2009 PLP (C (PLC(CS))

ABDUL HAMEED DOGAR, C.J.

This petition for leave to appeal is filed against judgment, dated 8-12-2007 passed by learned Federal Service Tribunal, Islamabad whereby Appeal No.1467(R)(C.S.) of 2005 filed by respondent No.1 was allowed in the following terms: "(11) In view of what has been stated in paras.8 to 10 and because the appellant has continued to hold the acting charge appointment since 13-5-1997, we direct that the appellant's case for regular promotion to BPS-20 be placed immediately before the CSB which will decide this case based on the record as it stood when the CSB met on 3-7-2003 with no mention of any adverse remarks of A.C.Rs. This will be treated as appellant's first consideration for regular promotion after his acting charge appointment on 13-5-1997 and further action or consideration of the appellant's promotion on regular basis will depend upon the outcome of this consideration by CSB. The consideration of the appellant's case for promotion in CSB meetings held on 18-12-2004, 8-8-2005 and 29-8-2006 or another will not be relevant or figure in this exercise of consideration afresh of the appellant's promotion case."

2. Briefly stated facts of the case are that respondent No.1 was appointed as Assistant Collector in the Customs and Excise Group on the basis of competitive examination held in 1980. His case for promotion to BPS-20 was placed before the CSB (Central Selection Board) in its meeting held on 4-7-1996. He was recommended for promotion but since he had not completed 17 years prescribed service for regular promotion to BPS-20, as such he was appointed to BPS-20 on acting charge basis with the approval of the Prime Minister on 13-5-1997. He continued to hold acting charge appointment. His case for regular promotion was deferred by CSB in its meeting held on 3-7-2003 as his representation against adverse remarks in his ACR for the year 2000-2001 was pending. However, these remarks were expunged on 15-7-2003 by the competent authority. In subsequent meetings of CSB held on 18-12-2004, he was superseded on the ground that although he met the minimum required threshold, his performance did not meet the criteria of excellence and comparative merit whereas his service colleagues were promoted vide Notification dated 26-2-2005. Feeling aggrieved, he filed departmental appeal which remained unresponded, as such he invoked the jurisdiction of the learned Federal Service Tribunal, Islamabad through Appeal No.1467(R)(C.S.) of 2005 on 23-7-2005.

3. During the pendency of appeal CSB in its meeting held on 29-8-2006 again superseded respondent No.1 for the reasons that his performance according to PERs (Performance Evaluation Reports) for the year 1999 and 2000 was average. His PER for the year 2002 did not speak much of him and reflected him devoid of any kind of confidence. He does not enjoy good reputation in terms of financial integrity. The acting charge appointment of respondent No.1 was terminated on 1st March, 2007 and he was superseded.

4. The appeal filed by respondent No.1 was allowed by the learned Tribunal vide impugned. judgment as stated above.

5. We have heard Raja Muhammad Bashir, learned Senior Advocate Supreme Court for the petitioner, Raja Muhammad Ibrahim Satti, learned Advocate Supreme Court for respondent No.1 and Sardar Muhammad Ghazi learned D.A.-G. at length and have gone through the record and proceedings of the case in minute particulars.

6. Learned counsel for the petitioner vehemently contended that learned Tribunal has not appreciated the legal and factual aspects of the case in its true perspective which resulted in miscarriage of justice. He contended that respondent No.1 had not filed any representation or appeal against the order/recommendation of the CSB when he was deferred in 2003 and then superseded in 2004. He further contended that even in the year 2005 when he was superseded he did not file a proper representation. He further contended that promotion cannot be claimed as a vested right as much as the matter falls within the domain of CSB's recommendation and competent authority who can be the best judge to grant or refuse promotion to a civil servant.

7. On the other hand learned counsel for respondent No.1 supported the impugned judgment and contended that the fitness of respondent No.1 was never in doubt and he should have been promoted to BPS-20 on regular basis immediately on completion of requisite seventeen years of Government service. According to him respondent No.1 has a good service record as no disciplinary proceedings were pending against him but was deferred without any justification.

8. Learned D.A.-G. also supported the impugned judgment and adopted the arguments of learned counsel for respondent No.1.

9. It is an admitted position that respondent No.1 met with the required threshold and other relevant ingredients required for promotion but according to the minutes of CSB he did not meet the criteria of excellence and comparative merit. Learned counsel for the petitioner has failed to show the reasons his juniors were found better qualified. The case of respondent No.1 has not been considered in its true perspective. He was appointed on acting charge basis on recommendation of the CSB and the approval of the Prime Minister on 13-5-1997. He became eligible for promotion on completion of seventeen years of service, but his case was not referred to CSB with due diligence and petitioner has failed to show any reason for such delay. It was held in the case of Abdul Latif v. The Secretary/Chairman, Azad Jammu and Kashmir Council and others 2001 PLC (C.S.) 1187 that under the provisions of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 appointment on "Acting Charge Basis" is made when the officer/official is eligible for appointment to the post that lacks the specified length of service, then in that event his appointment will be made on "Acting Charge Basis" but a question arises as to how long he will continue on "Acting Charge Basis", the short answer to which is that as the deficiency is of length of service remain no longer in existence. As a matter of policy, civil servants need not be lingered on for an indefinite period on acting charge appointment and the moment the requisite length of service is completed there appears no further justification for continuance of their acting charge appointment and secondly the acting charge appointment must be given to persons who are senior most as per the seniority list and in this respect, the Appointing Authority has got no discretion as its sweet will. It was also held in the case of Khalid Mehmood v. The Secretary to Government of Sindh and another 2001 PLC (C.S.) 654 that if officer was not found fit for promotion for want of certain requirements, the moment said requirements were completed, the officer be promoted with effect from date his juniors were promoted as he was deferred and not superseded. It was held by this Court in the case of Dr. Waseem Ismat Chaudhry v. Chairman and Dean, Shaikh Zayed Hospital and Post Graduate Medical Institute, Lahore and others 1999 SCMR 2364 that an employee cannot be denied promotion on the basis of an alleged inquiry which may be founded on an alleged act committed subsequent to the recommendation of the Departmental Promotion Committee for his promotion. The case of respondent No.1 is identical to cases referred (supra), therefore, learned Tribunal has rightly allowed the appeal in his favour.

10. In view of above discussion, we do not find any ground to interfere with the impugned judgment which is maintained. Accordingly, the petition being devoid of force is dismissed and leave to appeal refused. M.B.A./C-9/SC Petition dismissed.