Proforma promotion

Appeal filed by appellant seeking proforma promotion under section 8(5) of Punjab Civil Servants Act, 1974 was dismissed by the Service Tribunal

Validity

Service Tribunal based its judgment on incorrect exposition of law which was result of adverting to a wrongly published gazette notification

Patent and obvious error or oversight on the part of Court in any order or decision, could be reviewed sanguine to legal maxim "actus curiae neminem gravabit" meaning that no man should suffer because of the fault of Court or delay in the procedure

There is de rigueur sense of duty in administration of justice that Court and Tribunal should become conscious and cognizant that as a consequence of their mistake, nobody should become victim of injustice and in the event of any injustice or harm suffered because of a mistake of Court, the same should be remedied by making necessary corrections forthwith

Supreme Court set aside judgment passed against appellant/civil servant and matter was remanded to Service Tribunal for decision afresh.

Whether the Tribunal was competent and vested with jurisdiction to declare the respondent (retired civil servant) 'qualified' for promotion when others were promoted and then simultaneously direct the competent authority to consider him for proforma promotion

Held, that it is implicit from the scheme provided under the Civil Servants Act, 1973 ('Act of 1973') read with the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 ('Rules of 1973') that promotion to a higher post is confined to a civil servant who has not retired or superannuated after attaining the age of superannuation

Said scheme does not contemplate for a civil servant to be considered for promotion after retirement or having attained the age of superannuation

Civil servant who has retired after attaining the age of superannuation cannot claim to be considered for promotion to a higher post

Question of evaluating the fitness or suitability for promotion has always been within the exclusive jurisdiction of the competent authority and it is not shared by the Service Tribunal or a Court exercising supervisory jurisdiction in respect of eligibility and qualification

Tribunal is, therefore, not competent nor vested to alter, vary or in any manner modify the scheme of promotion to a higher post explicitly prescribed under the Act of 1973 and the Rules of 1973

In the present case the Tribunal had transgressed its jurisdiction by declaring the respondent (retired civil servant) to be 'qualified' for promotion from the date others were promoted

Tribunal also fell in error by pre-empting the process required to be adopted by the designated forum for determining the eligibility and entitlement of the respondent for the purposes of proforma promotion

Petition was converted into an appeal and was partly allowed.

Whether the Tribunal was competent and vested with jurisdiction to declare the respondent (retired civil servant) 'qualified' for promotion when others were promoted and then simultaneously direct the competent authority to consider him for proforma promotion

Held, that it is implicit from the scheme provided under the Civil Servants Act, 1973 ('Act of 1973') read with the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 ('Rules of 1973') that promotion to a higher post is confined to a civil servant who has not retired or superannuated after attaining the age of superannuation

Said scheme does not contemplate for a civil servant to be considered for promotion after retirement or having attained the age of superannuation

Civil servant who has retired after attaining the age of superannuation cannot claim to be considered for promotion to a higher post

Question of evaluating the fitness or suitability for promotion has always been within the exclusive jurisdiction of the competent authority and it is not shared by the Service Tribunal or a Court exercising supervisory jurisdiction in respect of eligibility and qualification

Tribunal is, therefore, not competent nor vested to alter, vary or in any manner modify the scheme of promotion to a higher post explicitly prescribed under the Act of 1973 and the Rules of 1973

In the present case the Tribunal had transgressed its jurisdiction by declaring the respondent (retired civil servant) to be 'qualified' for promotion from the date others were promoted

Tribunal also fell in error by pre-empting the process required to be adopted by the designated forum for determining the eligibility and entitlement of the respondent for the purposes of proforma promotion

Petition was converted into an appeal and was partly allowed.

