' CH. IJAZ AHMED, J.--- The petitioner has sought leave to appeal against the judgment of the Punjab Service Tribunal dated 17-2-2005 wherein the appeal of the petitioner was partly allowed.
2. The necessary facts out of which the present petition arises are that petitioner was appointed as Assistant Engineer in BS-17 in the C&W Department, Government of the Punjab on 29-5-1967. He was promoted to the rank of Executive Engineer on 26-2-1975 and as Superintending Engineer on current charge basis on 15-8-1993. He was subsequently, promoted as Superintending Engineer on regular basis on 5-9-2003. Respondents Nos. 3 to 31 were promoted as Superintending Engineer on regular basis between the year 2000 to 2002 whereas the petitioner was deferred. Subsequently he was superseded on the ground that major penalty of reduction in time scale by one stage was imposed upon him vide order, dated 22-9-2001 by the Authority without adverting to the ground realities that petitioner being aggrieved has filed appeal before the Service Tribunal against the imposition of major penalty and the same was pending adjudication. The petitioner was promoted as Superintending Engineer on 26-1-2002. Petitioner filed representation on 1-1-2003 before the Secretary C&W Department for restoration of seniority after being superseded. Same was rejected by the competent authority vide order, dated 6-8-2004. Petitioner being aggrieved flied Appeal No,1924 of 2004 before the Punjab Service Tribunal, Lahore which was partly allowed vide impugned judgment in the following terms:- "The promotion of the appellant on 5-9-2003 as Superintending Engineer on regular basis shall date back now to 5-4-2002 when the Appeal of the appellant No,2485 of 2001 was accepted by the Punjab Service Tribunal, and the major penalty was reduced to minor penalty of stoppage of one increment."
3. Hence the present petition with the prayer that petitioner may be promoted w,e,f, 17-8-1993 as Superintending Engineer instead of 5-4-2002 as determined/fixed by the Service Tribunal in the impugned judgment.
4. The learned counsel for the petitioner submits that respondents had erred in law to supersede the petitioner without application of mind by the Departmental Promotion Committee as the petitioner had filed appeal before the Service Tribunal against the major penalty awarded by the Competent Authority under Efficiency and Discipline Rules. The same was pending adjudication, therefore, propriety demanded that the Departmental Promotion Committee should have deferred the case of the petitioner to wait the result of his appeal instead of promoting his juniors. This fact was very much in the knowledge of all the concerned authorities. The petitioner was penalized by the inaction of the public functionaries. The learned Service Tribunal had rectified the grievance of the petitioner to the extent that petitioner was awarded pro forma promotion on regular basis date back to 4th April, 2002 when the appeal of the petitioner was accepted by the Punjab Service Tribunal and the major penalty was reduced to minor penalty of stoppage of one increment but the learned Service Tribunal had erred in law not to award pro forma promotion to the petitioner from the date when his juniors were promoted i,e, 17-8-1993.
5. The learned counsel for the respondents strongly resisted the petition.
6. We have considered the arguments of learned counsel for the parties and perused the record. It is an admitted fact that major penalty was awarded to the petitioner by the Competent Authority vide order, dated 22-9-2001. There was no other evidence to disqualify the petitioner from promotion on the said date. This fact alone shows that respondents superseded the petitioner without application of mind which is duty and obligation of the public functionary to pass order after application of mind otherwise it is not in consonance with principle of natural justice as the impugned action of the respondent lacking the reasons as law laid down by this Court in various pronouncements. See Messrs Airport Support Services' case 1998 SCM R 2268, Muhammad Tariq Pirzada and others' case 1999 SCM R 2744 and Aslam Warraich's case 1991 SCM R 2330. The relevant observation is as follows:--- "Such rule of procedure will have good effect for the development of a statutory practice in the departmental proceedings---original, review, representational or appellate, for recording reasons in support of their orders"----"But in many other cases we have seen that the rejection is a simple ritualistic rejection. Even if it is not a mandate by any law that the officer concerned should be informed about the reasons which prevailed with the authority concerned, it would not be illegal either to give reasons; at least, from now onward. It being the judgment of this Court on this legal question the same would be observed as declared law."
7. The action of the respondents is not in consonance with law laid down by this Court, therefore, action of the respondents is without lawful authority. It is an admitted fact that petitioner was superseded on the said ground after the imposition of the penalty by the Competent Authority vide order, dated 22-9-2001 and his punishment was converted into minor penalty by the Service Tribunal vide its judgment dated 5-4-2002. The learned Service Tribunal had granted benefit to the petitioner from the date of judgment as is evident from paras.4 and 5 of the impugned judgment after observing that the supersession imposed upon the petitioner on the recommendations of the Provincial Selection Board dated 26-1-2002 on the basis of which the Authority endorsed it on 19-2- 2002 was contrary to law and rules. It is also an admitted fact that Departmental Promotion Committee had superseded the petitioner in spite of the fact that petitioner had filed appeal before the Service Tribunal against the major penalty awarded by the competent authority vide order, dated 22-9-2001. This fact was in the knowledge of the concerned authorities at the time of supersession of the petitioner when his junior was promoted. This fact brings the case of the petitioner in the area that the petitioner was penalized by the act of the public functionaries. It is a settled proposition of law that nobody shall be penalized by the inaction of the public functionaries and it is also a settled principle of law that lis with regard to the major penalty as mentioned above was pending at the relevant time for adjudication before the Service Tribunal, therefore, it was in the interest of justice and fairplay that the respondents must have deferred the case of the petitioner to await the result of his appeal instead of superseding him. Therefore, action of the respondent is not in consonance with the well-known principle of equity, justice and fairplay. It is a settled law that public functionaries are duty bound to act within the frame work of Constitution and law as law laid down by this Court in Zahid Akhtar's case PLD 1995 SC 530. It is a command of the Constitution by virtue of Article 5(2) read with Article 4 that everybody whosoever must act in obedience of the Constitution to perform/ discharge their duties in accordance with law as law laid down by this Court in Ch.Zahur Elahi's case PLD 1975 SC 383.
8. For what has been discussed above, this petition is converted into appeal and is partly allowed.
The judgment of the learned Service Tribunal is modified to this extent that respondents are directed to consider the case of the petitioner for pro forma promotion from 22-9-2001 instead of 5-4-2002. No order as to costs.