AKHTAR ZAMAN MALGHANI, J.--- Following relief has been claimed in the instant Constitutional petition:--- (A)(a) recommendation of Departmental Promotion Committee (Respondent No. 3) for supersession of petitioner's promotion from BS-17 to BS-18 was illegal, in excess of authority and of no legal effect;
(b) approval of supersession by Secretary Ministry of Railway/(Chairman Railway Board) through impugned Notification dated 27.6.2007 was without lawful authority;
(c) Impugned Notification dated 27.6.2007 of supersession of petitioner and promotion of respondents 4 to 6 from BS-17 to BS-18 ,as also consequential Notification of promotion issued by Inspector General Pakistan Railway Police were unlawful, arbitrary and thus without lawful authority. #TBS (B) #TBE Honourable Court may direct Secretary Ministry of Pakistan Railway/Chairman Railway to give effect to above declarations by canceling impugned Notification dated 27:6.2007 and to reconvene Departmental. Promotion Committee Meeting for consideration of petitioner according to' law and Promotion Policy consistently with seniority - ' of petitioner; further restraining preparation of Working Paper for new promotion on retirement of 4th respondent."
2. Briefly stated, facts of the case are that in the . Month of June, 2007 Departmental Promotion Committee considered case of the petitioner alongwith other Deputy Superintendents Police of Railways for promotion from BS-17 to BS-18, however; the petitioner was superseded and . Respondents Nos.4 to 6 were promoted. According.
To petitioner, the minutes of Departmental Promotion Committee were not communicated, but it was informed that his supersession was due to previous punishment. The .Petitioner also filed appeal through proper channel and according to him; no decision was communicated to him despite reminders.
3: We have heard learned counsel for the petitioners as well as learned counsel for respondents.
Learned counsel for the petitioner vehemently contended that no reasons whatsoever have been mentioned in the Notification for superseding petitioner, as such; same was not legally maintainable. He further contended that according to information of petitioner, he was superseded on account of previous punishment, which could not have been legally taken into consideration, as after reduction in pay scale by three stages; petitioner has earned good and very good evaluation reports for years 2004, 2005 and 2006. He further argued that before and after punishment, petitioner had been acting or holding additional charge of Superintendent of Police, during incumbency whereof, he earned good and very good evaluation reports, as such; there was no lawful ground for supersession of petitioner, which was discriminatory, because the said Departmental Promotion Committee recommended promotion of Inspectors of Police and Deputy Superintendent Police despite their previous bad service records.
On the other hand learned Standing Counsel objected upon the maintainability of instant petition, as, according to him, the petitioner has remedy before Service Tribunal for redress-al of .His grievances. He further contended that the petitioner has no vested right in promotion, as such the petition was not maintainable. He next argued that after considering minutely the entire service record, previous punishment, 13, E.Rs.. Integrity, report of army vigilance, the Secretary/Chairman Railways by applying his independent and judicious mind approved supersession of petitioner and promoted three DSPs, who were found fit for promotion to the rank of Superintendent of Police.
2. The learned counsel for respondents Nos 2 to 6 adopted the same line of arguments
4. We have carefully considered the contentions put forth by the parties' learned counsel. As regards maintainability of instant Constitutional Petition, it may be observed that according to respondents themselves, the case of petitioner was considered in Departmental Promotion Committee, but he was superseded after perusal of his service .Record, previous punishment, P.E.Rs., integrity, reputation, report of Army. Vigilance etc. And three DSPs, who were found fit for promotion, were accordingly promoted, which means, promotion of the petitioner was not withheld on the ground of eligibility, but he was not found fit for promotion on the basis of his service record and other documents, therefore; in our considered view, in view of Clause (b) of proviso to sub- section (1) of Section 4 of the Civil Servants Act, 1973, the Service Tribunal has no jurisdiction in the matter and Constitutional Petition is maintainable, as it relates to the fitness and promotion of the petitioner to the next higher grade. In this regard, we are fortified by the judgment reported in PLD 1994 S.0 539 and unreported judgment of this Court passed in Constitutional Petition No. 254 of 2000 decided on 27th June, 2000.
5. Coming 'to merits of the case, it may be noted. that in the impugned notification, no reasons whatsoever have been mentioned for supersession of petitioner nor copy of minutes of the committees of D.P.C. Has been filed alongwith parawise comments, from which it could have been ascertained as to on what grounds, the petitioner was superseded, which minutes, in our view should have been appended to enable this Court to see as to whether the grounds finding favour D.P.C. For supersession were legally tenable. Of course; it is for the Departmental Promotion Committee to determine about fitness of the petitioner for promotion, which is obviously subjective satisfaction of the competent forum and this Court cannot substitute its opinion on merits unless it is shown that D.P.C. Has acted arbitrarily or in derogation of the rules, but at the same time. Where authorities have been empowered with such discretion, they have to act reasonably, fairly and without any ulterior motive and such discretion is not to be exercised on whims, caprices and moods of the authorities, because it is now well-settled that exercise of discretion is circumscribed by principles of justice and fairness; that is why Section 24-A was inserted in General Clauses Act, 1897, which provides that where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, office or person, such power shall be exercised reasonably, fairly, justly and for the advancement of the purpose of the enactment.
As already observed, no reasons whatsoever have been mentioned .: in the notification about supersession of the petitioner, however; in the parawise comments, the official respondents agitated that the petitioner was superseded after taking into consideration service record, previous punishment, PERs, integrity, reputation and 'report of army vigilance. As regards previous punishment or report of army vigilance, it may be noted that on the basis of same, the petitioner was already superseded in the year 2000, therefore, in accordance with Estacode after earning PERs for two full years, he was entitled for consideration for promotion and such, punishments or reports could not have been legally considered. Similarly; it is not disputed by the respondents that the petitioner has earned PERs, good and very good, for the years 2004, 2005 and 2006. No other material has been placed oh record on the basis whereof integrity or reputation of the petitioner can be said to have been adjudged by Departmental Promotion Committee, therefore, we have no alternate but to hold that promotion of petitioner was withheld on the basis of no evidence.
For the foregoing reasons, we are inclined to allow this petition and declare supersession of petitioner to be illegal and without lawful authority. Consequently; the official respondents are directed to reconsider the case of petitioner for promotion in the light of relevant rules and law as well as observations made hereinabove. - .