' SARMAD JALAL OSMANY, J.---This Petition impugns the judgment of the learned High Court of Sindh (Karachi) in C.P. No,2256 of 2008 whereby same was allowed.
2. Briefly stated the facts of the case are that the petitioner along with respondents Nos.1 to 25 was working as an Assistant Engineer in BS-17 in the Irrigation Department, Government of Sindh. The aforementioned respondents admittedly were senior to the petitioner in service who was at SI.
No,204 of the seniority list. The petitioner submitted an application to the Chief Minister, Government of Sindh for his out of turn promotion on which the latter observed that "examine his contention about his performance and put up in detail." Thereafter a summary was prepared by the Secretary, Irrigation Department, and Government of Sindh wherein it was recommended that he should await promotion in his own turn which was approved by the Chief Secretary. However the Chief Minister directed that the petitioner be promoted in view of his performance and hence a Notification dated 25-10-2008 was issued and the petitioner was promoted to BS-18. The said Notification was impugned in C.P. No,2256 of 2008 filed by the respondents Nos.1 to 25 and as observed above it was allowed and hence this petition for leave to Appeal.
3. Mr. M. M. Aqil Awan, learned Senior Advocate Supreme Court has basically contended that previously C.P. No,2256 of 2008 was disposed of along with a number of other petitions dealing with out of turn promotions by the learned High Court of Sindh vide Order dated 31-3-2009 wherein it was observed as under:- "7. After careful consideration of the proposal extended by Mr. Abdul Fateh Malik, learned Additional A.-G., which is consented by other counsel, except Mr. Arshad Tanoli, we find it just, equitable, fair and practical to redress the grievance of all the petitioners, who are agitating against the out of turn promotions awarded to some other officers in the Police Department, without meeting the requirement and following the procedure prescribed under Rule 8-B of the Rules of 1974.
' This being the position, we are inclined to accept such proposal and dispose of these petitions in the term that the Government of Sindh shall take immediate steps for the revival of Rule 8-B, which is even otherwise requirement of law in view of the clear language of section 9-A (ibid) read with section 2(g) of the Act of 1973, in the same lines as already available in the notification dated 10-2-2005. It is painful to observe here that the scheme of working of section 9-A of the Act of 1973 set out under Rule 8-B (ibid) was disturbed and upset by the then Chief Minister, Government of Sindh at his whims by its illegal cancellation within three months of its introduction, which is evident from his order dated 24-4-2005.
9. We expect that such exercise will be completed by the Government of Sindh within 60 clays from the date of this order, where after the cases of all the police officials, who are petitioners/respondents in these petitions and have been promoted or deprived promotion after the insertion of section 9-A, will be re-examined by the committee duly constituted under Rule 8- B, strictly in the light of such rule on merits. Till such exercise is completed by the committee, as an interim arrangement the promotions already granted to some of the police officials, will not be disturbed."
4. According to the learned Senior Advocate Supreme Court the petitioner had no grievance with such Order passed by the learned High Court of Sindh. However the respondents Nos.1 to 25 thereafter filed an application under section 151, C.P.C. To recall the said Order passed by the learned High Court on the ground that C.P. No,2256 of 2008 was wrongly clubbed with the other petitions since they related to police officials whereas the instant C.P. Related to the officers of Irrigation Department, Government of Sindh. The said miscellaneous application (No,2394 of 2009) was allowed on 22-5-2009 by the learned High Court in absence of the petitioner and it was directed that C.P. No,2256 of 2008 would come up afresh for hearing. Thereafter the petitioner filed an application under section 12(2), C.P.C. For recalling such order which was dismissed vide the impugned Judgment. Hence according to learned Senior Advocate Supreme Court the Order dated 22-5-2009 was obtained behind the back of the petitioner and therefore there exists no legal ground for recalling the earlier Order dated 31-3-2009 vis-a-vis. C.P. No,2256 of 2008 and hearing the same afresh resulting in its dismissal. According to him the correct procedure should have been that the petitioner should be heard firstly on his application under section 12(2), C.P.C.
Challenging the Order dated 22-5-2009 and then hear C.P. No,2256 of 2008 afresh if the said application was dismissed.