Appellant assailed the order passed by respondent (Registrar High Court), whereby his request for grant of proforma promotion as Additional District and Sessions Judge was declined on the ground that since the juniors were promoted on officiating basis, thus, appellant was not entitled for proforma promotion

Validity

Respondents/juniors were promoted against regular vacancies and their posting and transfers were made requiring them to assume charge of their new place of posting without passing any fresh order for their regular promotion and they assumed charge accordingly

Adverse remarks concerning the integrity of an officer could be ignored, provided he earned three consecutive satisfactory PERs, which condition was successfully met by the appellant and thereby he overcame the hurdle

Where a temporary embargo has been placed on a civil servant's right to promotion, or legal restraint has been imposed on his/her claim, the removal of such obstacles entitles the officer to remedy the monetary loss and loss of rank through proforma promotion

It is an inalienable right of every civil servant to be considered for promotion along with his batchmates once he fulfills the eligibility criteria

Principles of promotion ensure fairness in case where administrative inefficiency or procedural delays result in a senior civil servant being bypassed

Adverse ACRs, once resolved or mitigated through subsequent satisfactory reports, lose their impact on the civil servant's promotion eligibility

Officiating promotions cannot permanently preclude civil servants from receiving proforma promotion, if they satisfy all criteria and their juniors have been promoted to substantive posts

Failure to grant proforma promotion in such cases would contravene the principles of fairness and equity

Appeal was allowed, in circumstances.

Proviso to F.R. 17 was omitted by Finance Division, as such benefit of proforma promotion under F.R. 17 was only available to civil servants retiring before cut-off date and as the petitioner retired after the cut-off date of the said notification, thus, such benefit was not available to him

Concept of proforma promotion or promotion with retrospective effect to a retired civil servant is alien to the scheme of law

Sindh Civil Servants Act, 1973 and Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, being governing laws in matters of appointment and promotions do not contain any provision entitling a civil servant for proforma promotion after retirement and in absence of any laws conferring rights of proforma promotion to the retired civil servants, High Court cannot issue writ directing the public sector organizations/entities/departments to do an act otherwise not permissible under the law.

As per Rule 19.25 of the Police Rules, 1934, officers have to undergo various courses (A, B, C and D) to qualify for promotion

Training of upper subordinates, being Inspector, Sub-Inspector (SI) and Assistant Sub-Inspector (ASI), is a mandatory requirement of law for the purposes of promotion in terms of Rule 19.25 of the Rules

Focus of Rule 19.25 of the Rules is capacity building in order to develop knowledge, skill and the necessary traits required for the post and rank

Being a disciplined force, the tendency to focus on promotions of juniors is totally irrelevant within the police department, where the primary focus and emphasis for promotion purposes should be training and capacity building

Hence, for all intents and purposes, promotion from the date of the promotion of juniors is not possible for upper subordinates in terms of the clear provisions of Rule 19.25

An officer must complete the required course(s) before seeking promotion

Furthermore, ante-dated promotion upsets the training requirement

Institution of police cannot thrive if it is consistently consumed in litigation for promotion and other service-related benefits

Hence, it is imperative that officers should focus on building institutional credibility and trust in the eyes of the public and develop an effective system of governance on service-related matters so as to end the trend of litigation on such matters.

Further, there was no provision in the relevant service rules of the petitioner-Bank for the right to be granted proforma promotion

This was coupled with fact that the respondent had already retired from service and received all his benefits due to him under the law

As such, interference by the High Court in the matter at the stage that it interfered was not supported either by the relevant law or by any of the service rules which governed the terms and conditions of employees of the Bank

Petition for leave to appeal was converted into appeal and allowed, and impugned judgment of the High Court was set-aside.

As per Rule 19.25 of the Police Rules, 1934, officers have to undergo various courses (A, B, C and D) to qualify for promotion

Training of upper subordinates, being Inspector, Sub-Inspector (SI) and Assistant Sub-Inspector (ASI), is a mandatory requirement of law for the purposes of promotion in terms of Rule 19.25 of the Rules

Focus of Rule 19.25 of the Rules is capacity building in order to develop knowledge, skill and the necessary traits required for the post and rank

Being a disciplined force, the tendency to focus on promotions of juniors is totally irrelevant within the police department, where the primary focus and emphasis for promotion purposes should be training and capacity building

Hence, for all intents and purposes, promotion from the date of the promotion of juniors is not possible for upper subordinates in terms of the clear provisions of Rule 19.25

An officer must complete the required course(s) before seeking promotion

Furthermore, ante-dated promotion upsets the training requirement

Institution of police cannot thrive if it is consistently consumed in litigation for promotion and other service-related benefits

Hence, it is imperative that officers should focus on building institutional credibility and trust in the eyes of the public and develop an effective system of governance on service-related matters so as to end the trend of litigation on such matters.

