1998 PLP 607 (SCMR)

MAMOON KAZI, J.‑‑‑This appeal, by leave of the Court, is directed against the judgment of the Federal Service Tribunal, dated 17‑5‑1994.

2. Brief facts of the case 'are that the appellant is serving as General Manager Production (B‑19) in the Pakistan Ordnance Factories. When the appellant was serving in Inspection Department, he received adverse remarks in his A.C.Rs for the years 1986 and 1987. Subsequently, the appellant was superseded by his junior, Abdul Quddus Khan (respondent No.4), who was appointed as officiating Director Services (B‑20) with effect from 1‑1‑1989. The appellant's inquiry revealed that the overall evaluation of the appellant's performance during the said years had been recorded as "average" and it was also mentioned in his A.C.Rs. that he was "not 'fit for promotion" although, those remarks had not been communicated to the `' appellant.

3. The appellant filed separate appeals/representations to the departmental authority and thereafter, he filed his respective appeals before the Service Tribunal which were allowed, vide separate judgments, dated 28‑7‑1991 and 29‑7‑1991. In regard to adverse remarks, the Tribunal held that the original remarks in his A.C.R. for the year 1987 had been washed off by his revised A.C.R. written for the said year and the remarks in his A.C.R. for the year 1986 that he was "not yet fit for promotion" were also expunged and replaced by remarks "fit for promotion on his turn". With regard to supersession by promotion, the Tribunal held that the appellant would be deemed to have been promoted on the day his next junior, Abdul Quddus, was promoted in BPS‑20, together with all monetary benefits.

4. The second judgment of the Tribunal was set aside by this Court in appeal as the appellant had failed to implead the two incumbents as parties before the Tribunal, who had been promoted in preference to the appellant and the case was remanded to the Tribunal for a fresh disposal. On remand, the Tribunal held that, as the appellant had failed to request the Tribunal earlier for up-gradation of his A.C.Rs. when he had filed his appeal before the Tribunal in this regard, the decision of the Promotion Board dated 3‑7‑1988, finding the appellant unfit for promotion upon gradation and quantification of his A.C.Rs. vis‑a‑vis respondent Abdul Quddus, was free from any infirmity and consequently, the appellant's appeal was dismissed.

5. Leave was granted by this Court to consider the question, whether the Authorities concerned ‑ had acted properly while failing to consider the appellant's revised A.C.Rs. for the years 1986 and 1987 while considering his case for promotion.

6. We have heard the learned counsel respectively appearing for the parties and the learned Deputy Attorney‑General.

7. There appears to be no controversy in regard to the fact that initially the case of the appellant for promotion had been considered by the Promotion Board in its meeting held on 3‑7‑1988 by keeping the same in juxtaposition with that of respondent No.4, Abdul Quddus. The decision of the Board was obviously based on the A.C.Rs. earned by the appellant before expungement of the said remarks where it had been recorded that the appellant was "not yet fit for promotion"., Since respondent Abdul Quddus appears to have had a better service record, preference was given to him by the Board. However, the appellants adverse remarks were subsequently expunged by the Tribunal and replaced by remarks "fit for promotion on his turn". Even his appeal, challenging his supersession by respondent Abdul Quddus was granted by the Tribunal, and the appellant was declared as senior to the former. But the judgment of the Tribunal was set aside by this Court only for technical reasons, as was ‑ pointed out earlier. However, when the Tribunal heard the case on remand, it should have asked for re‑examination of the appellant's case alongwith that of respondent Abdul Quddus by the Promotion Board in the light of revised A.C.Rs. of the appellant. But instead, the case of the appellant was decided by the Tribunal upon the earlier report of the Promotion Board dated 3‑7‑1988, which was based on A.C.Rs. before expunction of the said remarks, which has certainly caused prejudice to the appellant

8. Learned counsel for the appellant has also challenged the quantification made by the Promotion Board as, according to him, the same was not done in accordance with the instructions contained in Estacode in this regard. The learned counsel has pointed out that the post held by the appellant belongs to specialists cadre for which, according to the instructions contained at page 250 of the Code, emphasis for promotion should have been more on technical qualifications, experience and accomplishments, rather than other consideration which generally apply to promotions.

9. Although, we would not like to go into this question at this stage and provide guidelines in this behalf, but it must, nevertheless, be observed that the Departmental Promotion Authorities must strictly adhere to the instructions contained in the Estacode while determining criteria for promotions. Any departure from the same may cause injustice to a deserving person. However, in view of the circumstances stated above, we are clearly of the view that the impugned judgment of the Tribunal is liable to be set aside. 7rey.

10. In the result, the appeal is allowed and the judgment of the learned Tribunal dated 17‑5‑1994 is set aside and the case is remanded to the Department concerned for reconsideration of the case of the appellant afresh for promotion. We have been informed that respondent Abdul Quddus has already retired from service after reaching the age of superannuation and in the meanwhile many other persons have been promoted against vacancies which occurred from time to time. The appellant was also considered for promotion but he was not found fit each time. We would, however, direct that when a next vacancy for promotion occurs. the case of the appellant shall be reconsidered for promotion after keeping it in juxtaposition with that of respondent Abdul Quddus, notwithstanding the fact that the latter has already retired from service, in the light of the said revised A.C.Rs. In case, it is found that the appellant was entitled to promotion in preference to respondent Abdul Quddus and he had been wrongly superseded by the latter, he shall be promoted. However, the appellant's promotion in no manner, shall affect any other person, who has already been promoted against a vacancy in BPS‑

20. The appellant, who was present in the Court alongwith his counsel, Mr. Bilal, has given an undertaking that he shall not call into question the promotion of any other person, who has already been promoted before, him on the basis of this judgment. The parties are left to bear their own costs A.A./M‑85/S Case remanded.