5. On the merits of the case learned Senior Advocate Supreme Court has submitted that the petitioner was an exceptional officer and had rendered meritorious services to the Government and people of Sindh while performing his duties especially during the flood which devastated the Province of Sindh in the year 1994 and hence he was correctly promoted.
6. On the other hand Mr. Masood A. Noorani, learned Advocate Supreme Court for respondents Nos.1 to 25 has fully supported the impugned Judgment and submitted that Para No,12 thereto is the complete answer to Mr. M.M. Aqil Awan's arguments that the petitioner was never heard when Order dated 22-5-2009 was passed whereby C.P. No,2256 of 2008 was directed to be heard afresh.
According to the learned Advocate Supreme Court in said para it is clearly stated that C.M.A.
No,2394 of 2009 would be heard afresh which was done and the High Court came to the conclusion that C.P. No,2256 of 2008 had no nexus at all with the other Petitions which concern gallantry of police officers and their out of turn promotion and hence said C.P. Was correctly ordered to be de-linked and heard afresh. Hence the Application under section 12(2), C.P.C. Was also dismissed. On the merits of the case learned Advocate Supreme Court has stated that the petitioner did not have an extraordinary career at all as all along he had been doing his job which was his obligation as a civil servant and he had rendered no great favour to anyone. In support of his submission learned Advocate Supreme Court has placed reliance on Ghulam Shabbir v.
Muhammad Munir Abbasi and others (2011 PLC (C.S.) 763).
7. We have heard both the learned ASCs and also perused the record with their assistance.
8. Insofar as Mr. M. M. Aqil Awan's argument that the petitioner was never heard on 22-5-2009 when Order dated 31-3-2009 vis-a-vis C.P. No,2256 of 2008 was recalled, suffice it to say that Para No,12 of the impugned Judgment deals with this aspect of the matter exclusively. In no uncertain words it has been observed by the learned High Court that all the learned Counsel were again re-heard on this issue and the conclusion was reached that since the other Petitions dealt with the cases of out of turn promotion of police officers on the basis of gallantry etc. The Order dated 22-5-2009 recalling the earlier Order dated 31-3-2009 vis-a-vis C.P. No,2256 of 2008 was correctly passed as this relates to the petitioner's case who was serving in the Irrigation Department and was given out of turn promotion. Consequently we are satisfied that learned counsel for the petitioner was fully heard on this matter and the correct conclusion was reached that indeed C.P. No,2256 of 2008 did not have any nexus with the other petitions and therefore duly de-linked from the latter set of petitions.
9. Insofar as the merits of the case are concerned we are of the opinion that the petitioner was granted out of turn promotion without any basis or reason. The petitioner in his letter to the Chief Minister, Sindh has stated that he has been serving the Irrigation Department since 1991 in all three barrages of Sindh with honesty and devotion and has produced outstanding results in all tasks assigned to him irrespective of the fact that whether or not it was beyond his call of duty to the entire satisfaction of his superior officers and that "he has passed successfully the super flood of 1994." On such summary the Secretary Irrigation, Government of Sindh has opined that the petitioner should be considered in his turn which was seconded by the Chief Secretary but the Chief Minister ordered that he may be promoted in view of his performance. In our opinion the petitioner has not rendered any extraordinary services nor excelled in his work as depicted in the summary under consideration so as to be given out of turn promotion after superseding 'as many as 25 officers i,e, the Private Respondents. It would further be seen that the Secretary of the Department in the aforementioned summary did not say a single word regarding the performance of the petitioner rather he opined that his request would be considered when due because the petitioner was at Sl. No,159 and promotion had been allowed up to SI. No,8 in the seniority list and those recommendations were endorsed by the Chief Secretary. Finally it would be seen that section 9-A of the Sindh Civil Servant Act, 1973 which provides for out of turn promotion was deleted from the statute book on 26-2-2008 but yet the out of turn promotion was granted to the petitioner on 25-10-2008. Hence in any event the Order of the Chief Minister was manifestly against the law if not without merit.
10. For the foregoing reasons we are of the opinion that there is no defect or other material irregularity in the conclusions reached by the learned High Court of Sindh and hence this petition is dismissed. Leave is declined.