' The petitioner is serving in the Communication and Works Department as Executive Engineer (B.S. 18). He is due to retire on 4-8-2003 on reaching the age of superannuation. Alongwith others he was recommended for promotion by the Provincial Selection Board as Superintending Engineer (BS-19) in the meeting held on 26-3-2001. The said recommendation was approved by the Governor of the Punjab i,e, the competent authority on 7-4-2001. These facts have not been disputed in the parawise comments submitted by the Department. However, a formal notification of the officers recommended for promotion by the Provincial Selection Board in the meeting dated 26-3-2001 was issued on 19-4-2001 but the name of the petitioner was not there. He made a representation which did not find favour with the departmental authorities. According to the communication dated 22-3-2003 addressed to the learned Additional Advocate-General Punjab, the case of the petitioner was considered by the Provincial Selection Board in the meeting held on 11-1-2003 and he was superseded for promotion as Superintending Engineer (BS-19) in view of major penalty of recovery of Rs,38,000.00 imposed upon him. Through this petition, the petitioner has prayed for a direction to the respondents for issuing notification of promotion of the petitioner.
2. The learned counsel for the petitioner submits that vide order dated 13-11-2001 major penalty of recovery of an amount of Rs,38,000.00 and minor penalty of withholding of increment fora period of two years were imposed upon the petitioner against which he agitated the matter before the Punjab Service Tribunal in Appeal No,1418. Of 2002 which was allowed vide judgment dated 3-10- 2002. The Department filed a petition for leave to appeal before the Hon'ble Supreme Court which was dismissed on 31-3-2003. It is contended that since the only stigma, on the basis of which promotion of the petitioner was withheld, stood removed, a formal notification was required to be issued promoting the petitioner to BS-19 as Superintending Engineer so as to give effect to the recommendation of the Provincial Selection Board and its approval by the competent authority.
The learned counsel also brought to my notice that apart from the penalties imposed upon the petitioner vide order dated 13-11-2001 another major penalty of the recovery of Rs,19407.00 was imposed upon the petitioner vide order dated 31-10-2001. However, on his departmental, appeal, the said penalty was converted into "censure". He maintains that one isolated penalty of "censure" was too heavy a toll to be extracted from the petitioner as withholding of promotion is itself a major penalty and rule of double jeopardy is attracted. Reliance is being placed on Captain Sarfraz Ahmed Mufti v. Government of the Punjab and anothers (1991 SCMR 1637).
3. On the other hand the learned Assistant Advocate-General submits that against the order dated 31-3-2002 of the Hon'ble Supreme Court, refusing leave, the Department is taking steps to file review petition. It is further submitted that the writ petition is hit by the bar of Article 212 of the Constitution and no civil servant has a vested right to be promoted. He placed reliance on Sarfraz Ahmad Hiraja v. Water and Power Development Authority and others (1999 SCMR 2828), Abdul Wahab Khan v. Government of the Punjab and 3 others (PLD 1989 SC 508), Pakistan Telecommunication Corporation and another v. Riaz Ahmad and 6 others (PLD 1996 SC 222) and Director of Education v. Government of the Punjab and others 1997 PLC (C.S.) 216).
4. The submissions made by the learned counsel for the parties have been considered. The recommendation of the Provincial Selection Board and the order passed by the competent authority were not implemented only in anticipation of an inquiry and in one case the penalty was imposed on 31-10-2001 and in the other on 13-11-2001. As far, as the first is concerned, it was converted into "censure". It may be noted that vide order dated 13-11-2001 of the departmental authority not only the penalty of recovery of the amount of Rs,38,000 was imposed upon the petitioner but two increments were also ordered to be withheld. Both these penalties were set aside but the learned Punjab Service Tribunal and the judgment was affirmed by the Hon'ble Supreme Court. The letter dated 22-3-2003 does not indicate whether the order passed by the competent authority on the recommendations of the Provincial Selection Board in the meeting held on 26-3- 2001, to the extent of the petitioner, was recalled. The decision, to supersede the petitioner, in fact, amounts to undergoing and over-ruling the order dated 7-4-2001 passed by the competent authority. This could not have been done unless the order dated 7-4-2001 was recalled.
