2008 PLP (C (PLC(CS))

JUSTICE (R) MANSUR ALAMGIR QAZI (MEMBER).

The main grievance of the appellant is that while working as Additional Cantonment Officer in BPS-17 he was fully eligible for promotion in BPS-18 and had a legitimate right to have been considered along with his colleagues for promotion w.e.f. 24-5-2002 on which date his colleagues were promoted and he was non-suited for the reason that there were certain contradictory adverse remarks pertaining to the period w.e.f. 6-4-1998 to 31-8-1998.

2. Feeling aggrieved and seeking expunction of the Adverse Remarks, the appellant filed Appeal No.763(L)(CS)/2002. This Tribunal was pleased to decide the said appeal vide judgment dated 24-6-2004 wherein it was concluded that he shall be considered for promotion on the basis of the reports earned by him in the last five years, and the impugned remarks shall not be a hurdle in consideration of his promotion.

3. In pursuance to this judgment the appellant was promoted to BPS-18 vide Notification dated 7-12-2004 w.e.f. 12-11-2004. He now carries a grievance that his promotion ought to have been considered from 24-5-2002 and has placed reliance on 2007 SCMR 1769 titled "Muhammad Yasin v. Secretary, Government of the Punjab and others" wherein their Lordships of the Honourable Supreme Court have so held:

S. 8

Constitution of Pakistan (1973), Arts.4 & 5(2)

Promotion

Superseding

Principle of equity, justice and fairplay

Applicability

Act of public functionaries

Protection of law

Obedience of Constitution

Civil servant was awarded major penalty of reduction in time scale by one stage, against which he had filed appeal

Despite pendency of appeal before Service Tribunal, civil servant was superseded

Appeal of civil servant was partly allowed by Service Tribunal and major penalty was reduced to minor penalty of stoppage of one increment

Plea raised by petitioner was that he was entitled to be promoted from the date when major penalty was imposed upon him

Validity

Filing of appeal was in the knowledge of concerned authorities at the time of supersession of civil servant when his junior was promoted

Such fact had brought the case of civil servant in the area that civil servant was penalized by the act of public functionaries

Nobody could be penalized by inaction of public functionaries

Lis with regard to major penalty being pending at the relevant time for adjudication before Service Tribunal, therefore, it was in the interest of justice and fairplay that authorities must have deferred the case of civil servant to await result of his appeal instead of superseding him

Such action of authorities was not in consonance with the principle of equity, justice and fairplay

Public functionaries were duty bound to Act within the frame-work of Constitution and it was command of Constitution by virtue of its Art.5(2) read with Art.4 that everybody, whosoever, must act in obedience of the Constitution to perform/discharge his duties in accordance with law

Supreme Court directed the authorities to consider the case of civil servant for pro forma promotion from the date when major penalty was awarded

Petition was converted into appeal and allowed." Learned counsel for the respondents has vehemently opposed the ante-dation of the promotion w.e.f. 24-5-2002 on the ground that the appellant was superseded and the same has not been challenged either earlier or now. The learned counsel for the appellant has strongly resisted and argued that the appellant had never been informed that he had been superseded and as such he could not represent against his supersession. The learned counsel for the appellant further contends that if a direction is issued to the respondents for reconsideration of the appellant's date of promotion in the light of the judgment of the Honourable Supreme Court of Pakistan 2007 SCMR 1769 his client would be satisfied.

5. We have heard the leaned counsel for both the parties and have also perused the record.

6. In view pf the contentions and after perusal of the record we find that other than the adverse remarks which now stand set aside there is no other stigma on the service record of the appellant, and that the earlier judgment of this Tribunal stands implemented and the appellant has been promoted to BPS-18 w.e.f. 12-11-2004 although the appellant's claim is that he ought to be considered for promotion w.e.f. 24-5-2002.

7. We direct the respondents in complete obedience to the dictum laid down by the Honourable Supreme Court of Pakistan to reconsider the case of the appellant for ante-dated promotion at the earliest opportunity.

8. There shall be no order as to costs. Parties be informed. H.B.T./4/FST Order accordingly.