Further, there was no provision in the relevant service rules of the petitioner-Bank for the right to be granted proforma promotion

This was coupled with fact that the respondent had already retired from service and received all his benefits due to him under the law

As such, interference by the High Court in the matter at the stage that it interfered was not supported either by the relevant law or by any of the service rules which governed the terms and conditions of employees of the Bank

Petition for leave to appeal was converted into appeal and allowed, and impugned judgment of the High Court was set-aside.

Appellant assailed order passed by respondent(Registrar High Court ) , whereby his request for grant of proforma promotion as District and Sessions Judge was declined

Validity

Record revealed that the disciplinary proceedings initiated on the orders of the Administration Committee culminated in passing order of appellant's compulsory retirement from service, which was finally converted into censure , and the intervening period (till appellant's retirement on attaining the age of superannuation) was declared as on duty and back benefits of the said period (as Additional District and Sessions Judge) were granted

Promotion cannot be deferred on the ground of pendency of some disciplinary or departmental proceedings, if otherwise he has fulfilled the criteria for consideration of promotion

Subordinate Judiciary Service Tribunal set-aside impugned rejection order passed by the Registrar High Court while declaring that the appellant was entitled to the grant of proforma promotion and consequent monetary benefits

Appeal was allowed.

Appellant assailed order passed by respondent (Registrar High Court), whereby his request for grant of proforma promotion as District and Sessions Judge was declined

Validity

Perusal of record revealed that appellant was considered for promotion as District and Sessions Judge in the meeting of the then Provincial Judicial Selection Board, however he was ignored on the charges of using government money, and not returning the same, which were pending against him ; said money was in possession of concerned Civil Nazir

Appellant could not be penalized by the act of the public functionaries

Subordinate Judiciary Service Tribunal set-aside impugned rejection order passed by the Registrar High Court while declaring that the Appellant was entitled to the grant of proforma promotion and consequent monetary benefits

Appeal, was allowed.

Appellant assailed order passed by respondent (Registrar High Court), whereby his request for grant of proforma promotion as District and Sessions Judge was declined

Validity

Record revealed that appellant was considered for promotion as District and Sessions Judge in the meeting of the then Provincial Judicial Selection Board, however he was ignored on basis of some charges, keeping in view the working paper prepared by the respondent reflecting number of allegations and pendency of disciplinary proceedings

Record further revealed that all the hurdles which prevailed upon the then Provincial Judicial Selection Board had vanished

Thus, the appellant had vested right to be considered for proforma promotion with consequential seniority and monetary benefits even after his retirement

It is an inalienable right of every civil servant that he be considered for promotion along with his batch mates when he fulfills eligibility criteria

Subordinate Judiciary Service Tribunal set-aside impugned rejection order passed by the Registrar High Court while declaring that the appellant was entitled to the grant of proforma promotion and consequent monetary benefits

Appeal, was allowed.

Appellant assailed order passed by respondent (Registrar High Court), whereby his request for grant of proforma promotion as District and Sessions Judge was declined

Validity

Argument of respondent (Registrar High Court) was that appellant's representation was time barred

Validity

Record revealed that disciplinary proceedings were started against appellant in the year 2009 and remained pending when he attained the age of superannuation, however, culminated into judgment passed in the year 2017 by way of conversion of compulsory retirement into censure, and regarding back benefits ; and the Supreme Court of Pakistan vide order passed in the year 2017 directed the authority to decide the same, and ultimately, back benefits were granted

As the appellant was entitled to the grant of proforma promotion, the objection qua limitation was not tenable

Subordinate Judiciary Service Tribunal set-aside impugned rejection order passed by the Registrar High Court while declaring that the Appellant was entitled to the grant of proforma promotion and consequent monetary benefits

Appeal, was allowed.

