MUHAMMAD AKHTAR SHABBIR, J.--- The petitioner joined the Police Department as A.S.I. On 27.3.1972 and confirmed as Inspector w.e.f. 21.9.1981, in the Punjab Police and reached to the rank of DSP. The petitioner on the basis of gallant exhibited by him for the arrest of criminals from "Niaz Baig Thokar"
(Lahore), on 24.10.1996, earned out of turn promotion SP (BS-18), w.e.f. 24.10.1996 under Section 10(8) of the Punjab Civil Servants Act. 1974 vide Notification No. S.O.(S-II)2-2197-11, dated 13.3.2004. The petitioner through the instant writ petition seeks a direction to declare the conditions imposed by the Govt. Of Punjab while granting out of turn promotion, which as under:-- "His substantive promotion would be allowed in due course after his senior gets promotion."
2. The claim of the petitioner is that he is entitled for the promotion from the date when he rendered gallant service on 21.10.1996.
3. The learned counsel for the petitioner contended that the petitioner was promoted under the direction of the High Court on out of turn basis to the rank of S.P and the order of the High Court was examined by the Honourable Supreme Court. He further contended that the petitioner has been treated _ discreminatory by the respondents and they mala fidedly imposed the conditions and postponed his substantive promotion till his seniors are promoted.
4. On the other hand, the learned 'Law Officer, vehemently opposed the arguments of the learned counsel for the petitioner, contending that according to the rules, the petitioner shall be promoted on the basis of principle of "seniority-cum-fitness" and, therefore, the condition was rightly imposed by the department in the promotion order of the petitioner. In this context reliance has been placed on Government of Punjab through Secretary (Services) SGA&ID, Lahore and others Vs. Rao Shamsher All Khan, Additional Commissioner, Multan and others (1992 SCMR 1388).
5. I have heard the learned counsel for the parties and perused the record. Section 7 of the Punjab Civil Servants Act, 1974, deals with the seniority of the civil servants which is reproduced below for ready reference:- "Section 7. Seniority. -- (1) Seniority on initial appointment to a service, cadre, or post shall be determined in the prescribed manner.
(2) Seniority in a post, service, or cadre to which a civil servant is promoted shall take effect from the date of regular appointment to that post."
6. Rule 8 of the Punjab Civil Servants Act (Appointment and Conditions of Service) Rules, 1974, is read in conjunction with the above-referred provision which is reproduced hereunder:-- ""8. Promotion. -- (1) A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a higher post for the time being reserved under the rules for departmental promotion in the services or cadre to which he belongs.
(2) A post referred to in sub-section (1) may either be a selection post or a non-selection post to which promotion shall be made as may be prescribed--
(a) in the case of all selection post, on the basis of selection on merit; and
(b) in the case of a non-selection post, on the basis of seniority-cum-fitness.
The petitioner did not claim his promotion on the basis of seniority-cum-fitness. The petitioner was promoted as S.P. In exercise of the powers conferred by Section 8(a) of the Punjab Civil Servants Act, 1974, which reads as under:-- '8-A. Out of turn promotion, etc. -- Notwithstanding anything contained in this Act or any other law for the time being in force or in any contract, or rights claimed or acquired under any judgment of any Court or Tribunal, a civil servant who provently exhibits exemplary intellectual, moral and financial integrity and high standard of honesty and gives extraordinary performance in the discharge of his duties, may be granted out of turn promotion or award or reward in such manner as may be prescribed."
Pl.Nd the powers of promotion have been provided to the Authority under Rule 14-A, of the Punjab Civil Servants (Appointment and Conditions of Services) Rules, 1974 which envisaged as under:- "Section 14-A. Out of turn promotion. -- Notwithstanding anything contained in these rules, a Civil Servant eligible for promotion against a post reserved for promotion in the respective functional unit may be promoted, out of turn,'in consideration of criteria laid down in Section 8A of the .Punjab Civil Servants Act, 1974, on the recommendations of the following Boards, with the approval of the Chief Minister:-
(1) Posts in BPS 17 & above Provincial Selection Board
(2) Posts in BPS 1 to 16 Special Selection Board Comprising Additional Chief Secretary; Finance Secretary Law; Secretary (Services) S&GAD; Law Secretary (O&M), Dy. Secretary (Reg.) SGA&I Department"
7. The provisions of Section 8-A, of the Act and 14-A of the Rules has empowered the Authority to promote a Civil Servant on out of turn basis notwithstanding anything contained in the Act and in the Rules which would mean that the criteria laid down or settled for promotion of the Civil Servant as provided in Section 7 of the Act, the criteria determining the seniority provided in Section 7 of the Act and Rule 8 of the aid Rules is neither attracted nor in conflict with Section 8-A and Rule 14-A. It is very simple proposition that the law provided special treatment, award in shape of promotion and financial aid to person who performed or exhibits the exemplary services and gives extraordinary performance in discharge of his duties. The services rendered by the petitioner have been admitted by the department that is why he was promoted on out of turn basis in exercise of the powers conferred by Section 8-A, of the Punjab Civil Servants Act and if he has promoted in view of his gallant services, his promotion is due from the date he performed his duties as recognized by Rule 8-A. The petitioner claims his promotion w.e.f. 24.10.1996, the imposition of condition to this effect that his substantive promotion would be allowed in due course after his senior got promotion, is not a fair act on the part of the department, if his senior is not promoted within 10 years, should the petitioner who puthis life to risk and gave the target to the department as promised by the Head of the Force:should wait till that time, this condition imposed on the oromotion is clear in derogation/violation of the above Section 8-A and Rules 14-A of the Act and rules respectively. It is the intention of the law-maker which is very much clear as stated in the preceding paragraph, according to provision of Section 8-A of Act, 1974, that for grant of "out of turn promotion". It is laid down by the superior Courts that the provision of every part, section of the statute be construed in its true perspective, the service rendered by the petitioner have not been denied by the department/respondents and his case for promotion was recommended by his superiors then there can be no other interpretation of Sections 8-A and 14-A, that the claimant is entitled for out of turn promotion immediately from that date. Further the Courts have also issued direction in favour of the petitioner for such promotion and the order of the High Court was upheld by the Honourable Supreme Court, therefore, no Authority is competent to deviate from the above law and no option is left with the Authority but to promote the petitioner from the date of his such like performance in discharge of his duties.