5. I may add that withholding of promotion is a penalty and therefore refusal to issue a formal notification of the promotion of the petitioner, after he had been recommended by the Provincial Selection Board which was duly approved by the competent authority, was illegal and arbitrary in as much as that it was withheld on the ground of an anticipated departmental inquiry. In Tahir Latif Sheikh v. Federation of Pakistan and another (2000 PLC (C.S.) 582) an officer of the Income Tax Group was recommended for promotion by the Central Selection Board which was approved by the competent authority i,e, Prime Minister but a formal notification was not issued on the ground that after the approval of the Prime Minister a complaint of corruption had been received against him. It was observed that on the basis of a complaint,- which remains an unsubstantiated allegation only, unless found to be correct, promotion of the petitioner in the said case could not be withheld.
6. The question whether promotion of an officer, who is otherwise eligible, can be withheld only on the ground of contemplated initiation of disciplinary proceedings was considered by the Supreme Court of India in The State of Madhya Pradesh v. Bani Singh and another (AIR 1990 SC 1308) and the following observations were made; "Normally, pendency or contemplated initiation of disciplinary proceedings against a candidate must be considered to have absolutely no impact upon, to his right to be considered. If the department enquiry had reached the stage of framing of charges after a prima facie case has been made out, the normal procedure followed as mentioned by the Tribunal was sealed cover' procedure but if the disciplinary proceedings had not reached that stage of framing of the charge after prima facie case is established the consideration for the promotion to a higher or selection grade cannot be withheld merely on the ground of pendency of such disciplinary proceedings."
7. It may also be observed that even an officer against whom a departmental inquiry has already been initiated, before consideration of his case for promotion, is not an outcast for the purpose of consideration of his case for promotion and there is no bar on his promotion. The approach that a civil servant cannot or should not be promoted during pendency of a departmental inquiry is not to be accepted and applied as an inflexible rule. It will depend on the facts and circumstances of each individual case. However, the Selection Board and the competent authority are required to consider the effect of the pending inquiry and then to determine whether a civil servant should or should not be promoted. The rationale behind is, firstly, that unless an allegation is proved it remains an accusation only, may give rise only to a suspicion about the conduct of a civil servant and a speculation that he might ultimately be punished. Secondly, if at all as a result of the departmental inquiry a civil servant is found to be guilty he may be suitably punished which may include his dismissal. It may be observed that although the administrative authorities are free from observing the fetters and technicalities of judicial trial because in such-like matters they are not acting judicially, nevertheless their decisions are required to be based on relevant considerations and material and not on suspicion and speculation alone. This appears to be the reason that vide Government of the Punjab S&GA Department letter No . SO . IV(S&GAD)-1-75/67 (Policy), dated 18-1- 1968 (O&M establishment Manual Volume-II (Revised) pages 122-123) it was directed as follows:-- "The question regarding promotion of an officer to a higher post during the pendency and investigation for alleged corruption was considered in the past and it was decided that there was no bar to an officer being considered for promotion to a higher post during the pendency of investigation subject to certain restrictions laid down in this Departmental Circular Letter No,SO XII (S&GAD) 5-16/62, the 7th September, 1962. This question has been further examined and it has been decided that the instructions contained in the above circular letter should also apply mutatis mutandis to all types of disciplinary cases. In the case of departmental proceedings a copy each of the charge-sheet and the statement of allegations should be put before the Selection Board, Public Service Commission or any other authority competent to make selection or promotion as the case may be.
2. If a Government servant who is not promoted on account of enquiry against him but is subsequently exonerated, it should be ensured that the holding of inquiry should not work against him. The question regarding possibility of his proforma promotion should be examined by his appointing authority, and he should be allowed his original seniority. It is necessary to set out in the promotion order of junior officer is temporary and the senior officer has been ignored on account of serious charges against him in a departmental inquiry."
These instructions, not being inconsistent with the provisions of the Civil Servant. Act 1974, have the force of rules by virtue of section 23 of the Punjab Civil Servants Act, 1974 and are, therefore, required to be followed.
