' MUHAMMAD FARRUKH IRFAN KHAN, J.--- Through this Constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 the petitioner prays as under:--- "(i) An appropriate writ my kindly be issued.
(ii) The impugned supersession may kindly be declared illegal be converted into deferment.
(iii) The alien condition in the impugned order regarding "subject to the clearance by the NAB" may kindly be ordered to be deleted.
(iv) The respondents may kindly be directed to issue Notification of petitioner's promotion and promotion may kindly be effected from the date when the petitioner was deferred in the year 2006.
(v) Writ may kindly be allowed with all consequential/back benefits.
' Any other relief, which this honourable Court deems just and proper under the peculiar circumstances of the present case, may also very kindly be awarded to the petitioner."
2. Learned counsel for the petitioner submits that the petitioner was fully eligible for promotion in BS-18 in the year 2006 but his promotion was deferred due to pendency of an inquiry; that again petitioner's case was considered for promotion in October, 2008 but the petitioner was superseded on account of pendency of an inquiry in NAB; that on 28-10-2009 petitioner's case for promotion was re-considered and he was promoted on regular basis but subject to the condition that if NAB's proceedings are dropped against the petitioner; that the impugned order of supersession of the petitioner is against law and principle of natural justice; that this Court as well as Hon'ble apex Court in a number of cases has held that pendency of inquiry and even suspension cannot be made basis of supersession. Relies on Sh. Muhammad Riaz v. Government of the Punjab through Secretary, Communication and Works and another (2003 PLC (C.S.) 1496), Captain Sarfraz Ahmad Mufti v. Government of the Punjab and others (1991 SCMR 1637). Adds that without any evidence and material the respondent/department presumed the petitioner to be corrupt and withheld petitioner's promotion; that though enquiry is pending against the petitioner but it has not been concluded for the last six years, therefore, the petitioner's promotion cannot be withheld on the basis of this so called enquiry; that it is settled law that without conducting regular inquiry no penalty can be imposed on a civil servant; that even otherwise NAB authorities issued a letter to the respondent/department that their investigation cannot become a bar on petitioner's promotion; that petitioner's promotion has been approved by the Provincial Selection Board-II but the condition of prior clearance of NAB inquiry, is alien to any rules and regulation; that in promotion matters only eligibility and suitability of a candidate is to be assessed and if a candidate fulfills this criteria his promotion cannot be withheld on any other reason; that a lawful right has also accrued in favour of the petitioner when his promotion has been approved by the competent authority; that the petitioner is expecting promotion since 2006 when his colleagues were promoted but the petitioner was deferred without any fault on his part as such he cannot be penalized; that one of the colleague of the petitioner namely Ahmad Ali Zafar placed under similar circumstances has been promoted by the respondents. Alleges discrimination.
3. On the other hand, learned Law Officer submits that in the year 2006 the petitioner was not considered for promotion as his matter of seniority was pending adjudication before the PST; that the supersession of the petitioner was made on the basis of corruption, bad reputation and pending inquiry against him in NAB; that the petitioner did not challenge his supersession at that time as such this constitutional petition suffers from laches and delay; that a departmental inquiry regarding corruption was initiated against the petitioner which was held in abeyance at the own request of the petitioner on the ground of pendency of proceedings before the NAB; that the petitioner's promotion was conditional and by doing so no illegality or irregularity is committed by the respondent/ department, as according to the policy of the government, promotion of a civil servant can be deferred if disciplinary proceedings, anti- corruption, or other enquiries or criminal cases are pending against him; that it is a prerogative of the government to formulate any policy for promotion and the same cannot be challenged; that so far as discrimination is concerned, Ahmad Ali Zafar was superseded on the basis of adverse remarks recorded in his ACRs in the year 1997-98; that by the orders of the competent authority case of said Ahmad Ali Zafar was reconsidered as his adverse remarks were overruled by the Chairman of Provincial Selection Board and after reconsideration he was cleared for promotion; that the case of the present petitioner does not fall on the same footing as such no discrimination has been done to him.
' I have heard the arguments advanced by the learned counsel for the parties and perused the record.
5. First of all I would like to dilate upon the grievance of the petitioner regarding his supersession made by the Provincial Selection Board-II. It is apparent from the record that the Selection Board superseded the petitioner on 29-9-2008 on the basis of persistently bad repute on account of corruption as well as pending inquiry in NAB. Admittedly, the petitioner has not challenged his supersession before any forum and kept his eye, shut for almost two years without any plausible explanation. In case reported as Jawad Mir Muhammadi and others v. Haroon Mirza and others (PLD 2007 Supreme Court 472) the Hon'ble Supreme Court of Pakistan has held as under:--- "It is settled proposition "that delay defeats equities and equity aids the vigilant and not the indolent". Relying on the above maxim this Court as well as High Courts of the Country have refused to come to the aid of a party who had not been diligent, vigilant and acted in a prudent manner."
