'SARDAR SAID MUHAMMAD KHAN C.J.---This appeal has been directed against the judgment of the High Court dated 10-10-1998 whereby the writ petition filed by the appellant, herein, was dismissed.
2. The brief facts of the case are that the appellant, herein, a retired Deputy Secretary, was serving as Section Officer in Azad Jammu and Kashmir Government. His batch-mates were promoted as Deputy Secretaries with retrospective effect from 15-2-1989. The appellant, herein, could not be promoted at the time of the promotion of his batch-mates because his name in the seniority list was not recorded at the proper serial number., Thus, he approached the concerned authority and he was allocated the proper place in the seniority list. Thereafter, he was also promoted as Deputy Secretary with effect from 30-1-1994. He filed a review petition before the Prime Minister praying that he might be also promoted as Deputy Secretary with retrospective effect from 15-2-1989 and not from 30-1-1994. The Prime Minister accepted his review petition vide his order dated 2-10-1995 and directed the promotion of the appellant from 15-2-1989 but no formal order was issued by the concerned authority. Subsequently, a proposal was submitted to the Prime Minister that the order of retrospective promotion of the appellant might be recalled. However, the Prime Minister again rejected the proposal observing that the order of the appellant's retrospective promotion from 15- 2-1989 did not suffer from any legal infirmity. Meanwhile, as a result of general elections, new Government came into existence. Thereafter, a fresh order was passed by the new Prime Minister whereby the order of the former Prime Minister giving retrospective effect to the promotion of the appellant, herein, was withdrawn. A writ petition was filed by the appellant in the High Court challenging the order of the latter Prime Minister, inter alia, on the ground that the orders of the former Prime Minister could not be recalled, especially so when a proposal to recall the order was also turned down by the former Prime Minister. It was prayed that the orders dated 12-5-1997 and 16-5-1997 might be declared as null and void and direction may be issued to the respondents that the appellant, herein, should be promoted from 15-2-1989 as was done in case of his other batch- mates.
3. Ch. Muhammad Ibrahim Zia, Advocate, the learned counsel for the appellant, has argued that the High Court has committed an error in holding that as the formal orders in pursuance of the direction of the former Prime Minister were not issued, the writ could no be issued on the basis of the noting side of the file. He has argued that the order passed on review petition by the .Former Prime Minister remained intact and non-issuance of formal order would not detract from the finality of the said order. He has further argued that even otherwise, the appellant, herein, has been discriminated against because his batch-mates were given pro forma promotion from 15-2-1989 but the same was refused to the appellant, herein. The learned counsel has cited following authorities in support of his contentions:- ' In case reported as Miss Shaghufta Maan v. Islamia University, Bahawalpur (1995 CLC 1500), a writ petition was filed by the affected candidate alleging that she suffered due to the fact that the relevant information was not properly conveyed to her, the writ petition was allowed observing that no one should suffer due to the mistake of an official.
' In case reported as Syed Muhammad Saqalin v. Chief Secretary, Government of the Punjab (1981 PLC (C.S.) 651), it was held that the question as to whether the Government after notifying the date of pro forma promotion to the appellants, could unilaterally withdraw the date of promotion by subsequent notification. It was held that once the pro forma promotion was given to the concerned civil servant, the same could not be withdrawn to his detriment without hearing him.
4. In reply, Raja Shiraz Kayani, the learned Advocate-General has controverted the arguments advanced by the learned counsel for the appellant. He has argued that the impugned orders did not suffer from any legal infirmity and it is the discretion of the competent authority to give pro forma promotion from a certain date. The learned Advocate-General has argued that the appellant was regularly promoted as Deputy Secretary on 7-12-1994 but his promotion was given retrospective effect from 30-1-1994, the date on which he was promoted as Deputy Secretary on the acting basis. The learned counsel has further submitted that in case of other batch-mates of the appellant, the promotion was given retrospective effect from the year 1989 because they held the posts of Deputy Secretaries on acting charge basis from the said date. Thus, the learned counsel has argued that in both the cases, the retrospective operation to the promotion was given from the dates, when the respective civil servants were promoted on acting charge basis.
Therefore, no discrimination was made in the case of the appellant.
