2014 PLP (C (PLC(CS))

ABDUS SATTAR ASGHAR, J./Member.

This appeal under section 5 of the Punjab Subordinate Judiciary Service Tribunal Act, 1991 is directed against the order dated 18-11-2004 and notification dated 3-7-2004 passed by the respondent.

2. The brief facts leading to this appeal are that the appellant was appointed as Civil Judge in the year 1972 and retired as District and Sessions Judge (BS-20) on 16-3-2004 attaining the age of superannuation. Lahore High Court/the respondent vide Notification No.125/RHC/D&SJJ dated 3rd July, 2004 (to be called hereinafter as 'the impugned notification') granted selection grade BS-21 w.e.f. 9-12-2000 in favour of twenty-one District and Sessions Judges including the appellant's junior colleagues ignoring the appellant. Being aggrieved of the impugned notification the appellant lodged a representation dated 4-8-2004 to the respondent which has been declined vide impugned order dated 18-11-2004 received by the appellant on 22-11-2004, hence this appeal.

3. Appellant appearing in person argued that the impugned order is passed illegally ignoring his seniority and unblemished service record, eligibility, equity against law and facts which is arbitrary, capricious, devoid of any reason and principle of natural justice and liable to be set aside; that appellant bears consistent unblemished judicial career with devotion, integrity and hard work and that the learned Authority/ respondent had no reason to ignore the appellant for grant of selection grade in BS-21 causing serious miscarriage of justice.

4. Respondent in its written statement contended that the appellant in his ACR for the period of 1-1-1980 to 1-6-1980 in the column of pen picture earned the remarks "Tactless in dealing with subordinates"; that in his ACR for the period of 1-1-1989 to 1-8-1989 in the column of pen-picture he earned the remarks "while allowing bails in capital offences he exceeds the limits of propriety that is why I have placed him in category 'C' in the column of analytical ability"; that in the ACR for the period of 1-1-1991 to 31-12-1991 appellant was also advised "to work hard and to improve his relationship with his superior colleagues and subordinates" however on appellants' representation for expunction of above said remarks the same were treated as advisory vide order dated 25-3-1997. In the written statement it is further contended that Mr.Justice Khawaja Muhammad Sharif, the Administrative Judge (as his lordship then was) observed the appellant's conduct as deplorable on account of delay in submitting the parawise comments on a complaint against the appellant. The appellant filed a representation for expunction of the said remarks which was rejected vide letter dated 5-5-2005.

5. With reference to the above, learned counsel for the respondent argued that Provincial Judicial Selection Board has ignored the appellant for grant of selection grade BS-21 in view of his unsatisfactory record. He maintained that grant of selection grade is not a vested right therefore impugned notification and order passed by the respondent/Authority do not suffer from any factual or legal infirmity, material irregularity or jurisdictional error. He also contended that appellant has since retired from service therefore appeal is not maintainable and liable to be dismissed.

6. Arguments heard. Record perused.

7. At the very outset as regards respondent's objection with regard to the maintainability of this appeal on account of appellant's retirement, suffice to say that the said argument of learned counsel for the respondent is misconceived. In this case appellant retired from, service attaining the age of superannuation on 16-3-2004 whereas the impugned notification was issued on 3-7-2004 whereby his juniors were granted selection grade in BS-21 w.e.f. 9-12-2000. Besides it is also pertinent to mention that vide same notification dated 3-7-2004 eight other already retired District and Sessions Judges were also awarded selection grade BS-21. Therefore objection of learned counsel for the respondent with regard to maintainability of the appeal is devoid of any force and thus repelled. Reliance is made upon Dr.Syed Sabir Ali v. Government of the Punjab through Secretary, Health Punjab and others (2008 SCMR 1535).

8. There is no cavil to the proposition that vide impugned notification appellant has been ignored for promotion in selection grade BS-21 whereas four officers at serial Nos.18 to 21 junior to the appellant have been granted selection grade BS-21. The impugned notification does not contain any reason for ignoring the appellant for the grant of selection grade in BS-21.

9. The Hon'ble Supreme Court of Pakistan in the case of Muhammad Siddique, Stenographer, FIA Headquarter, Islamabad and another v. Secretary, Establishment Division, Islamabad and 5 others (2001 SCMR 252) has sufficiently explained the concept and scope of term 'selection grade' in the manner that 'grant of selection grade was not a promotion in strict sense of the word though the same had overtones of promotion in view of the financial benefit involved. The expression 'selection grade' is confined to revision of basic pay scale'. The Hon'ble Apex Court in the case of Government of the Punjab through Secretary Services, Punjab, Lahore and 4 others v. Muhammad Awais Shahid and 4 others (1991 SCMR 696) held that "whether there is a change of grade or post for the better, there is an element of selection involved that is promotion and it is not earned automatically, but under an order of the competent Authority to be passed after the consideration on the comparative suitability and the entitlement of those incumbents'. It is well-settled by now that in case of selection grade selection is to be made on the basis of merit and the Authority in this regard has no other criterion to be taken into consideration except the merit by exercising fair and transparent discretion. The Hon'ble Supreme Court of Pakistan in the case of Tariq Aziz-ud-Din and others (2010 SCMR 1301) has maintained that 'Judicial, Quasi Judicial and Administrative Authorities must exercise powers in reasonable manner and instruments regarding exercise of discretion in order to ensure rule of Law and to prevent failure of Justice'.

10. In view of the above quoted dictums of the Hon'ble Apex Court we have carefully scrutinized the record of the appellant's case. It is important to note that the appellant was promoted as District and Sessions Judge in BS-20 by the respondent vide notification dated 22-4-1997. By virtue of his above said promotion any advisory remarks about the appellant in his ACRs relating to the period prior to the said promotion have no relevance to ignore the appellant for selection grade in BS-21 w.e.f. 9-12-2000.

11. As regards the observation of the Hon'ble Administrative Judge made on 15-4-2003 it may be expedient to reproduce the same which reads below:

"Apart from merits or demerits of the complaints, the conduct of officer in complying with the order of this Court is highly deplorable. According to para 9, the learned MIT has stated that time and again the officer was reminded telephonically and relevant papers were again faxed on 27-3-03, but the comments have been submitted on 10-4-03. A copy of this order may be made a part of ACR dossier of the judicial officer. Since the DDA and the Steno complainants stand transferred from the Court of Judge Special Court No.1, Anti-terrorism, Lahore the complaints may be filed." Bare reading of the above observation makes it crystal clear that the same has no bearing upon appellant's judicial work and integrity. We have also carefully gone through the appellant's service record since 1997 till his superannuation on 16-3-2004. During said period appellant served against various posts as District and Sessions Judge, Judge Accountability Sialkot and Judge Anti-Terrorism Court D.G. Khan. There is no adverse remark with regard to his work and integrity during above mentioned postings.

12. In view of the above we cannot overlook the fact that if a judicial officer has an unblemished career he deserves selection for a higher grade on merit. The impugned order denying the valuable right to the appellant is not justifiable in the circumstances of this case. Appellant therefore cannot be denied permanent loss of regular and pensionary benefits of higher selection grade in BS-21.Reliance is made upon Iftikharullah Malhi v. Chief Secretary and another (1998 SCMR 736).

13. For the above reasons appeal is allowed and the respondent/ Department is directed to grant the appellant selection grade BS-21 w.e.f. 9-12-2000 when his junior was so awarded and would cause the payment of the financial benefits including the pensionary benefits raising therefrom. The respondent shall finalize the above matter within a period of 60 days. SA/5/PST Appeal accepte