' SYED HAMID ALI SHAH, J.--- The petitioner has not been considered by respondent No,1, for promotion from D.S.P. To Superintendent of Police (Traffic Sergeant Branch), in its meeting, dated 14-11-2007, wherein respondents Nos.3 to 8 were considered for promotion as Superintendent of Police (BS-19) (Traffic Sergeant Branch), ignoring the seniority of the petitioner. The petitioner has voiced his grievance, through filing instant petition, against the decision taken in the meeting of the Departmental Promotion Board, dated 14-11-2007.
2. Mr. Muhammad Farooq Bedaar, learned counsel for the petitioner has contended that the petitioner was promoted as Deputy Superintendent of Police by Departmental Promotion Committee, on 10-12-1995 and a notification to that effect was issued on 28-1-1996. Subsequently, the notification was withdrawn on 3-4-1997, which the petitioner assailed in Writ Petition No,11194 of 1997. Learned Division Bench of this Court, vide judgment, dated 11-9-2002, declared impugned notification illegal and as a result thereof, the petitioner was promoted from the date of original notification viz. 28-1-1996. Another notification, dated 18-12-2002 was issued, whereby the petitioner was not accorded promotion from due date i,e, 18-1-1996; the petitioner feeling aggrieved, filed an appeal (Appeal No,1177 of 2004) before learned Punjab Service Tribunal. It was admitted that learned Tribunal vide judgment, dated 15-3-2005 observed that the petitioner shall be considered to have been promoted with effect from 28-1-1996. Department did not assail the judgment of learned Tribunal in appeal', which amounts to acceptance of decision by respondents Nos.1 and 2.
Learned counsel added that provisional seniority list was published on 16-1-2006, wherein the petitioner was shown at serial No,20, much junior to those officers promoted after 28-1-1996.
Subsequently, the petitioner was shown at serial No,17, in the seniority list, published on 13-3-2006.
Petitioner groused his grievance in this respect, through filing appeal (Appeal No,1928 of 2006) before learned Punjab Service Tribunal. Learned Tribunal, through judgment, dated 21-8-2007, accepted the appeal and directed the respondent-Department to modify seniority list, according to the petitioner's seniority with effect from 28-1-1996. It is contended that the petitioner is at Serial No,4 in the seniority list in view of the judgment of learned Punjab Service Tribunal. Contended further that the petitioner has been ignored illegally for promotion, solely for the reason that respondent No,7 was highly' influential and to accommodate him, the process of promotion was carried in illegal and mala fide manner. While rebutting the stance of respondents regarding pendency of disciplinary action, it was submitted by learned counsel that mere pendency of a disciplinary action is no ground for ignpring the petitioner for promotion. Learned counsel in support of his contention has placed reliance on the cases of Muhammad Ayaz Khan v.
Government of Sindh and others 2007 PLC (C.S.) 716 and Maj. Zia-ul-Hassan, Home Secretary and others v. Mrs. Naseem Chaudhry 2000 SCMR 645. Learned counsel summed up his arguments with the contention that the question of seniority of the petitioner has since been resolved through judgments of learned Punjab Service Tribunal and also of this Court, therefore, the respondents have acted illegally unlawfully, in ignoring the petitioner for promotion.
3. Mr. Nafeer Ahmad Malik, Advocate for respondent No,7 has submitted that the petition under reference, is not maintainable due to bar contained in Artiele 212 of the Constitution of Islamic Republic of Pakistan. He has further, submitted that the petitioner has not approached this Court with clean hands; he has misstated the facts that no appeal against the judgment of the learned Punjab Service Tribunal has been filed. Learned counsel added that respondent No,7 has assailed the judgment of Punjab Service Tribunal, dated 21-8-2007 (passed in Appeal No,1928 of 2006) in Supreme Court in a petition for leave to appeal (C.P.L.A. No,1505 of 2006). Learned counsel went on to argue that the petitioner has falsely stated that he has unblemished record. Learned counsel has placed on record, Office Order No,4270/DISC-I, dated 10-5-2007, whereby Inquiry Officer was appointed to hold inquiry, against the petitioner on the charges of inefficiency and misconduct.