Withholding of promotion on the ground of adverse entries in Performance Evaluation Reports (PERs) by the reporting officer

Disagreement by the Countersigning Officer

Effect

Non-communication of adverse Annual Confidential Report (ACRs) in which petitioner had been rated as "average"

Effect

Contention of the petitioner was that promotion of the petitioner could not be withheld on the basis of adverse entries in the Annual Confidential Report (ACRs), which were neither endorsed by the Countersigning Officer nor communicated to the petitioner

Validity

Case of the petitioner was not properly considered by the Selection Committee while observing that "his PERs for the last two years reflect that he is unfit for promotion", because, the record spoke otherwise and the remarks recorded by the Countersigning Officer were to be given weight, and the entries pertained to 'unfit for promotion' given by the Reporting Officer, lost their efficacy

Promotion case of the petitioner had not been dealt with even handedly, because the moment High Court directed the respondents for decision of his departmental representation, average ACRs were recorded thereafter for the years 2016 and 2017, which were even against the PERs Instructions, which required finalization of such ACRs by Reporting Officer on 20th July and by Countersigning Officer on 31st July, while in the instant case, the ACRs were belatedly written, which spoke volumes about the treatment meted out to the petitioner

Promotion cannot be withheld on the basis of earning average ACR

Constitution petition was allowed accordingly.

If a person is not considered due to any administrative slip-up, error or delay when the right to be considered for promotion is matured and without such consideration, he reaches to the age of superannuation before the promotion, then obviously the avenue or pathway of proforma promotion comes into field for his rescue

If he lost his promotion on account of any administrative oversight or delay in the meeting of Departmental Promotion Committee (DPC) or Selection Board despite having fitness, eligibility and seniority, then in all fairness, he has a legitimate expectation for proforma promotion with consequential benefits

Unjustified delay in proforma promotion cases triggers severe hardship and difficulty for the civil servants and also creates multiplicity of litigation

Competent authority should fix a timeline with strict observance for the designated committees of proforma promotions in order to ensure rational decisions on the matters expeditiously with its swift implementation, rather than dragging or procrastinating all such issues inordinately or without any rhyme or reasons which ultimately compels the retired employees to knock the doors of Courts of law for their withheld legitimate rights which could otherwise be granted to them in terms of applicable rules of service without protracted litigation or Court's intervention.

Meaning and scope of proforma promotion stated.

If a person is not considered due to any administrative slip-up, error or delay when the right to be considered for promotion is matured and without such consideration, he reaches to the age of superannuation before the promotion, then obviously the avenue or pathway of proforma promotion comes into field for his rescue

If he lost his promotion on account of any administrative oversight or delay in the meeting of Departmental Promotion Committee (DPC) or Selection Board despite having fitness, eligibility and seniority, then in all fairness, he has a legitimate expectation for proforma promotion with consequential benefits

Unjustified delay in proforma promotion cases triggers severe hardship and difficulty for the civil servants and also creates multiplicity of litigation

Competent authority should fix a timeline with strict observance for the designated committees of proforma promotions in order to ensure rational decisions on the matters expeditiously with its swift implementation, rather than dragging or procrastinating all such issues inordinately or without any rhyme or reasons which ultimately compels the retired employees to knock the doors of Courts of law for their withheld legitimate rights which could otherwise be granted to them in terms of applicable rules of service without protracted litigation or Court's intervention.

Employees working for fifteen years as Supervisors at Federal Board of Revenue (FBR) were retired without promotion because no meeting of Departmental Promotion Committee (DPC) was held

Record (including comments by the respondent (FBR) revealed that the petitioners were eligible as per applicable rules when they were in service and their promotion was due before their superannuation, however, the same could not be materialized on account of the failure of the respondent department to convene and conduct DPC on administrative ground , which reason was not a plausible one for denying promotion to petitioners

High Court observed that where the right of civil servants to be considered for promotion got frustrated during the service, the Constitutional Courts had recognized the right of such civil servants to be considered for grant of pro forma promotion even after their superannuation

High Court set aside impugned order and directed the respondent-department to re-consider the petitioners for pro forma promotion

Constitutional petition was allowed, in circumstances.

Civil servant has a fundamental right to be promoted even after his retirement through awarding pro-forma promotion provided his right of promotion accrued during his service and his case for promotion could not be considered for promotion for no fault of his own and he is retired on attaining the age of superannuation without any shortcoming on his part pertaining to deficiency in length of service or in the form of inquiry and departmental action so taken against his right of promotion.

