Raja Muhammad Shafique Javed 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.05 of 2017

Raja Muhammad Shafique Javed Versus Lahore High Court, Lahore through its Registrar

JUDGMENT

Date of hearing: 20.06.2023.

Appellant by: Mr. M. A. Ghaffar-ul-Haq, Advocate. Respondent by: Mr. Jawwad Tariq Nasim, Advocate.

MUHAMMAD SAJID MEHMOOD SETHI, J. / MEMBER:-

Through instant appeal, appellant has assailed vires of order dated 03.05.2017, passed by respondent, whereby appellant’s representation for grant of proforma promotion as Senior Civil Judge, Additional District & Sessions Judge and District & Sessions Judge, was declined.

2.Brief facts of the case are that appellant joined the District Judiciary as Civil Judge in the year 1978, however, upon a complaint filed on 09.02.1991, a charge-sheet and statement of allegation was served upon the appellant in the year 1999, which culminated in issuance of notification dated 31.01.2001 for dismissal of appellant from service. Appellant challenged said notification by way of filing Service Appeal No.51 of 2001, which was allowed by this Tribunal vide judgment dated 10.12.2004 with direction to reinstate the appellant into judicial service with back benefits, which was upheld by the Hon’ble Apex Court vide order dated 05.10.2006, passed in Civil Petition No.599-L of 2005. Consequently, vide notification dated 01.11.2006, appellant was reinstated into service as Civil Judge. Appellant filed representations for grant

Service Appeal No.05 of 2017

of proforma promotion, which remained unattended and as a protest, he submitted his resignation, which was accepted vide notification dated 09.05.2009, which was challenged by the appellant. Appellant also filed Crl. Org. Petition No.24 of 2009 in Civil Petition No.599-L of 2005 before the Hon’ble Supreme Court on the allegation that appellant was not granted back benefits, in that, he was not promoted to the post of Senior Civil Judge despite the fact that his batch mates were promoted in the year 1995 and further that he was not granted pension. Said petition was disposed of vide order dated 23.04.2012, passed by the Hon’ble Supreme Court with the observation that appellant may make representation to the High Court which shall be considered keeping in view the facts of the case. As a result, appellant filed representation on 30.04.2012, which was declined vide order dated 07.06.2012. Appellant assailed said order in appeal but same was dismissed vide judgment dated 06.03.2015. Appellant filed Civil Petitions No.517 & 518 of 2015, which were allowed vide order dated 11.04.2016 and matter was sent back to this Tribunal for decision afresh in accordance with law. As a result, appellant’s appeal was allowed vide judgment dated 27.05.2016 and respondent was directed to place appellant’s representation for grant of proforma promotion before the competent authority for its reconsideration and decision afresh keeping in view the judgments / orders passed by this Tribunal as well as Hon’ble Apex Court. However, again appellant’s representation was declined vide order dated 03.05.2017. Hence, instant appeal.

3.Learned counsel for appellant submits that despite rendering 31 years of unblemished judicial service, appellant is being denied proforma promotion from the date when his juniors / batch mates were granted promotion, which is not only clear violation of applicable law, but same amounts to frustrate the fundamental rights of appellant. He has referred to The Province of the Punjab through the Secretary, Services and

Service Appeal No.05 of 2017

General Administration, Lahore v. Syed Muhammad Ashraf (1973 SCMR 304), Iftikharullah Malhi v. Chief Secretary and another (1998 SCMR 736) and Faiz Muhammad and another v. Member (Revenue), Board of Revenue, Punjab and 2 others [1984 PLC (C.S.) 1554]. He adds that appellant’s case was considered by the authority and deferred on account of incomplete Annual Confidential Reports (“ACRs”), however, since appellant was not in service for the period in question then how could he produce the ACRs for said period.

4.Contrarily, learned Legal Advisor of respondent defends the impugned order by contending that appellant having been retired, cannot claim promotion. He contends that proforma promotion cannot be claimed as of right in terms of sub-sections (2) & (5) of Section 8 of the Punjab Civil Servants Act, 1974. He maintains that even ACRs of appellant were incomplete.

5.Arguments heard. Available record perused.

