MUHAMMAD SALEEM KHAN Versus SECRETARY, MINISTRY OF DEFENCE, GOVERNMENT OF PAKISTAN
This petition for leave to appeal challenged a Federal Service Tribunal judgment that denied the petitioner's claim for promotion from an earlier date. The petitioner, a Sub-Engineer, contended that his promotion was delayed due to adverse remarks in his Annual Confidential Report (ACR) for 1999, which were never communicated to him, and that the ACR covered a period of less than three months, violating the Performance Evaluation Guide. The core legal questions were whether uncommunicated adverse remarks could legally impede promotion and whether an ACR covering less than three months was valid for consideration. The Supreme Court held that adverse remarks not communicated to a civil servant cannot be used to deny promotion, and an ACR covering less than three months is invalid for such purposes. Consequently, the Court set aside the Tribunal's judgment, allowing the appeal and ruling that the appellant was entitled to promotion from the date his juniors were promoted, thereby maintaining his seniority relative to his batchmates.
- Can adverse remarks in an Annual Confidential Report be used to deny promotion if they were never communicated to the civil servant?
- Is an Annual Confidential Report covering a period of less than three months valid for consideration in promotion matters?
- If a civil servant is promoted after being initially bypassed, is he entitled to seniority from the date his juniors were promoted?
ORDER
ABDUL HAMEED DOGAR, C.J.--- Through this petition petitioner seeks leave to appeal against judgment, dated 31-10-2007 passed by learned Federal Service Tribunal, Islamabad, whereby Appeal No.992(R)(C.S.) of 2004 filed by him claiming promotion with effect from 30-7-2004 instead of 26-12-2005 was dismissed.
2. Briefly, stated facts giving rise to the filing of instant petition are that petitioner joined his service as Sub-Engineer (Grade-II) in Engineer-in-Chief's Branch on 10-4-1986 and subsequently promoted to the post of Sub-Engineer (Grade-I). Respondent No.2 vide Order No.1017/9/EIE, dated 11-8-2004 promoted Sub-Engineers junior to petitioner as AEE/M, ignoring the criteria laid down for the promotion. Feeling aggrieved, petitioner filed departmental representation to respondent No.1 which was not responded despite the lapse of statutory period of 90 days. As such, he filed appeal before the learned Federal Service Tribunal, Islamabad on 30-11-2004 which was admitted for regular hearing. During the pendency of appeal, the petitioner was promoted as AEE/M vide order, dated 6-1-2006 with effect from 26-12-2005 but not from due date i.e. 30-7-2004. Thus, he filed amended appeal which came up for hearing and was dismissed vide impugned judgment as stated above.
3. We have heard Mr. Muhammad Shoaib Shaheen, learned counsel for the petitioner, Ms. Nahida Mehboob Ellahi, learned D.A.-G. and private respondents appearing in person at length and have gone through the record and proceedings of the case in minute particulars.
4. It is vehemently contended by learned counsel for the petitioner that the impugned judgment of the learned Federal Service Tribunal is against the facts and law. According to him, petitioner had been superseded because of adverse remarks contained in his A.C.R. for the year 1999 which were never conveyed to him. He referred to para.3.1(vii) of the Performance Evaluation Guide wherein it has been stated that a confidential report containing adverse remarks should not be taken into consideration until it has been communicated in writing to the officer concerned within one month from the date the report is countersigned. He further contended that the A.C.R. in question is for the period from 5-10-1999 to 31-12-1999 and in view of para.2.24A(ix) of the Performance Evaluation Guide it should not be considered as the period is less than three months. In support he placed reliance on the case of Abdul Jabbar Khan v. Government of Sindh 1996 SCMR 850 and Muhammad Farooq Chauhan v. The Province of Punjab PLD 1987 SC 271.
5. When confronted with the above contentions of learned counsel for the petitioner, learned Deputy Attorney-General could not controvert the same and admitted that A.C.R. is for a period less than three months which cannot be considered against petitioner.
6. The respondents have not brought anything on record showing that adverse remarks were communicated to the petitioner within the time as contemplated by the Rules. Non-communication of adverse remarks makes the authenticity of such remarks ineffective and petitioner cannot suffer the consequences of any adverse order until the same was communicated to him enabling him to challenge the same before competent forum. It was held by this Court in the case of Muhammad Farooq Chauhan referred (supra) that in case of promotion, the adverse remarks would be ignored only if they are not communicated. It was also held by this Court in the case of Abdul Jabbar (supra) that if a civil servant, who has not been considered for promotion at a stage and is subsequently, promoted and no order for inter se seniority has been passed by the competent authority, then such civil servant would. be entitled to have been promoted in the same batch as his juniors., meaning thereby that he will maintain the seniority of his batchmates.
7. In view of above, this petition is converted into appeal and is allowed. The impugned judgment of the learned Federal Service Tribunal, Islamabad is set aside. The appellant shall be entitled for promotion from the date his juniors were promoted. No orders as to costs.
M.B.A./M-76/SC Appeal allowed.
Cited by 2 cases
- Fazal Raziq vs The Government of Pakistan through Secretary 2022 PHC 314, 2023 PLJ Peshawar 20, 2024 PLC (C.S.) 1419
- Mohsin Furqan vs National Bank of Pakistan and another 2021 SHC 222