8. The objection of the learned A.A.-G. Based on Article 212 of the Constitution and the judgments cited by him in support thereof have been duly considered. The petitioner is not before this Court to complain of breach of any terms and conditions of his service or any infringement thereof. The relief he seeks is a direction in the nature of a writ of mandamus for issuing a formal notification for his promotion. The Punjab Service Tribunal being Tribunal of limited jurisdiction cannot competently entertain and adjudicate upon all legitimate grievances of a civil servant, its jurisdiction extends to examine the orders passed by the departmental authorities in relation to the terms and conditions of the service Of the civil servants but does not have any such jurisdiction to issue a direction in the nature of mandamus to the departmental authorities compelling them to act in accordance with favourable orders already passed by the departmental authorities.
Therefore, unless the jurisdiction of the Punjab Service Tribunal extends to a matter, the bar of jurisdiction contemplated by Article 212 of the Constitution is not attracted. This was the view taken by me in the case of Tahir Latif Sheikh supra, which in turn, was based on the judgment of the Hon'ble Supreme Court in Fazal Elahi Ejaz and 22 others v. Government of the Punjab and 27 others (PLD 1981 SC 137) and judgment of the learned Karachi High Court in Mateen-ul-hassan Khan and others v. The Secretary, Fiance Department Government of Sindh, Karachi and others (1985 PLC (C.S.) 681. In the case of Tahir Latif sheikh supra it was also observed that ouster of jurisdiction of the superior courts is not to be lightly inferred and in case of doubt it has to be resolved in favour of jurisdiction rather than its ouster. Although. In this case I have no doubt in my mind that the matter was beyond the jurisdiction of the learned Punjab Service Tribunal.
9. The other aspect of the matter is that the promotion of the petitioner was withheld in contemplation of initiation of an inquiry in respect of certain allegations thereby doubting his fitness and ultimately, he was superseded in the meeting of the Provincial Selection Board held on 11-1-2003 which was based on a consideration which was wholly irrelevant as the order imposing major penalty of recovery and minor penalty of stoppage of increments had already been set aside by the learned Punjab Service Tribunal and their judgment was affirmed by the Hon'ble Supreme Court. The question of "fitness", as distinguished from "eligibility" for promotion, has specifically been excluded from the jurisdiction of the Punjab Service Tribunal by virtue of proviso
(b) to section 4 of the Punjab Service Tribunals Act, 1974, although the letter of law is explicit yet the effect of the aforesaid proviso came under consideration in a number of case before the superior Courts and it was held that against deferment or supersession no appeal lies before the Punjab Service Tribunal. Reference may be made to M.A. Rafique v. Managing Director (Power), WAPDA and 7 others (1990 SCMR 927), Zafar lqbal v. M.G.O.M.G.O. Branch, GHQ Rawalpindi and 3 others (1995 SCMR 881) and Government of Punjab through Secretary Health Department, Civil Secretariat, Lahore and another v. Dr. Aman-ul-Haq, M.S. District Headquarter, Gujranwala (2000 PSC 599).
10. The judgments cited by the learned A.A.-G. Do not cover the controversy raised in this petition.
The case of Sarfraz Ahmad Hiraja (supra) involved transfer of a civil servant. In the case of Abdul Wahab Khan (supra) a pending disciplinary inquiry was challenged. In the case of Pakistan Telecommunication Corporation supra the petitioners were the employees of the Pakistan Telecommunication Corporation. Their grievance was direct appointment to the post of Assistant Divisional Engineer on the ground that they were in the promotion zone and the posts reserved for promotion quota were required to be filled in first. An objection based on Article 212 of the Constitution was raised in the said case which was repelled on the ground that, by virtue of section 19 of the Pakistan Telecommunication Corporation Ordinance (XVI) of 1990, the petitioners had become employees of the Corporation and were not civil servants. On examination of the relevant provisions of law the Hon'ble Supreme Court found that the petitioners in the said case were civil servants and bar of jurisdiction contemplated by Article 212 of the Constitution was attracted. In the case of Director of Education supra recommendation of the Provincial Selection Board for promotion to BS-20 ws assailed on the ground of wrong seniority list. It did not involve any question of fitness for promotion.
