1989 PLP 1560 (SCMR)

ALI HUSSAIN OAZILBASH, J.‑‑This is a petition for leave to appeal against‑the judgment of the N.‑W.F.P. Service Tribunal, dated 1‑11‑1988.

2. The respondent is a permanent Sub‑Inspector Excise and Taxation Department. A number of his colleagues junior to him have been promoted from time to time as Assistant Excise and Taxation Officers. He made a number of representations but the same were turned down because there were adverse entries in his annual confidential reports for the years 1970, 1971, 1973, 1979 and 1984 though the same had been expunged by the competent authority. In October, 1986 more junior officials were promoted and the respondent was not considered on account of adverse entries. He made another representation on 21‑7‑1987 informing the relevant authorities that no adverse entry stands against him and he may‑be considered for promotion to the post of Assistant Excise and Taxation Officer. His representation was turned down holding it to be barred by time, which compelled him to move the Service Tribunal by way of an appeal. This came up for consideration of the Tribunal on 1‑11‑1988 and was allowed, as a result of which the orders passed by the petitioners were set aside and the respondent was declared to be senior to those persons who were promoted at the pretext of the adverse entries in the respondent's annual confidential reports.

3. We have heard the learned counsel for the parties for and against the petition and have gone through the order of the Tribunal. The appeal of the respondent before the Tribunal was allowed in the following terms: "It is, therefore, quite established that after the decision of the representation the appellant (now respondent) would attain its seniority from the date his juniors were promoted by treating him senior than those persons. The result is that we accept the appeal, set aside the impugned order and declare the appellant senior than those persons who were promoted at the pretext of the appellant's adverse entry in the ACRs." The above has been taken very serious note of by the learned counsel for the petitioners. His case is that while submitting written reply by the petitioners before the Service Tribunal it was made clear that the copy of the order of the Commissioner, Peshawar Division, for expunction of remarks for the period 1‑1‑1984 to 30‑6‑1984 was recently received and the case of the respondent would be considered along with others in the next meeting of the Departmental Examination Committee. He also submitted that the prayer made before the Tribunal by the respondent was that his case should be placed before the Departmental Examination Committee for considering his eligibility for promotion as an Assistant Excise and Taxation Officer, etc., etc. In view of the above, he submitted that the Tribunal has exceeded its jurisdiction in ordering the promotion of the respondent and also placing him senior to the persons already promoted.

4. As the case stands, we think the submissions made by the learned counsel for the petitioners have lot of force in that when the Department itself agreed to consider the case of the respondent for promotion and the case of the A respondent too before the Tribunal was that his case for promotion should be considered by the Departmental Examination Committee, the Tribunal exceeded its jurisdiction in taking upon itself the function of the competent authority and in ordering the promotion of the respondent.

5. In the result we convert this petition into appeal and allow the same in terms of the prayer made by the respondent in the appeal before the Tribunal. There will, however, be no order as to costs. A.A./S‑269/S Appeal allowed.