5. We have given due consideration to the argument advanced at the Bar. The High Court was not correct in holding that as the order accepting the review petition of the appellant by the former Prime Minister was on noting side, the same could not be implemented without issuance of a formal order in that regard. If a direction is issued by the Prime Minister on an appeal or review etc., a writ can be issued in appropriate cases for the implementation of the same as has been held by this Court in a number of cases. A reference may be made to the judgment of Full Bench of this Court entitled Ejaz Ahmad Awan v. Syed Muhammad Manzoor Ali shah (Civil Appeal No,159 of 1998 decided on 1-3-1999), wherein, after considering the case-law on the subject, it was held that in appropriate cases, a writ can be issued in service matters for the implementation of an order passed by a competent authority according to the guidelines enumerated therein. Thus, the observation of the High Court that as formal order was not issued in pursuance of the order, whereby his review petition was accepted, the writ cannot be issued, is not sustainable. It may be observed that after the acceptance of the review petition by the competent authority, it is the duty of the concerned authority to implement such order, irrespective of issuance of so-called formal order. The relevant appeal rules do not visualize any. Such formal order' after the acceptance of his appeal or review etc. Therefore, the High Court was not correct in holding that the writ could not be issued, because no formal order was issued after the acceptance of the review petition filed by the appellant.
6. The next question which needs resolution is as to whether the writ can be refused because the appellant, herein, was not holding the post of Deputy Secretary on acting charge basis prior to the 30-1-1994. It may be observed that it is shown that the appellant was not promoted in 1991 when his batch-mates were promoted without there being any fault on his part, he can claim the pro forma promotion, irrespective of the fact whether he was holding the post of Deputy Secretary on acting charge basis or not. A reference may be made to the following authorities in support of the aforesaid view:-- ' In a case reported as Ch. Yar Muhammad Durraiana v. Government of the Punjab (1992 PLC (C.S.)
95), wherein the civil servant concerned sought pro forma promotion on the ground that he was not promoted due to minor punishment as a result of an inquiry against him while others were promoted. It was found by the High Court that the minor punishment awarded to him was no ground to refuse him the promotion to the next higher grade. Thus, it was observed that his promotion was illegally deferred and, as such, a direction was issued to place the case of the concerned civil servant before the appropriate selection authority to consider the case of his pro forma promotion..
' In a case reported as Ch. Muhammad Saleem v. Government of the Punjab (1994 SCMR 517), the promotion of a civil servant was deferred because an inquiry was pending against him. The Supreme Court of Pakistan observed that a civil servant would be entitled to pro forma promotion if he is wrongly deprived of promotion. However, in the said case it was found that as the concerned civil servant was punished as a result of an enquiry against him, he could not be given pro forma promotion. Consequently, the petition for leave to appeal was rejected.
7. It is evident from the authorities that if the promotion of a civil servant is deferred without any fault on his part, he can be given pro forma promotion, irrespective of the fact whether he was holding the relevant post on acting charge basis or not. In the instant case, the promotion of the appellant was deferred because he was not allocated proper place in the seniority list, otherwise he would have also been promoted with retrospective effect from 15-2-1989 as was done in the case of his other batch-mates. However, subsequently, when the appellant was allocated the right place in the seniority list, he was promoted but instead of giving retrospective effect to his promotion from 15-2-1989, he was promoted with retrospective effect from 30-1-1994, the date on which he was promoted as Deputy Secretary on acting charge basis. It may be observed that his case is that his promotion was deferred due to incorrect seniority list and, thus, he could not be denied the pro forma promotion from the date from which his batch-mates were given the same.
His claim was accepted by the former Prime Minister; thereafter, a representation was made by the Secretary, Services and General Administration Department to review the order whereby the appellant was given retrospective promotion from 15.2-1989 but the same was also rejected. Thus, the order of the former Prime Minister giving retrospective effect to his promotion from 15-2-1989 had attained. Finality. Thereafter, the matter could not be subsequently re-opened by the latter Prime Minister. Therefore, the contention of the learned counsel for the respondents that as the appellant was not holding the post of Deputy Secretary on acting charge basis prior to 30-1-1994, he could not be given retrospective promotion from 15-2-1989, is not tenable and is hereby repelled.
' In the light of what has been stated above, we accept the appeal, set aside the impugned order and direct that the promotion order of the appellant shall be amended giving it retrospective effect from 15-2-1989 instead of 30-1-1994. We make no order as to the costs.