If adverse remarks against an employee set aside, supersession orders cease to exist: SC

ISLAMABAD: The Supreme Court declared that if adverse remarks recorded against an employee are set aside, then the supersession orders cease to exist.

“Once the adverse remarks were expunged by the Tribunal and that finding was upheld by this Court (the Supreme Court), they ceased to exist in the service record ab initio,” noted a two-member bench, headed by Justice Syed Mansoor Ali Shah, in an appeal of the federal government against the decision of the Federal Service Tribunal.

It noted that the orders of supersession were derivative and consequential in nature; once their premise was extinguished, they stood denuded of all legal effect. Non-challenge to such supersession orders; therefore, carries no independent significance. “One cannot be compelled to challenge a shadow of a decision whose substratum has been judicially erased.”

The Court observed that the insistence that the respondent should have separately impugned those orders amounts to requiring a meaningless formality – an exercise in futility that the law does not demand.

Brief facts of the case are that adverse remarks were recorded against the respondent (Roohul Amin, an employee of the Ministry of Defence) in 2013. Subsequently, his case came before the Departmental Promotion Committee (DPC) for promotion to the post of Sub-Engineer B&R Grade-I (BS-14) in 2015, but he was superseded on the grounds of these adverse remarks.

The respondent met the same fate in the DPCs held in 2016, 2017, 2018, and 2019. He separately challenged the adverse remarks, which were finally set aside by the Federal Service Tribunal on 26.09.2018, and that decision was upheld by the Supreme Court on 06.05.2019. Afterward, the DPC convened in March 2020 and promoted the respondent with effect from 22.07.2020.

The respondent contends that he ought to have been promoted from 27.07.2015 – the date when he first became entitled to promotion – but was wrongfully superseded based on adverse remarks that no longer exist in the record. His departmental representation claiming an ante-dated promotion was rejected on 09.12.2020.

The subsequent representation also failed, leading him to file an appeal before the Tribunal, which, through the impugned judgment dated 02.11.2022, allowed his claim and held that he was entitled to be promoted from 2015. The federal government has assailed this judgment before the apex court.

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