1. ' SHAHID ANWAR BAJWA, J.--- With the consent of the learned counsel this Constitutional Petition was finally heard at Katcha Peshi stage and is being decided accordingly.
2. The petitioner was officer of labour department. He retired as Deputy Director Labour BPS-18 upon attaining age of superannuation on 9-3-2010. He was promoted as Deputy Director on 11-7-2007 and as per seniority list as on 31-12-2009 he was senior most Deputy Director. Working paper regarding promotion to the post of Joint Director Labour was prepared and same was placed before selection board. The Selection Board in its meeting held on 19-5-2009 deferred promotion of the petitioner for the reason that as reported a "number of enquiries are pending" against the petitioner.
3. ' Leaned counsel for the petitioner submitted that no departmental enquiry was pending against the petitioner. In this regard he referred to a letter written by the Director Labour in which he has stated that "there is neither any departmental/Anti-Corruption case pending against Salahuddin Mughal ... Nor recovery of any Government dues under the orders of Court/Directives of the Public Accounts Committee/ Department Proceeding is out standing against him." After this letter was issued the working was again prepared for consideration of the Provincial Selection Board. It was stated in the working paper as under:--- "Meantime Mr. Salahuddin Mughal Deputy Director Labour (BPS-18) being Senior most Deputy Director deserving for promotion as Join( Director Labour (BPS- 19) has retired from Govt. Service w. e.f. 9 March, 1010 on attaining the age of superannuation. Therefore in order to enable him to get benefit of his delayed due promotion as Joint Director Labour (BPS-19) may be shown so that he may get pensionery benefit Joint Director Labour BPS-19)."
4. ' Learned counsel referred to notification dated 6-7-2006 whereby one Shafi Muhammad Palejo was promoted to the post of Deputy Director after his retirement. Learned counsel submitted that pendency of reference in the National Accountability Bureau does not'debarred a person from being considered for promotion. In this regard he relied upon judgment in C. P. No,1175 of 2005 announced on 5-7-2006. Learned counsel also referred to section 10 of the NAB Ordinance and submitted that section 10 prescribed different sets of punishments and none is not relevant in respect of departmental disciplinary proceedings. He also referred to the Sindh Civil Servant (Appointment, Promotion and Transfer) Rules, 1974 and submitted that promotion is to be made on the basis of recommendation of the Provincial Selection Board and no other circumstances can be imported into promotion. Learned counsel relied upon Dr. Syed Sabir Ali v. Government of the Punjab through Secretary, Health Punjab and others 2003 SCM R 1535, Secretary Revenue Division and others v. Muhammad Salem 2008 SCM R 948.
5. Mr. Adnan Karim learned Addl. A.-G. Referred to pars 5 of the comments where it is stated that a NAB reference is pending against the petitioner for certain acts of wrong doing relating to tenure of posting of the petitioner with Sindh Workers Welfare Board and as a consequence of which loss was incurred by the Workers Welfare Board and petitioner and others voluntarily deposited the amount of loss. The learned Addl. A.-G. Next submitted that retrospective promotion cannot be granted. He referred to clause 1(b)(iv) of office memorandum dated 24-10-2007, issued by Establishment Division, where it is stated that when disciplinary proceedings are pending against civil servant his case for promotion would be deferred. Learned A.A.-G. Further contended that the loss incurred by WWF was deposited under section 25(a) of the National Accountability Ordinance.
6. He also referred to comments where it is stated that decision of Provincial Board is still awaited. He relied upon Chaudhry Faqir Muhammad v. Secretary to Government of Punjab, Agriculture Department, Punjab, Lahore and others 2009 SCM R 405. Government of Pakistan through Establishment Division Islamabad and 7 others v. Hameed Akhtar Niazi Academy of Administrative, Walton Training, Lahore and others PLD 2003 SC 110.
7. ' We have considered the arguments made by the learned counsel and have also gone through the record as well as case-law cited at the bar. In C.P. No,1175 of 2005 case of the petitioner was deferred due to NAB enquiry against him. The Division Bench which heard the matter held as under--- "In so far as the Department's view that the petitioner case is to be deferred till such time the enquiry is finalized. In our opinion this cannot be substantiated because it is settled law that a person is presumed innocent until found guilty. Hence the petitioner cannot be punished departmentally for a crime which ultimately, he may not be found guilty of. Consequently, we would allow this petition to the extent that the matter is remanded back to the Department with direction to decide the petitioner's case of promotion etc., solely on merit and the Rules without taking into consideration the pendency of the NAB case against him."
8. ' In Sabir Ali's case (supra) the appellant had superannuated and retired from service but he was due for promotion much before his retirement and was not considered for promotion on the ground that the restraining order has been passed by the Service Tribunal in another appeal. The Supreme Court first came to the conclusion and no restraining order had been passed by the tribunal and thereafter it held as under:--- "The entitlement of the appellant for promotion was not denied rather the process of promotion was withheld on the excuse of above referred order of Tribunal. We having considered the matter, have found that the appellant was wrongly prevented to get next promotion and discharge the higher responsibilities as a result of which he was not only deprived of the legitimate right of promotion but was also caused permanent loss of pensionary benefit of the higher grade. In view of the above, we direct that Departmental Authorities should proceed to consider the case of appellant for pro forma promotion as per his entitlement in accordance with law and complete the process within three months. This appeal is accordingly allowed with no order as to costs."
