2001 PLP (C (PLC(CS))

MUHAMMAD AYUB KHAN (MEMBER)

Facts of the case appeared, from the Record are that the appellant was appointed L.D.C. B-5 on 13-11-1972 in the planning and Development Division, Islamabad he was later on promoted, U.D.C on 22-5-1983, the appellant it appears was involved in some disciplinary proceedings which ultimately culminated into his compulsory retirement from service on 24-11-1993 but the departmental authority, on acceptance of his appeal, converted the penalty of his compulsory retirement from service into his reversion to lower post, i.e. L D; C. as a result of which the appellant took charge a rep on 24-3-1994 but the specific period during which his reversion was to remain effective unfortunately was not specified as required under F.R.29 which is reproduced for convenience sake below;

"F.R.29. If a Government servant is, on account of misconduct or inefficiency, reduced to a lower grade or post or to a Power stage in his time scale, the authority ordering such -reduction shall state the period for which it shall be effective and whether, on restoration, it shall operate to postpone future increments and if so, to what extent.": . .

2. The appellant challenged the same penalty before this Tribunal in Appeal No. 31(R) of 1994, but his appeal `was dismissed on point of limitation. However the appellant was later on considered by the D.P.C. but on 2.7-7-1995 but it did not approve him for, promotion due to no completion of 3 years as required for promotion in case of L.D.C to the post of U.D.C. But subsequently-, a meeting- of the DPC was again held on 31-10-1995, in which L.D.Cs. junior to the appellant were considered and promoted. The appellant filed an appeal' against it: before this Tribunal and the later was pleased by Judgment dated -20-5-1-996 to direct Planning Division to prepare and send case of the appellant to the Establishment Division within 3 months, and it appears, that the needful was done by the Planning-Division and thus further; promotion of the appellant to B77 was effected by order, dated 1&-.3-1:99Twith immediate effect. It reads:

'No.1(40) Admn-III of 1996 Islamabad 18th.March,1997. OFFICER ORDER Mr. Muhammad Asif, L.D.C. (BPS-71 by Selection Grade) has been promoted temporarily as Upper Division Clerk (BPS-7) in the Planning and Development Division with immediate effect. (Sd.) 18-3-1997 (Muhammad Din Naz) Section Officer "

3. The appellant still feeling aggrieved from the aforesaid order filed a departmental appeal, dated 15-4-1997 for antedation of his promotion but the same was- not responded by the respondents and hence the present appeal was filed before this Tribunal on 13-8-1997 which is ample within time.

4. Learned counsel for the parties for and against the appeal have been heard and record perused.

5. It was stated on behalf of the appellant that promotion of the appellant was required to be made with retrospective effect, i.e. the date on which his colleagues junior to him were promoted and further that he was not required to wait for three years being not freshly appointed and in support of his view point placed reliance on:-- (i) 1982 PLC (C. S.) 451, and (ii) PLD 1987 SC 427.

6. Facts of the first case, stated above, are that one Sub-Inspector of Police while posted in. CIA involved himself in corruption case for which he was reverted to the post of A.S.I. of Police. His departmental appeal failed, he transferred a service appeal to the Punjab Service Tribunal, during pendency of which the D I.-G. concerned promoted him as Sub-Inspector but put him on probation. It so happened that successor of this D.I.-G. when seized of the matter, ordered his reversion to the rank of A.S.I. and :-- "It was considered necessary to put him on special report, hence S.P. Multan was asked to send a special report on his working and ' conduct. The S.P. Multan has submitted the aforesaid report stating therein that he handled 15 cases and all were challenged, that he is honest, hardworking and his promotion case may be considered favourably. In view of this report and after going through his record, I order that he is promoted as Sub-Inspector and will retain his original seniority." This order of 17-2-1979 was approved in the said judgment whereas the other order,- dated 24-10-1979 was not approved. But despite this the Tribunal observed:-- Before parting with this case we would observe that in the matter this Court is not empowered to give any direction and leave the matter entirely to the departmental authority (appeal accepted)." A perusal of these observations, necessitating promotion of the reverted A.S.I. to the rank of Sub-Inspector with his original seniority, was as a result of his good conduct by virtue of which the earlier blemish aspect of his conduct was thereby cleansed.

7. ESTACODE contains provisions for meeting such like eventualities at Serial No.172-A, relevant portions at pages 245 and

246. Under Serial No.(c) an incumbent earlier suspended can be reconsidered for, promotion under Serial No.(c)(i) to (vi). Para. 2 at page 246 of the ESTACODE reads:-- "(2) If a civil servant is superseded he will not be considered for promotion unless he has earned one more CR for one full year."

8. Now reverting to the facts of the case, according to which the appellant was involved in disciplinary action in which he was found guilty and awarded penalty of compulsory retirement from service which is a major penalty but, on departmental appeal, the departmental authority was pleased to convert this penalty into his reversion to the lower post but simultaneously failed to specify the period etc. till which he would stand reverted as referred to above under F.R.29. Later on the DPC was convened in which incumbent junior to him were considered and promoted to the total exclusion of the appellant, he tiled a service appeal in this Tribunal and pursuant to the directions issued therein to the departmental authority for his consideration within three months, the appellant was considered by the DPC which was pleased to order his promotion with immediate effect which order is reproduced above in verbatim.

9. No doubt, rationale/policy behind antedation of promotion is contained in items (i) to (vi) vide at page 246 of the ESTACODE but strictly speaking the appellant cannot be accommodated therein for the obvious reason that he had a blemished record and does not fulfil the requirement of the items at page

246. The authority contained in 1982 PLC (C.S.) 451 regretfully can be distinguished in the sense that the stigma attached to the character of the A.S.I. was totally obliterated and washed away by the special report whereby he justified himself for the desired promotion with original seniority whereas in the instant case, the appellant has still got a stigma attached to him despite being reinstated in service and in this respect paragraph 2 quoted above is a hurdle in his way. He should show good performance at least for full one-year as required.

10. Reference to and discussion on the second authority contained in PLD 1987 SC 427 is not considered advisable.

11. In view what has been stated above we are constrained to set aside the impugned order and remand the case to the departmental authority for reconsideration of his case by the concerned DPC as to whether he deserves promotion from the date his junior were promoted and pass appropriate/just order there shall be no order as to costs. H.B.T./266/ST/F Order accordingly.