' SYED ZAWWAR HUSSAIN JAFFERY, J.---Leave is sought against the order of the learned Lahore High Court, Rawalpindi Bench, dated 14-9-2007 passed in Writ Petition No,2146 of 2006 whereby the departmental authority was directed to promote the respondent immediately in the next grade w,e,f, 31-12-2001 with all back-benefits.
2. The relevant facts as incorporated in the writ petition are that respondent was serving as Superintending Engineer (BPS-19), Pak P.W.D., Islamabad for the last 15 years on regular basis and performing his duties diligently to the best of his abilities and to the entire satisfaction of his superiors having 30 years un-blemished record at his credit. He retired at the age of superannuation on 7-9-2007 and the name of respondent was at Serial No,3 of the seniority list, and his case of promotion from Superintending Engineer (BPS-19) to Chief Engineer (BPS-20) was deferred by the Central Selection Board (hereinafter referred to as CSB) without any tangible material, unauthenticated and evasive grounds, floated a departmental inquiry while his juniors at Serial Nos.6 and 7 of the seniority list with less score were promoted. It is pertinent to mention here that no departmental inquiry was pending against the petitioner on or before the said meeting. The respondent feeling aggrieved thereby assailed the order before the Federal Service Tribunal (hereinafter referred to as FST), Islamabad in Appeal No,22(Q) CS 2002. After notice to the departmental authorities, the factual position was conceded as prayer made in the appeal and the case was remanded back by the Federal Service Tribunal to the department with the direction as under:-- "By mutual consent of the parties concerned the case is remanded to the department to consider the appellant for promotion to the post of Chief Engineer (B-20) in accordance with law in the next meeting of CSB-II. In case the appellant is cleared for promotion, the same shall take effect from the date his Juniors were promoted to the post of Chief Engineer (B-20)".
' The certified copy of the judgment passed by the FST was communicated to the office for taking necessary action. The respondent approached the officers of the department by submitting representation dated 20-6-2003 but his case was not placed before the competent authority in two next meetings of the CSB. In spite of explicit direction of FST, a third meeting of CSB was held on 1-11-2004 and the respondent's case was treated amongst five persons with the remarks "lack of tactics and emotional stability". It is further disclosed by the respondent in his petition that four officers much junior to the respondent having less quantification marks were promoted without any justification whereas respondent's case was within the best of the best having excellent report, attained maximum marks in quantification and being senior to all of them who got promotion as Chief Engineer (BPS-20). The respondent being dissatisfied with the view taken by the department again preferred Miscellaneous Petition No,1059 of 2005 before FST for implementation of its judgment dated 16-5-2003. His application was allowed vide ordef dated 26-4-2006. It will be advantageous to reproduce the observations of the FST as under:-- "Para.
8. It was implied in Tribunals' judgment dated 16-5-2003 that the petitioner's promotion case would be placed before the CSB-II without any deficiency in his service record. His ACR for 2002 containing adverse remarks was placed before the CSB without its prior mandatory processing which required that in the 1st place it should have been communicated to the petitioner to afford him an opportunity to make a representation, if he so chose. It was an invaluable right of the petitioner which was denied to him without any cogent reason. We are, therefore, of the opinion that the case was submitted before the CSB-II in Mechanical Way which was against the letter and spirit of Tribunal's judgment.
"Para.
9. In the interest of justice we direct that the supersession of the petitioner be converted into deferment and his promotion case be again placed before the CSB. We also direct that the ACR containing adverse remarks be communicated to the petitioner to enable him to represent against the adverse remarks, if he so chooses, and the matter be decided within two months of the date of this order. In case a meeting of the CSB is held within the next two months, the relevant record of service of the petitioner may be placed before the CSB excluding the A.C.R. For 2002 containing the adverse remarks."
3. Respondent No,1 ultimately filed Constitutional Petition No,2146 of 2006 under Article 199 of the Constitution of the Islamic Republic of Pakistan with the following prayer:- "Under the circumstances it is, therefore, very humbly prayed that this Court my kindly be pleased to direct the respondent to implement the judgment dated 16-5-2003 as well as the order dated 26-4-2006 passed by the learned FST and promote the petitioner to the next higher grade w,e,f, from the date of promotion of his juniors and his deferment dated 31-12-2001 on the basis of his service record as would have been available up to the said date with all back-benefits."
4. After service of the notice of the said petition and after hearing the respondent in person, learned Deputy Attorney General of Pakistan conceded that the competent authority had expunged the adverse remarks recorded in the A.C.Rs, of respondent for the years, 2001-2002. The CSB was informed that those remarks were not endorsed by the countersigning officer and there was no inquiry or disciplinary proceedings pending against the respondent and reliance was made on a letter dated 10th April, 2003. The competent authority had exonerated the respondent (Amir Zaman Shinwari) from the charges levelled against him vide charge-sheet No,F.4(29)12001-Admn.III dated 10-1-2002. The departmental authority have failed to point out any departmental inquiry or disciplinary proceedings pending against the respondent whereas it is also disclosed in the petition that the order dated 26-4-2006 passed by the FST was not challenged which holds the field.