9. ' In Muhammad Saleem's (supra) case the respondent who was posted Deputy Commissioner of Income Tax was ignored by the department on the basis of 'fetish technicalities'. He approached the High Court which issued direction for consideration. Such order which was challenged in the Supreme Court. The Supreme Court first held that High Court had jurisdiction and thereafter noted that Muhammad Saleem was not considered for promotion on the ground of performance and evaluation report for specific period being not genuine. The Supreme Court hold as under:- "We have also not found that the case in hand involves any substantial question of law of public importance as according to the facts of the present case, only a direction has been issued to get PERs of the respondent's case completed from another officer, with whom respondent had been working as subordinate because the case of the respondent was of a special and an exceptional nature. As the senior of the respondents were admittedly biased and not independent to evaluate his performance due to commencement of criminal proceedings amongst them, therefore, this direction, was apt in the circumstances of the case. The law has provided it the duty of the department to get prepared the PERs of an officer to keep it and to maintain it, so that the same could be used for the other prescribed purposes and at the time of promotion of an official. At the relevant juncture, as the department was neglectful of its duty to get fulfilled the PERs of respondent, therefore, respondent having no alternate and remedy was right to beseech the indulgence of the learned High Court through its writ jurisdiction as the department was bent upon to deprive the right of its own officer, due to its own inaction. Accordingly, the direction issued by the Lahore High Court cannot be considered to be in violation of the provisions of the above noted Article 212 of the Constitution of Islamic Republic of Pakistan. Therefore, the appeal is dismissed with no order as to costs."
10. ' On the other hand learned Addl. A.-G relied upon Choudhry Faqir Muhammad's case (supra), where it was held that retrospective promotions cannot be awarded. It may be pointed out that case of Faqir Muhammad was decided in accordance with the provision of Punjab Civil Servants Act. Section 8(5) of the Punjab Civil Servants Act, provides as under:- "The retired civil servants shall not be eligible for grant of promotion or pro- forma promotion."
11. ' It may be pointed out that there is no corresponding provision in the Sindh Civil Servant Act, 1973 and therefore the case relied upon by the learned Addl. A.-G. Is clearly distinguishable. In Hameed Akhtar Niazi's case (supra) facts were that the petitioner entered a service in 1960 and was promoted to position of Deputy Secretary in Establishment Division. Consequently he became member of All Pakistan Unified Grades and he opted for Secretariat Group. He was placed at Sr.
12. No,69 in the seniority list. In 1979 while others were promoted to joint Secretary his name was not put up before Central Selection Board. He made a number of representations. When the matter reached Supreme Court the appellant had retire'. The Supreme Court observed as under:--- "It has been submitted on behalf of the respondents, who are likely to be benefited by the judgment of the Tribunal, that antedation of promotion is just a consequential relief and if this Court feels that the Tribunal could not do so, complete justice be done by exercising powers under Article 187 of the Constitution and those benefits be extended to other also. Virtually, it is not a case of antedation, but of granting promotion from back date to the retired officers, which could not be done under the rules."
13. ' It was contended by the learned Addl. A.-G. That petitioner had admitted his guilt before National Accountability Bureau in this regard letter dated 11.5.(sic) The entire letter is as under:- "In continuation to our previous letter on the above noted subject it is apprised that we are consented to deposit the amount of losses (excluding the penalty on account of our least involvement in these losses) conveyed to us.
14. ' In this regard it is informed that we have convened number of meetings with the industrialist of concerned establishment who have also agreed to extend cooperation in the recovery of above losses. We promise to put is all hectic and strenuous efforts to arrange the above amount within targeted date.
15. ' In view of above it is requested to intimate targeted time limit in the deposit of above losses. It would be appropriate if at least one month time is accorded for the deposit of above amount."
16. ' A reading of this letter indicates that the petitioner and others agreed to deposit the amount of loss while in muted tones denying any wrong doing and stated that they had taken up the matter with the industrialist of concerned establishments for recovery of losses. This in any case does not amount to plea bargaining in the sense the word is used in the National Accountability Ordinance, 1979.
17. ' Case Sabir Ali is stood on altogether different footings. His case was decided in accordance with the provision of section 8(5) of the Punjab Civil Sevants Act, which provision, as stated above, does not find its counter-part in the Sindh Civil Servant .Act, 1973 or even Civil Servants Act, 1973. Case of Hameed Akhtar Niazi was not considered by the selection board. The case of the petitioner is clearly distinguishable case as his case was put up before Provincial Selection Board in its meeting held on 19-5-2009 and it was deferred by the Central Selection Board as "a number of enquiries were pending" against the petitioner. It is settled law that once the case of civil servant is deferred and when it is subsequently considered his promotion is to be effective from the date of promotion of his other colleagues who were approved for promotion by the selection board, in the meeting in which case of the civil servants were deferred. In any case it is clearly stated by the department in its comments that case was again put up before Selection Board and result is awaited. Therefore it appears that question of promotion is still under consideration of the departmental authority. The present is not the case where the petitioner is claiming promotion after his retirement. It is a case where wheels of administrative juggernaut in respect of promotion of the petitioner were clearly in motion and his case was deferred.
18. Prima facie any NAB reference cannot be ground for denying consideration of case of the civil servant because in NAB reference, it was correctly argued by Mr. Khalid Imran, a particular set of punishments have been provided and then, punishments are not akin to punishments prescribed under the Efficiency and Discipline Rules. It was all along available to the departmental authorities to initiate domestic proceedings but they choose not to do so. Criminal trial has no nexus with domestic proceedings. Therefore pendency of reference before NAB does not debar a civil servant for being considered for promotion.
19. ' We therefore, direct the respondents to consider the case of the petitioner for promotion in accordance with law. Provincial Selection Board shall also consider all the relevant and attending circumstances while deciding the case of the petitioner for promotion in accordance with law. This constitutional petition is disposed of in the above terms.