' It was further laid down in the aforesaid judgment as follows:--- "From a perusal of the passage/quotations reproduced hereinabove the question of delay/laches in filing the constitutional petition has to be given serious consideration and unless a satisfactory and plausible explanation is forthcoming for the delay in filing a constitutional petition, the same cannot be overlooked or ignored subject, of course, having regard to the facts and circumstances of each case."
6. The petitioner has challenged his supersession when he was cleared for promotion by the Provincial Selection Board in the next year. Therefore, at this later stage grievance of the petitioner to the extent of supersession suffers from delay and laches as such not tenable.
7. So far as the grievance of the petitioner that his promotion subject to clearance by the NAB vide notification dated 7-12-2009 is not warranted under the law is concerned, perusal of the record shows that serious allegations of forging and fabricating certain files for getting C exemption are levelled against the petitioner while he was posted in the LDA and in this regard not only the departmental proceedings have been initiated against him but also an inquiry is pending before the NAB which is in progress. In case reported as Muhammad Akbar Khan v. Inspector General of Police, N.-W.F.P. Peshawar and 4 others (2000 SCMR 36) the Hon'ble Apex Court has held as under:- -- "It is settled law that if an inquiry is pending against a civil servant under Efficiency and Discipline rules, or the adverse findings have been recorded against him, then the delinquent civil servant is not considered for grant of selection grade or promotion till the inquiry is finalized."
' In the instant case, the petitioner himself made request for holding the departmental proceedings in abeyance until the conclusion of NAB's inquiry and keeping in view the provisions of section 18(d) of the NAB Ordinance, 1999 the departmental authorities kept the same pending.
7. The competent authority on the recommendations of the Provincial Selection Board cleared the petitioner for promotion subject to the condition that NAB proceedings have been dropped against him and in my humble view while imposing this condition no prejudice is caused to the petitioner by the departmental authorities. The rational behind it is not only to maintain balance with the alleged wrong done by the petitioner but also to make an example for others as preventive measures for reformation of public functionaries. If a public functionary who is allegedly involved in certain kind of forgery and fabrication is allowed to be promoted in the next cadre without clearance of these charges it would be disharmonious to the principle of good governance and the requirements of service discipline.
8. Apparently there is no mala fide on the part of the respondents. The petitioner is not only cleared for promotion but the departmental authorities have also issued number of letters dated 23-1-2010, 28-5-2010 and 12-8-2010 to the NAB authorities to finalize the proceedings pending against the petitioner. If ultimately the petitioner is exonerated by NAB authorities for the commission of alleged charges then of course the petitioner would be promoted in the next cadre from the date when he was cleared for promotion by the competent authority. At this juncture, issuance of direction to the respondents to promote the petitioner without conclusion of the NAB proceedings would not only F destroy the fiber of discipline in service but also encourage others to resort to such illegal activities.
The departmental authorities are best judges as compared to anyone else to decide such issues.
Case-law referred to by the learned counsel for the petitioner is distinguishable on the facts and circumstances of the present case as in both the said cases the departmental authorities withheld the promotion of a civil servant on the basis of pendency of certain inquiries/penalties whereas in the present case the petitioner has been cleared for promotion by the competent authority but subject to certain conditions.
10. So far as discrimination as alleged by the petitioner is concerned, admittedly said Ahmad Ali Zafar was superseded on 29-9-2008 on the basis of adverse remarks recorded in his ACRs in the year 1997-98 despite the fact that the said remarks were overruled by the Chairman PSB, therefore, upon the instructions of the competent authority the case of said Ahmad Ali Zafar was reconsidered and he was cleared for promotion but there too the competent authority imposed the condition "subject to the final determination of inter-se-seniority in the light of verdict of Apex Court in C.P.L.A. Nos.1460/L to 1470 and 1476-L of 2007." No case of discrimination is made out against the petitioner for the following reasons:---
(i) Because the said Ahmad Ali Zafar was superseded due to adverse remarks in his ACRs but the present petitioner was superseded on the basis of persistently bad reputation on account of corruption as well as pending inquiry in NAB. The adverse remarks of said Ahmad Ali Zafar were overruled by the competent authority, whereas, the inquiry against the petitioner before the NAB authorities is still not concluded.
(ii) Furthermore, said Ahmad Ali Zafar was also cleared for promotion subject to some condition and the same is the situation with the present petitioner and he is also cleared for promotion subject to a certain condition.
11. The upshot of the above discussion is that the learned counsel for the petitioner is unable to point out any illegality or irregularity on the part of the respondents warranting interference by this Court in its Constitutional jurisdiction. Resultantly, this petition has no force and the same stands dismissed with no order as to costs.