11. As far as the contention of the learned counsel that promotion is not a right of a civil servant is concerned, it has no merit because in this case,. The petitioner had been recommended for promotion which was duly approved by the competent authority and a formal notification had to follow as the matter of course unless for a valid reason, the competent authority had recalled its approval to the recommendation of the Provincial Selection Board. A civil servant may not have a right to be promoted but by virtue of section 8 of the Punjab Civil Servants Act, he is entitled to be considered for promotion. This is not an illusory right and will be rendered as perfunctory ritual if the competent authority acts in the matter contrary to the rules, arbitrarily or by taking into consideration irrelevant considerations. I am quite mindful that while exercising Constitutional jurisdiction, this Court refrains from substituting the opinion of the departmental authority with its own opinion but when the departmental authority acts in the matter contrary to the rules, arbitrarily or in an unjust unfair and oppressive manner, or takes into consideration irrelevant considerations the corrective judicial process could always be applied by this Court while exercising Constitutional jurisdiction in such cases in which the jurisdiction of the Service Tribunal stands ousted. Reference may be made to M.R. Khalid v. Government of the Punjab (1994 PLC (C.S.)
138). In the said case pro forma promotion was declined to the petitioner on the basis of the adverse reports, most of which could not have been lawfully taken into consideration. This Court interfered. In the present case a formal notification of petitioner's promotion was withheld initially in anticipation of an inquiry and then he was superseded on the basis of the penalties of recovery and withholding of increments which had already been set aside. None of the aforesaid considerations was at all relevant thereby rendering the impugned decision as arbitrary.
12. What remains to the discredit of the petitioner is the minor penalty of ' censure'. This too ws imposed after the recommendation of the Provincial Selection Board made on 26-3-2001 and its approval by the competent authority on 7-4-2001. And, according to the letter dated 22-3-2003 it was not a reason to supersede the petitioner. I may however, observe that in Ch. Yar Muhammad Duriana v. Government of the Punjab and another (1992 PLC (C.S.) 95) decided on 25-11-1990) promotion was declined to a civil servant on the basis of a minor penalty of "censure". This Court interfered in the matter and the judgment of this Court was affirmed by the Hon'able Supreme Court in the case of Captain Sarfraz Ahmad Mufti supra (decided on 14-4-1991). It may be clarified that a minor penalty, standing by itself, cannot be considered as a disqualifying factor and this so emerges from the instructions of the S&GAD Department contained in the Letter No,SOIV(S&GAD) 1- 75/67(Pol icy), dated 7-1-1969 (O&M Establishment Manual Volume-II (Revised) 1974 Edition (pages 123-124) in the following words:-- "(c) If the Appointing Authority has passed an order under rule 6 (ii) of the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, that formal enquiry should be held and has decided that the allegations, established would call fora major penalty.
' If the Authority is of the view that the allegations, if established, would call for a minor penalty, then such an enquiry may be ignored for the purpose of withholding of promotion of a person, who is otherwise suitable for it." (emphasis supplied)
I may add that, in fact, withholding of promotion of a civil servant only on the basis of a solitary penalty of censure attracts the rule of double jeopardy because a civil servant who commits an actionable wrong cannot again be punished for the same wrong for which he had already been punished. It may be clarified that if a penalty of ' censure' is coupled with other relevant considerations and the competent authority, while forming opinion as to the suitability of a civil servant, also takes into consideration a minor penalty the decision may not be bad.
13. For what has been stated above, I am of the considered view that in the matter of promotion the petitioner was not dealt with in accordance with the rules and in a just and fair manner. Therefore, inaction of the respondents not to issue a formal notification and thereafter the supersession of the petitioner are declared as without lawful authority.
14. The question that attracted my attention was as to the relief to be granted to the petitioner in the circumstances of the case because since the filing of the writ petition, and its disposal today, the decision dated 11-1-2003, superseding the petitioner intervenes. The Departmental Representative informed me that the case of the petitioner for promotion to BS-19 was placed before the Provincial Selection Board in the meeting held on 9-7-2003 but the minutes thereof are still awaited. It is, accordingly, directed that unless the Selection Board recommends the petitioner for promotion to BS-19 his case for promotion to the post of Superintending Engineer (BS-19) shall be placed before the Provincial Selection Board in the next meeting for his consideration for promotion from the due date and in the light of the observations made in this judgment. No order as to costs.