Promotion is generally an advancement in rank, which is granted on the basis of acquiring extra-qualifications or enhancement of skills or awarded in lieu of longstanding services of the employee as a token of satisfaction and appreciation over services rendered by him

Concept of pro-forma promotion is to remedy the loss sustained by an employee/civil servant on account of denial of promotion upon his legitimate turn due to any reason but not a fault of his own and in cases where a temporary embargo is created against his right for such promotion or a legal restraint is posed against his claim owing to any departmental proceedings inquiry, etc. against him and the said obstacle is done away with ultimately then in such a situation, his monetary loss and loss of rank is remedied through pro-forma promotion.

Employee was considered for promotion by the Departmental Promotion Committee and decision was in his favour subject to provision of Annual Confidential Reports for the missing period

Petitioner failed to submit his Annual Confidential Reports to the Departmental Promotion Committee

Had petitioner complied with the decision of Departmental Promotion Committee he would have been promoted

Civil servant had right to be considered for promotion if he was entitled to be promoted from a particular date but for no fault of his own

Employee was neither ignored nor any mala fide or illegality was on record against the department in granting him promotion to the higher cadre

Petitioner had failed to bring on record any departmental representation during the period when he was not promoted to the next grade

Nothing was on record that employee on department's failure to act on his representation approached any competent forum during the said period

Employee could not be granted proforma promotion when he was not prevented from being promoted or department was not negligent in discharging its responsibility

Constitutional petition was dismissed, in circumstances.

Civil servant not promoted on his turn on the ground that either his seniority was under dispute or was not determined; or, he was on deputation, training or on leave; or disciplinary proceedings were pending against him; or he was not considered by the selection authority inadvertently

When dispute as to seniority of such civil servant was resolved in his favour; or his deputation, training or leave was over; or disciplinary proceedings culminated in his favour, or where inadvertence for not considering his promotion was remedied, only then on subsequent promotion, such civil servant would rank and be deemed to have been promoted in the same batch at par with his contemporary batchmates who were promoted earlier to him.

Appeal was allowed in circumstances.

Claim of appellant was in consonance with law as his junior was promoted while he was ignored on the basis of adverse remarks recorded in his ACRs

Had such adverse remarks not been recorded in the ACRs, appellant would have been considered for promotion on the date when his junior was promoted

Claim of appellant to get himself promoted after the decision of Service Tribunal when his junior was promoted was his fundamental right

Proforma Promotion Committee was obliged to adjudge the case of appellant from the date when his junior was promoted after expunction of adverse remarks from his ACRs

Appellant became eligible to be considered for promotion by the Authority from the date when adverse remarks had precluded

Authority had incorrectly ignored the ACRs of the appellant which would amount to denying the relief granted by the Service Tribunal and upheld by the Supreme Court

Matter was remitted to the Authority with the direction to re-consider the case of the appellant as prayed for

Appeal was accepted in circumstances.

Matter directly and substantially in issue in the present appeal was the same which was directly and substantially in issue in the earlier appeal

Appellant had rightly been deferred for promotion due to fault of his own

Appellant could not claim proforma promotion in the circumstances of the case

Second representation was not competent under the law

Disposal of incompetent petition or representation by the competent authority did not create fresh cause of action

Appeal being not competent before the Tribunal, was dismissed, in circumstances.

Appellant was aggrieved of order passed by single Judge of High Court declaring respondent to be entitled to proforma promotion with all back benefits

Validity

Conditions required to be fulfilled for being eligible to be considered by appointing authority in respect of benefits of proforma promotion were; (i) person must be a civil servant; (ii) he/she was entitled to promotion from a particular date and; (iii) was wrongfully prevented from rendering service to Federation in a higher post for no fault of his/ her

Only if the appointing authority was satisfied that such three conditions were met then a direction could be issued for extending benefits of pay and allowances through proforma promotion

Single Judge of High Court could not make a declaration regarding entitlement of respondent regarding proforma promotion, as the respondent had approached High Court by invoking Constitutional jurisdiction for implementing judgment passed by Federal Service Tribunal, which did not include any determination or direction regarding grant or entitlement of proforma promotion

Direction for extending benefits through proforma promotion was within the exclusive domain of appointing authority who had to be satisfied that the conditions were fulfilled for passing an order or direction

Division Bench of High Court set aside the order passed by Single Judge of High Court

Intra-court appeal was allowed in circumstances.