2008 PLP (C (PLC(CS))

CH. MUHAMMAD ILYAS (MEMBER).

The appellant was superseded on 28-7-2004 due to a punishment of censure awarded to him on 24-2-1980 whereas his junior Sub Engineer Mr. Mukhtar Ahmed was promoted with effect from 30-7-2004 as Assistant Executive Engineer. He was subsequently promoted with effect from 26-12-2005 vide department's notification dated 25-9-2006. His departmental appeal made on 18-10-2004 was rejected on 12-8-2005. He filed this appeal with a prayer that he be assigned seniority in terms of rule 3(c) of the Civil IA Servant (Seniority) Rules, 1993.

2. The learned counsel for the appellant argued that the appellant was promoted from his original position of Sub Engineer Grade-II to Sub-Engineer Grade-I on 24-8-1996 and that he was also allowed Selection Grade on 11-10-2000 based on the same service record and for these promotions, censure awarded in 1980, more than 25 years ago, didn't constitute an impediment which even otherwise being a minor penalty would not legally be considered a bar against promotion in terms of the dictum laid down vide 1986 PLC 228, 1995 PLC 734, 1991 PLC 1195 and 2001 PLC 1062. He argued that as per practice and principles of law as laid down vide 1990 PLC 62 and PLD 1992 SC 144 only five years' record is required to be considered at the time of promotion to the next grade or post and if a civil servant possessed two good and three average ACRs, he has a right to be promoted. He cited 1987 PLC (C.S.) 179 to argue that a single lapse during 21 years' unblemished service was required to be ignored.

3. The learned counsel for the respondents argued that the appellant was censured for a gross misconduct of copying from the written material imported in the Examination Hall when he was taking examination for promotion from Superintendent E&M Grade-II to Superintendent E&M Grade-I on 17-10-1973 and as such, it cannot be considered to be a mere lapse in view of the gravity of his offence. His junior Mr. Mukhtar Ahmed, Sub-Engineer, on the other hand, was too censured on 21-5-1977 for remaining absent without permission which was not as grave as the charge against the appellant.

4. Heard arguments and perused the working paper and DPC minutes. The service record for last five years, as reproduced below, shows that both the appellant and private respondent No.3 met the eligibility criteria and had comparable record:

S.No. Army No. & name in order of seniority ACR 1999 2000 2001 39 8465860 Mr. M. Munir Khan AA Yes AA Yes AA Yes 40 8465862 Mr. Mukhtar Ahmed AA Yes OS Yes AA Yes ACR. Previous punishment Recommendations 2002 2003 HA Yes VG Yes Censured, dated 24-2-80 Superseded OA Yes Censured, dated 21-5-77 Recommended subject to positive ACR 2003 It is clear from the above that both were censured and the private respondent had even his ACR for 2003 missing, but he was promoted subject to positive ACR for 2003. We agree with the arguments of the learned counsel for the appellant that a minor penalty such as censure did not constitute a bar as established vide the case-law cited by him, to the promotion of the appellant not to speak of holding it against him after 25 years of its incidence. Equally exceptionable is that the nature of offence should be made a reason for differentiation determined on the basis of comparatively perceived gravity but leading to a similar kind of penalty and 'that too after lapse of a quarter of a century. The award of penalty falls within the domain of the authority competent to punish rather than the DPC to interpret it for a differentiated weightage to justify a discrimination. A censure is a minor penalty and the law is that a minor penalty doesn't stand in the way of promotion. On the other hand, the record of the appellant is generally such as would make him fit for promotion when criteria applicable under law is seniority-cum-fitness and the promotion involved is not against a selection post. We observe that private respondent No.3 has been promoted despite one of the ACRs for the last five year being missing. Though private respondent has a slightly better record yet this was a case of promotion on seniority-cum- fitness and the appellant also deserved to be promoted on the basis of his record regardless of the penalty of censure, a blemish that was otherwise ignored, and rightly so, in the case of the private respondent. 5. In view of the foregoing, we accept the appeal and convert the appellant's supersession on 28-7-2004 into deferment and direct the respondents to consider his promotion to take effect from the same date and fix his seniority in accordance with rule 3(c) of 'the Civil Servants (Seniority) Rules, 1993 as he subsequently stood promoted with effect from 26-12-2005 essentially on the basis of the same record and not withstanding the censure imposed in 1980. 6. No order as to costs. Parties be informed accordingly. H.B.T./51/FST Appeal accepted.