Ch. Mehmood Ul Hassan 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.25 of 2015

Ch. Mehmood ul Hassan Versus Registrar, Lahore High Court, Lahore

JUDGMENT

Date of hearing: 20.06.2023.

Appellant by: Mr. Tallat Farooq Sheikh, Advocate. Respondent by: Mr. Zawar Ahmad Sheikh, Advocate.

MUHAMMAD SAJID MEHMOOD SETHI, J. / MEMBER:-

Through instant appeal, the appellant has assailed order dated 24.06.2015 passed by respondent, whereby appellant’s representation for grant of proforma promotion as District and Sessions Judge was declined.

2.Brief facts are that appellant was appointed as Civil Judge-cum-Judicial Magistrate vide notification dated 17.11.1985, promoted as Senior Civil Judge on 12.06.2002 and as Additional District & Sessions Judge on 10.11.2003. The appellant was under consideration for promotion as District and Sessions Judge along with other colleagues, who were granted promotion vide notification dated 15.12.2009 whereas case of appellant was deferred due to certain adverse remarks in his ACR for the period from 02.07.2009 to 17.11.2009. Appellant preferred representation praying that said remarks may be considered as of advisory nature, which was accepted. In the years 2010, 2011,2012, 2013 and 2014, case of appellant was taken up for promotion along with junior colleagues, but was deferred due to certain adverse remarks in ACR for the period from 01.01.2010 to 28.04.2010. Ultimately, appellant was granted promotion vide Notification dated 15.12.2014.

Service Appeal No.25 of 2015

Appellant submitted another representation that as the adverse remarks ceased to exist, therefore, he may very graciously be granted proforma promotion from the date his juniors were promoted i.e. 15.12.2009, which was declined vide impugned order dated 24.06.2015. Hence, this appeal.

3.Learned counsel for the appellant submits that appellant was deferred a number of times for promotion to the post of District and Sessions Judge, despite the fact that adverse remarks recorded in ACRs stood expunged by the competent authority. Adds that appellant is entitled for proforma promotion in the light of judgment passed in Service Appeal No. 08/2009, which was allowed and appellant therein was granted proforma promotion. Further submits that there is nothing adverse in service record of appellant as the remarks have already been declared advisory in nature and the other remarks expunged. In the end, he submits that appellant has been subjected to gross discrimination in the matter as similarly placed other persons junior to him have already been granted promotion.

4.On the other hand, learned counsel for respondent defends the impugned order.

5.Heard. Available record perused.

6.Perusal of record shows that adverse remarks appearing in ACR for the period w.e.f. 02.07.2009 to 17.11.2009 have been treated as advisory by the Administration Committee. Whereas adverse remarks reflecting in ACR for the period w.e.f. 01.01.2010 to 28.04.2010 were expunged by the Administration Committee on 28.07.2012. Record also establishes that complaint against appellant i.e. CO 190/2011 was also filed by the order of competent authority. Record further depicts that no departmental proceedings / inquiries etc. were initiated against appellant wherein any penalty was imposed against the appellant. Regarding other allegations about work and conduct of appellant, he was repeatedly deferred for specific periods. It seems that the adverse remarks /

Service Appeal No.25 of 2015

allegations forming base for repeated deferment were not permanent and stood vanished as the appellant was ultimately awarded promotion as District & Sessions Judge vide Notification dated 15.12.2014.

7.Needless to say that there is a difference between deferment and supersession in a way that deferment depicts temporary non consideration while supersession is done after due consideration and in case of supersession a person cannot claim proforma promotion as of right. Reference is made to Muhammad Rashid Bhatti v. The Director General FIA, Headquarters, Islamabad and others (2018 SCMR 1281).

8.We are convinced that instant case is of deferment wherein some of the temporary hurdles (adverse remarks and complaint) stand removed and the others impliedly vanished as appellant has already been promoted as District & Sessions Judge. When the temporary embargoes are not existing, the proforma promotion is to be given under well-established principles of law. Reference can be made to Arshad Ali v. WAPDA and others [2020 PLC (C.S.) 1226] and Muhammad Aslam A.S. v. D.I.G. Police, Faisalabad Range, Faisalabad and 10 others [2001 P L C (C. S.) 1298].

9.In view of the above, instant appeal is allowed and impugned order is set aside. Consequently, appellant’s representation for grant of proforma promotion shall be decided afresh keeping in view the case law on the subject and afore- noted observations.

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

Announced in open Court on________________ Chairman Member

*Mian Farrukh*