6.Record shows that against judgment dated 06.03.2015, passed by this Tribunal, appellant filed Civil Petitions No.517 & 518 of 2015, which were allowed by setting aside the aforesaid judgment and sending the case back to the Tribunal for decision afresh. In post remand proceedings, Service Appeal No.07 of 2012, filed by the appellant, was allowed vide judgment dated 27.05.2016, passed by this Tribunal. The sole grievance of appellant is that he is entitled to grant of proforma promotion in the light of aforesaid judgment dated 27.05.2016, relevant excerpt whereof is reproduced hereunder:- “6. The request made by the appellant’s counsel is reasonable and, therefore, we are inclined to allow the same. Resultantly the letter No.469 / RHC / C1 dated 07.06.2012 is set aside and the respondent is directed to place appellant’s representation dated 30.04.2012 for grant of pro forma promotion before the Competent Authority for its re-consideration and fresh decision in the light of: (i) judgment dated 10.12.2014 passed by this Tribunal in S.A. No.51 of 2001; (ii) order dated 05.10.2006 passed by the Hon’ble Supreme Court of Pakistan in Civil Petition No.599-

Service Appeal No.05 of 2017

L of 2005; (iii) order dated 23.03.2012 of the Hon’ble Supreme Court of Pakistan in Criminal Original Petition No.24 of 2009 in Civil Petition No.599-L of 2005; and, (vi) order dated 11.04.2016 of the Hon’ble Supreme Court of Pakistan in Civil Petitions No.517 & 518 of 2015.”

7.Appellant is seeking proforma promotion as Senior Civil Judge w.e.f. 09.11.1995, as Additional District & Sessions Judge w.e.f. 19.07.1997 and as District & Sessions Judge w.e.f. 28.10.2002, when his junior colleagues were promoted. As per record, complaint was filed in the year 1991, order of dismissal from service was passed in the year 2001, reinstatement along with back benefits was ordered by this Tribunal in the year 2004 (upheld by the Hon’ble Supreme Court in 2006) and acted upon through notification dated 01.11.2006. It means that appellant was never out of service, thus, was entitled to back benefits which includes his promotion if he was otherwise entitled as per law. Admittedly, appellant stood retired and under the law, a civil servant is entitled to be promoted even after his retirement through awarding proforma 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. Record reflects that appellant was facing departmental inquiry leading to his dismissal from service, therefore, his promotion was deferred. Eventually, he was reinstated into service with back benefits while exonerating him from the charges, thus, he became entitled for proforma promotion from the date on which he would otherwise have been promoted with consequential benefits. An inaction in this regard would trigger severe hardship and difficulty for the civil servant and also create multiplicity of litigation. Reliance is placed upon Chief Secretary, Sindh v. Riaz Ahmed Massan and another (2016 SCMR 1784), Federation of Pakistan through Secretary, Ministry of National Health Services v. Jahanzeb and others (2022 SCMR 2020) and Ch. Shabbir Hussain v.

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Registrar, Lahore High Court, Lahore etc. [PLJ 2015 Tr. C. (Services) 227].

8.Needless to say that once an employee is reinstated in service after exoneration of charges against him, the period during which he remained dismissed, cannot be attributed as a fault on his part, but it was due to the order passed by the employer. An employee, i.e. civil servant in this case, whose wrongful dismissal has been set aside, goes back to his service as if he were never dismissed from service. The restitution of employee, in this context, means that there has been no discontinuance in his service and for all purposes he had never left his post. Reference is made 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). Therefore, argument of learned Legal Advisor for respondent regarding disentitlement of appellant for grant of proforma promotion after retirement, being misconceived, is repelled. The other ground regarding non-provision of ACRs of intervening period is ill-founded in view of peculiar facts and circumstances of this case, especially when appellant was not in service.

9.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 / her own. In cases where a legal restraint was posed against his / her claim owing to any departmental proceedings, inquiry etc., when the said obstacle is done away with ultimately. Then in such a situation, his / her 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].

Service Appeal No.05 of 2017

10.In view of the above, instant appeal is allowed. Consequently, impugned order is set aside. We direct that Departmental Authorities should proceed to consider the case of appellant for proforma promotion as per his entitlement in accordance with law.

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

Announced in open Court on .

Chairman Member

*A.H.S.*