule 4(6) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules 1974, a Departmental Promotion Committee shay make selection for appointment to posts by promotion in Grade 17 and below. According to Rule 9(1) Supra appointments by promotion; shall be made on the recommendations of the appropriate Committee or 'Board. According to Rule 5 Supra "Where an appointing authorit4 other than the Chief Minister does not accept the recommendations of a Committee or a Board, it shall accord reasons thereof and obtain orders of next higher authority and act accordingly." The post Deputy Superintendent of Police is in BPS‑17 and according to Rule 6 ibid, the Administrative Secretary i.e. the Home Secretary is the, appointing authority for this post. The consideration by then Departmental Promotion Committee is, therefore, mandatory and Home Secretary by himself is not competent. Since in the present case the recommendations of the Departmental Promotion Committee have note been obtained, the impugned order by the Home Secretary and Chairman, Departmental Promotion Committee is incompetent and ultra vires of the Rules. We, therefore, set it aside.

10. The upshot of the above discussion is that the appeal succeeds. We direct the Respondents to place the case of the appellant before; the Departmental Promotion Committee for consideration of his case; for pro forma promotion as Deputy Superintendent of Police from the date on which his junior, Mr. Iftikhar Hussain was promoted as Deputy Superintendent of Police and take further necessary action it accordance with the provisions of the relevant Rules in the matter. A.A./180/Sr.P Appeal accepted.