Jamil Ahmad Khokhar vs The Registrar

Stereo. H C J D A-38.

JUDGMENT SHEET

IN THE PUNJAB SUBORDINATE JUDICIARY

SERVICE TRIBUNAL LAHORE

JUDICIAL DEPARTMENT

Service Appeal No.14 of 2013

Jameel Ahmed Khokhar Versus The Registrar, Lahore High Court, Lahore

JUDGMENT

Date of hearing: 20.06.2023.

Appellant by: Mr. Ijaz Mehmood Ch., Advocate. Respondent by: Mr. Ishfaq Qayyum Cheema, Advocate.

MUHAMMAD SAJID MEHMOOD SETHI, J. / MEMBER:-

Through instant appeal, appellant has assailed vires of order dated 10.06.2013, passed by respondent, whereby appellant’s representation for grant of proforma promotion as Senior Civil Judge was declined.

2.Brief facts of the case are that pursuant to inquiry proceedings conducted into various charges including misconduct, harassment and receipt of illegal gratification, levelled against the appellant, major penalty in the form of compulsory retirement or removal from service was recommended to be imposed upon the appellant. A show cause notice was issued to the appellant, whereafter major penalty of compulsory retirement from service was imposed upon him vide notification dated 27.04.2001. Feeling disgruntled, appellant filed service appeal, which was allowed in the manner that aforesaid order was set aside vide judgment dated 24.07.2003 and appellant was reinstated into service without any monetary back benefits, however, it was specifically observed that for other service benefits like seniority etc., appellant shall be deemed to be continuing in service during the interregnum. The aforesaid judgment was upheld by the

Service Appeal No.14 of 2013

Hon’ble Supreme Court vide judgment dated 28.04.2006. Consequently, vide notification dated 03.11.2006, appellant was reinstated into service and held entitled for other service benefits like seniority etc. excluding monetary back benefits. Afterwards, appellant moved representation for grant of proforma promotion, which was declined vide order dated

3.Learned counsel for appellant submits that impugned order declining proforma promotion of appellant is against the judgment dated 24.07.2003, passed by this Tribunal as well as spirit of judgment dated 28.04.2006, passed by the Hon’ble Supreme Court, which has binding effect in terms of Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973 (“the Constitution”). He adds that appellant has been subjected to gross discrimination in the matter as his colleague, namely Mr. Aaqib Nazir (who is junior to the appellant), was promoted to the rank of Senior Civil Judge-cum-Judicial Magistrate (BS-18) vide notification dated 07.12.2005, whereas appellant’s seniority is being compromised in utter disregard of the judgments referred hereinabove, as he has been deferred for promotion by the respondent. Learned counsel while referring to the doctrine of legitimate expectancy argues that appellant is entitled to grant of proforma promotion. In support, he has referred to Chairman, State Life Insurance Corporation of Pakistan, Karachi and others v. Siddiq Akbar (2013 SCMR 752) and Muhammad Sharif and others v. Inspector General of Police, Punjab, Lahore and others (2021 SCMR 962).

4.On the contrary, learned Legal Advisor of respondent defends the impugned order by contending that appellant’s promotion was deferred in meeting held on 31.05.2007 and 27.09.2008, till earning of good ACRs, however, when Mr. Aaqib Nazir, the officer junior to appellant at that time, was promoted as Senior Civil Judge, appellant was not in service.

Service Appeal No.14 of 2013

5.Arguments heard. Available record perused.

6.Record shows that in the previous round of litigation, appellant was reinstated into service vide judgment dated 24.07.2003, relevant part whereof is reproduced hereunder for facility of reference:-

“15. Having thus examined the records, we are constrained to observe that this is case of no evidence so far as the said charges No.1 and 4 are concerned. We are, therefore, not in a position to uphold the said major penalty imposed upon the appellant. This appeal is accordingly allowed and the impugned order dated 27.04.2001 compulsorily retiring the appellant from service is set aside. The result would that the appellant shall stand reinstated in service without any monetary back benefits. However, for other service benefits like seniority etc. he shall be deemed to be continuing in service during the interregnum.”

[emphasis supplied]

7.The above order, having been kept intact by the Hon’ble Apex Court, crystalizes that although appellant was disentitled for any monetary back benefits, but he was held entitled for other service benefits including seniority having been restored in service as if he was never out of it.

8.Law on the subject is very clear that proforma promotion can be granted in a case where an officer whose junior was promoted on regular basis but he was deferred due to the reason that he was facing a departmental inquiry provided eventually he was exonerated of the charge. Even otherwise, once an employee is reinstated into service after exoneration of the charges levelled against him, the period during which he remained either suspended or dismissed or compulsorily retired, cannot be attributed as a fault on his part. Delay in proforma promotion cases triggers severe hardship and difficulty for the civil servants and also creates multiplicity of litigation. In this case, appellant having been denied proforma promotion, his legitimate right of expectancy has been frustrated. Reliance is placed upon the case law reported as Siddiq Akbar (supra) and

Service Appeal No.14 of 2013

Federation of Pakistan through Secretary, Ministry of National Health Services v. Jahanzeb and others [2023 PLC (C.S.) 336].

9.Needless to say that the concept of proforma promotion is to remedy the loss sustained by an employee / civil servant on account of denial of promotion upon his / her legitimate turn due to any reason but not a fault of his own and in cases where a temporary embargo was created against his / her right for such promotion or a legal restraint was posed against his / her claim owing to any departmental proceedings, inquiry etc., and the said obstacle is done away with ultimately. Then in such a situation his monetary loss and loss of rank is remedied through proforma promotion. Reliance is placed upon Arshad Ali v. WAPDA and others [2020 PLC (C.S.) 1226].

10.Resultantly, this appeal is allowed and impugned order is set aside. Respondent is directed to process the case of appellant for proforma promotion as per law.

(Mirza Viqas Rauf) (Muhammad Sajid Mehmood Sethi) Chairman Member

Announced in open Court on .

Chairman Member

*A.H.S.*