After inquiry, a show-caused notice under section 13(4) of Punjab Employees, Efficiency, Discipline and Accountability Act, 2006, has been issued to the petitioner. The Inquiry Officer found petitioner guilty of the charges of inefficiency. Learned counsel has also drawn attention to notification, dated 2-2-2007, whereby respondent No,7 was promoted, on out of turn basis, as Deputy Superintendent of Police with effect from 24-6-1998. The promotion accorded to respondent No,7, was in pursuance of the orders, dated 27-12-2004, passed by learned Punjab Service Tribunal, whereby the Home Department of Government of Punjab has fixed the seniority of respondent No,7 at Serial No,13-A below the name of Jaffar Abbas. Learned counsel in support of this contention, has placed on record, notification, dated 6-3-2007. He added that the appellate authority had accepted the representation of respondent No,7, while fixing his seniority. Thus, the question of seniority on acceptance of the appeal, has attained finality and the petitioner has no right whatsoever.
4. Mr. Farooq Amjad Meer, learned counsel for applicants in C.M. No,2416 of 2007 has submitted that the newly-added respondents Nos.9 to 11 are senior to the petitioner and the grievance of the petitioner is not against these respondents. The injunctive order has been passed and impugned notification has been stayed, while the petitioner has no grievance or grouse against his clients and injunctive order requires modification to that effect.
5. Rana Muhammad Zaiiid, learned counsel for respondent No,6 has submitted that the instant petition is not maintainable. Departmental Promotion Board has already considered the question of promotion and as such, non-consideration for promotion on the question of seniority, is not assailable at this stage. Learned counsel has further submitted that the petitioner was not senior and his seniority was at Serial No,10 in the last two lists and only nine persons were considered for promotion. The petitioner has no valid cause. He has submitted that even if, the petitioner is promoted, it would not effect the promotion of his client.
6. Mr. Saleem Sikandar, Assistant Inspector-General of Police (Legal) Punjab, has submitted that according to the seniority list, the Police Officers were considered for promotion. The petitioner was placed in'the seniority list at Serial No,17. The seniority of the petitioner was not fixed according to the judgment passed by learned Punjab Service Tribunal, as it has not attained finality and the matter is sub judice before the Honourable Supreme Court of Pakistan. He has further submitted that the disciplinary action against the petitioner is also pending and for these reasons, the petitioner was not considered for promotion by the Board in its meeting held on 14-11-2007.
' Learned Additional Advocate-General has supported the impugned action of the respondents and has submitted that the department will proceed in the matter of promotion of the petitioner, according to the decision of the Honourable Supreme Court of Pakistan and will not delay the matter, when the case is once decided.
7. Heard the learned counsel for the parties and record perused.
8. The petitioner was considered for promotion on 10-12-1995 and he was promoted as Deputy Superintendent of Police vide notification, dated 28-1-1996. The promotion of the petitioner was made subject to creation of supplementary post which was not created by the Finance Department and as such, notification; dated 28-1-1996 was withdrawn, through a subsequent notification, dated 3-4-1997. The petitioner challenged the notification, dated 3-4-1997 through Writ Petition No,11194 of 1997 and the impugned notification was declared illegal by a learned Division Bench of this Court vide order, dated 11-9-2002, which resulted into promotion of the petitioner.
9. The question of seniority of the petitioner was resolved in Appeal No,1928 of 2006, by learned Punjab Service Tribunal. Seniority list dated 4-3-2006, has been held by the learned Tribunal, liable to be modified. Petition has since been promoted as D.S.P. With effect from 28-1-1996, according to the ratio of judgments of learned Tribunal, dated 15-3-2005 and 21-8-2007, passed respectively in Service Appeals Nos.1177 of 2004 and 1928 of 2006. The matter of the seniority of petitioner stands settled.
' Respondent No,7 was promoted with effect from 24-6-1998, without prejudice to the rights of his senior. The petitionder was granted notional promotion as D.S.P. With effect from 28-1-1996, according to the ratio of judgment, passed in Service Appeal No,1177 of 2004. Learned Tribunal in Service Appeal No,1928 of 2006, has rightly A observed that a civil servant, who has been allowed notional promotion, shall not be deprived of his seniority and only loss which he may suffer in such promotion, is in monetary terms, that is to say that he cannot claim arrears of pay for relevant period. Here at this juncture, case of Union of India and others v. K.B. Rajona (2000) 25 SCR 613 needs specific mention, wherein Mr. Justice Ruma Pal, speaking for a learned Division Bench of Indian Supreme Court, has observed that notional promotion is given to right the wrong that has been done to a civil servant. If such civil servant is denied to be considered for promotion on the basis of such notional promotion, it would result in perpetuating wrong done to such civil servant.