8. The petitioner claims his out of turn promotion on the basis of gallant services, this Court had directed the Department to grant the out of turn promotion to one Police Officer, Akhtar Umar Hayat Lalayka, Inspector Sergeant to the rank of DSP and the Govt. Of the Punjab implemented the orders of the High Court and the Honourable Supreme Court. The said officer was granted such promotion w.e.f. 8.5.1993 the date when he performed his splendid duty, which is the requirement of Section 8-A of the Act. There is no such like restriction and condition in the order of the Police Officer and the impediment has been imposed only upon the petitioner. This act of imposing such condition is not only the clear violation of the Rules and provisions of Section 8-A of the Act and 14- A respectively of the relevant Rules but also is clear violation of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973. The Constitution has granted/provided the fundamental rights to the citizens of the country, the protection provided by the Constitution cannot be violated. Article 25 of the Constitution emerges as under:- "Articles 25. Equality of citizens. -- (1) All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex alone.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children."
If such action being discriminatory in character is liable to be struck down as the law laid down in (NLR 2004 Civil Lah. 294). Definitely the case of the petitioner is at par with that of Akhtar Umar Hayat Lalayka, therefore, the rule of propriety and consistency is also attracted to the present case.
9. The learned Law Officer has opposed the arguments that the order impugned has,been validly passed by the respondents, basing on the case of Govt. Of Punjab through Secretary (Services)
SGA&ID, Lahore and others Vs. Rao Shamsher Ali Khan, Additional Commissioner, Multan and others (1992. SCMR 1388)., wherein the Apex Court has observed that "seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to a post in that grade".
It is suffice to answer that firstly this case never covered by the provisions of Section 8-A of the Punjab Civil Servants Act, 1974 nor Rule 14-A of the said Act. In that case the dispute before the Court was "seniority-cum-fitness", as is evident from the observation made by the Honourable Court and thus is not attracted to the present case. The other question raised by the respondent was that this writ petition is not maintainable before the Court in view of the bar contained in Article 212 of the Constitution. This writ petition relates to the promotion of the petitioner and question that boils down for determination by this Court is the interpretation of the relevant section and the rules. The High Court is very much Competent to interpret such provisions of law in exercise of Constitutional jurisdiction. This question is not covered within the exclusive jurisdiction of the Service Tribunals. The petitioner had the right to be considered for promotion on eligibility and it is his vested right and if he is not considered, this can be considered by the High Court and the bar contained in Article 212 of the Constitution is not trial but this limit to such sphere much within which the relevant laws namely the Service Tribunals Act and the Civil Servants Act occupy field. In this context reference may be made to S. Baqir Zaheer Rizvi Vs. Secretary, Housing & Works Division, Government of Pakistan, Islamabad, etc. (2001 U.C. 224). The petitioner is aggrieved of the condition imposed on is his promotion order for which no right of appeal has been provided before the Service Tribunal and in such like cases the writ petition is maintainable before the High Court as the law laid down in case of Dr. Amanat Haq Vs. Government of Punjab (2000 PLC (CS) 123).
10. The other aspect of the case is that condition with regard to his substantive promotion imposed by the department is a mala fide. In this context reliance is placed on Federation of Pakistan through Secretary Establishment Vs. Sh. Abdul Aziz (PLJ 1998 SC 850) wherein it has been observed that there is plethora of case-law to show that where action taken against person is "coram non judice", mala fide 'or without jurisdiction, High Court shall always be competent to interfere to do complete justice between parties. This Court has ample powers to give direction to the public functionaries to act in accordance with law in spite of the bar contained in Article 212 of the Constitution read with Section 4 of the Service Tribunals Act and the action based on malice are required to be struck down. Reference can be made to Ahmed Ali Vs. D.E.O.(EE-M), Okara (PLJ 2002 Lah. 2011).
11. For the foregoing reasons this petition is allowed as a result of which the condition imposed on the promotion order of the. Petitioner issued vide notification dated 19.7.1997, that his substantive promotion would be allowed in due course, after his seniors get promotion, is declared without lawful authority and of no legal effect. The substantive promotion of the petitioner on out of turn basis shall be treated w.e.f. 24.10.1996. The respondents are directed to comply with this judgment/order of the Court. .