5. Ms. Naheeda Mehboob, Ellahi, learned Deputy Attorney General along with Mr. Tahir Mahmood, S.O. Has contended that facts are not disputed as the same were conceded before the lower forums as well as before the learned High Court but there is direction that the respondent be promoted in the next grade i,e, w,e,f, 31-12-2001 as the promotion case of the respondent was deferred by the CSB on the ground that department contemplated disciplinary proceedings against him. It is further contended that the High Court has no authority to issue directions to promote the respondent in the grade w,e,f, 31-12-2001 as such power is vested to the CSB.
Therefore, this portion of the order in the last two lines of the judgment may be set aside. On this point, reliance was placed in the case of Government of Pakistan through Establishment Division Islamabad and 7 others v. Hameed Akhtar Niazi, Academy of Administrative Training Walton, Lahore and others 2003 PLC (C.S.) 212.
6. Conversely, the respondent (Amir Zaman Shinwari) present in person submits that Miscellaneous Petition No,1059 of 2005 was preferred before the FST, Islamabad against the Federation of Pakistan and after hearing the charge by mutual consent, the case was remanded to the department to consider his case for promotion for the post of Chief Engineer (BS-20) in accordance with law in the next meeting of the CSB-II. In case the respondent is for promotion the same may take effect from the date his juniors were promoted to the post of Chief Engineer (BPS-20) and miscellaneous petition was disposed of as per observation mentioned in the order dated 26-4-2006. It is further urged by the respondent that his case was not considered and the attitude of the departmental authority was negative to decide his case. Therefore, he was deferred for promotion by the CSB-II held on 3-12-2001 only on the ground that department contemplated disciplinary proceedings against him. In fact, he was exonerated from the disciplinary proceedings as there was no tangible material available on record. Therefore, the representative of the Secretary, Cabinet Division, stated that the case of respondent would be placed before the next meeting for consideration for promotion to the next higher grade. Appeal No,22(Q) C.S. 2002 was disposed of vide judgment dated 16-5-2003 passed by the FST, Islamabad. He has invited our attention that the learned Deputy Attorney General may be asked to show that there was any departmental inquiry pending against him. His case was not put before the CSB in three consecutive meetings i,e, 18-9-2003, 19- 6-2004 and 1-11-2004. Therefore, the department had committed grave violation of the directions of the FST and failed to implement the judgment in its letter and spirit. The respondent has not received any remarks recorded in the A.C.Rs, throughout his service career and deliberately' withheld his promotion without any justification as his case was more bright than the case of his juniors who were promoted having less quantification and have obtained 72,75,72 and 71 scores while his quantification score was 80. It is further urged that he also. Attended National Institute of Public Administration (NIPA) course in grade 'A' and he was eligible to be promoted with other juniors who have been promoted earlier. He has annexed copy of the notification attaining the age superannuating w,e,f, 7-9-2007 and he stands retired from government service from the same date.
7. We have examined the orders of the FST and the documents placed on record as well as impugned judgment dated 14-9-2007 passed by the Lahore High Court, Rawalpindi Bench in Writ Petition No,2146 of 2006. After scanning the whole material available on record, we are of the view that the departmental authority failed to implement the order of FST. The factual position was conceded by the departmental in the FST as well as before the learned High Court but the orders were not implemented although the respondent had not contested the case regarding the pleas taken by the petitioner and the order of FST dated 26-4-2006 is holding field in the light of the observations made by the FST, the writ petition filed by the respondent was accepted with a direction to the petitioner department to implement the judgment dated 16-5-2003 as well as the order dated 26-4-2006 of the FST with immediate effect. The attitude of the department authority was hostile and injustice was made to the respondent without any substance. Therefore, the Lahore High Court, Rawalpindi Bench examining the attitude of the departmental authority issued direction that the respondent be promoted in the next grade with immediate effect from 31-12-2001 with all back-benefits. The respondent is running since, 2005 and obtaining orders from FST and directions from the Lahore High Court, Rawalpindi Bench and his running is to achieve valuable rights from the department.
8. In view of the foregoing reasons, we are of the view that there is no substance to set aside the judgments passed by the FST and impugned judgment passed by the Lahore High Court. As departmental authorities have unnecessarily dragged the case of the respondent and withheld his benefits. As the respondent has already retired on 7-9-2007, his emoluments shall be released within one month.
9. Accordingly, there is no merit in this petition and the same is dismissed. .