Viewing the case of the petitioner in this background, I, conclude that petitioner's seniority has to be considered for the purpose of promotion from the date on which notional promotion was accorded to him.
10. Petitioner has successfully contested his seniority against respondents Nos.3 to 8, in service appeal. Despite a direction of learned Punjab Service Tribunal for the modification of seniority list, respondents Nos.1 and 2 have not proceeded in the matter of modification of seniority list and promotion respondents Nos.3 to 11, ignoring the petitioner. Respondent No,2 has not given effect to the judgment of learned Tribunal, which act of omission, on the part of respondents Nos.1 and 2, renders the impugned promotion of respondent Nos.3 to 8, as illegal and mala fide. Respondent No,7 was accorded out of turn promotion with the condition that his promotion does not take away the seniority of his seniors. Petitioner being senior to respondent No,7, has been ignored.
Respondent No,2 has not challenged the decisions of ,learned Tribunal in appeals before Honourable Supreme Court. This act alone casts upon respondent No,2, more responsibility to honour and obey the judgment of learned Tribunal.
11. The petitioner has been ignored erroneously from being considered for promotion as Superintendent of Police on the plea that the judgment of learned Punjab Service Tribunal, dated 21-8-2007 passed in Appeal No,1928 of 2006, is under challenge before the august Supreme Court through a petition for leave to appeal (C.P.L.A. No,1505-L of 2007) and secondly due to pendency of a disciplinary action. It is settled law that mere pendency of disciplinary proceedings against a civil servant, is no valid ground for not considering such civil servant for promotion. Law is settled and the judgments in the case of Maj. Zia-ulHassan, Home Secretary and others v. Mrs. Naseem Chaudhry 2000 SCMR 645 and Muhammad Ayaz Khan v. Government of Sindh and others 2007 PLC (C.S.) 716, can be referred in this respect. The apex Court has enunciated that it is right of the person to whom the eligibility resides, to be considered for promotion and constitutional jurisdiction can competently be invoked, when juniors to such civil servant are promoted, ignoring his seniority. While holding so, I am fortified by the dictum laid down in the case of Maj. Zia-ul- Hassan, Home Secretary and others V. Mrs. Naseem Chaudhry 2000 SCMR 645 and Muhammad Ayaz Khan v. Government of Sindh and others 2007 PLC (C.S.) 716.
12. Now I will advert to the effect of pendency of petitionlc (C.P.L.A. No,1505-L of 2007). The petitioner cannot be deprived of his seniority and also for being considered for promotion merely because of pendency of a petition for leave to appeal. Order XX of Supreme Court Rules, 1980 requires mention, whereby the execution of an order appealed against, cannot be prevented through filing of a petition for leave to appeal or an appeal. The order of a Court or a forum appealed against in the Honourable Supreme Court, can only be stayed when an injunctive order is passed. Honourable Supreme Court took serious notice when Executing Court (Civil Judge 1st Class, Sheikhupura) adjourned the matter i,e, execution proceedings titled "Bashiran Bibi v. Muhammad Ramzan" on a number o1 dates of hearing and directed the judgment-debtor to furnish copy of stay order. The apex Court, observed that implementation of an order or execution of a decree cannot be stayed, merely on assailing of judgment or order, through petition for leave to appeal or through appeal.
13. Home Department and respondent No,2 have not taken into consideration Order XX of Supreme Court Rules, 1980. The proceedings before respondent No,1 qua the promotion of respondents Nos.3 to 8, ignoring the petitioner, are nullity in the eye of law, hence the same are not sustainable. The impugned proceedings of promotion, ignoring petitioner and considering juniors to him, are without lawful authority and of no legal effect.
14. For the foregoing, this writ petition is allowed. Respondent N6.1 is directed to hold a fresh meeting for promotion and consider the case of the petitioner for promotion, according to modified seniority list, as per judgment of learned Punjab Service Tribunal, dated 21-8-2007 (supra). This order shall, however, not affect the promotion of respondents Nos.9 to 11, who are senior to the petitioner.