IQBAL HAMEED-UR-RAHMAN, CJ. - Through the instant Constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 the petitioner has made the following prayer:- "it is respectfully prayed that a this Court may be pleased to declare that the decision dated 06.5.2009 taken by respondent No. 1 for superseding the petitioner in meeting of 28.3.2009, held for considering the promotion of the petitioner along with respondents No. 3 & 4 and other officers from BS-19 to BS-20, suffers from malice in law and fact and that the petitioner has been superseded in violation of the law, rules and regulations and hence the said decision is without lawful authority and of no legal effect.
And respondents No. 3 and 4 who were junior to the petitioner and whose service record and quantification of the ACRs was far below that of the petitioner and that they, in preference to the petitioner, were promoted unlawfully.
And for a direction to respondents No. 1 & 2 to promote the petitioner from BS-19 to BS-20 as the petitioner was not only eligible but was eminently fit for promotion to the post in BS-20 and the case of the petitioner for promotion may be finalized by respondent No. 1 through circulation as the petitioner is fully fit for promotion to the post in BS-20 and he may be promoted from the date of Notification dated 06.5.2009, without disturbing his seniority."
2. Briefly the facts as mentioned in the instant writ petition are that the petitioner joined service in the Directorate General of ISI on 20.6.1981 in BS-1.7, through a competitive examination held by the Ministry of Defence. The petitioner is presently serving in BS-19 and during twenty-eight years of service, he was never conveyed ativerse/negative remarks in the- PERs. However,, inspire of excellent service record- adverse remarks were conveyed to the petitioner in his ACR for the period 16.3-2007 to 2^.7.2007. The petitioner filed an appeal in the Federal Service Tribunal, Islamabad for expunging the adverse remarks in ACR for the period of 16.3.2007 to 26.7.2007. In reply to the said appeal respondent No. 2 submitted that the case of the petitioner for promotion to BS-20 is being sent up to the Central Selection Board and on a query by the learned FST, ,the respondent submitted that the adverse entries in the ACR for the period 16.3.2007 to 26.7.2007 shall not be considered, as the same are sub-judice before the learned Tribunal. Subsequently, the petitioner was informed that respondent No. 1 has superseded the petitioner, hence, the instant writ petition.
3. Learned counsel for the petitioner, at the very outset, has apprised the Court that the petitioner has already been promoted to BS-20 w.e.f. 24.9.2011 and has also retired from service on 17.10.2011 and at the moment is only praying for proforma promotion w.e.f. 06.5.2009, the date on which he was superseded unlawfully and his juniors were promoted to BS-20. Learned counsel for the petitioner has further argued that due to malice the petitioner was not promoted on 06.5.2009 and vide order dated 02.6.2009 of the Lahore High Court, Rawalpindi Bench, .Rawalpindi, respondents No. 1 & 2 were directed to produce the minutes of the meeting in which the petitioner was recommended for supersession but those minutes were never produced before the Court; that the petitioner was granted promotion w.e.f. 24.9.2011 on the basis of the record which he had on 06.5.2009 when he was superseded and his juniors were promoted in BS-20; that the adverse remarks contained in the PER of the petitioner for the period January to July, 2007 were expunged by the Federal Service Tribunal, Islamabad vide judgment dated 20th January, 2010, as such, the petitioner is entitled for promotion w.e.f. 06.5.2009, when his juniors were promoted to BS-20.
Learned counsel for the petitioner has relied upon 2012 SCMR126 and 1998 SCMR 736.
4. Conversely learned counsel for respondents No. 3 & 4 has argued that the petitioner is seeking antedated promotion which is not otherwise permissible under the law; that the petition is bad for non-joinder of necessary parties; that the petitioner has remained working with Directorate General ISI, whereas, the said Directorate has not been impleaded as respondent in the writ petition; that the petitioner was also not promoted even in the meeting of CSB held in the year-2010 to which he did not raise any objection and thereafter, the petitioner was considered for promotion in the year 2011 and he was granted promotion in BS-20 to which he did not object. Learned counsel for respondents No. 3 & 4 has further argued that this Court while dealing with W.P. No. 1152 of 2011 has held that decision of the Central Selection Board cannot be interfered by the High Court in exercise of Constitutional Jurisdiction and the said decision of this Court has been upheld by the Hon'ble Supreme Court of Pakistan vide judgment dated 27.6.2012 passed in Civil Petition No. 1178 of 2011.
5. Learned Deputy Attorney-General appearing on behalf of respondent No. 2/Establishment Division has argued that the petition was filed when the petitioner was serving as D.G. ISI under the Ministry of Defence, whereas, the said Ministry has not been impleaded as one of the respondents, hence, the instant writ petition is not maintainable; that the petitioner is seeking his promotion w.e.f.
The date his juniors were promoted which cannot be granted under the law. Learned Deputy Attorney-General has prayed for dismissal of the writ petition.
6. I have heard the learned counsel for the petitioner, learned counsel for the respondents No. 3 & 4 as well as the learned Deputy Attorney-General and perused the documents appended with the petition.
7. The petitioner, through the instant writ petition seeks his promotion w.e.f. 06.5.2009, the date on which he was superseded and allegedly his juniors were promoted to BS-20.
8. Admittedly, the petitioner was serving in the Directorate General ISI under the Ministry of Defence and had retired from service on 17.10.2011. He was superseded in the meeting of the Central Selection Board held on 28.3.2009 and allegedly his juniors were promoted to BS-20, Thereafter, the petitioner was again not promoted even in the meeting of Central Selection Board held in the year- 2010. However, the petitioner was promoted to BS-20 w.e.f. 24.9.2011. The petitioner in the writ petition has mentioned that adverse remarks were conveyed to him through his ACR for the year- 2007, as such, he was superseded by the Central Selection Board. The adverse remarks conveyed to the petitioner in his ACR for the year 2007 were set aside by the learned Federal Service Tribunal, Islamabad vide judgment dated 20th January, and thereafter, on 24.9.2011 he was promoted to BS-
20. As such, no mala i.e could be attributed to the Central Selection Board for superseding the petitioner vide Notification dated 06.05.2009, as on the said date, adverse remarks contained in petitioner's PER for the period January to July, 2007 were holding the field. The said remarks were set aside by the learned Federal Service Tribunal, Islamabad vide judgment dated 20th January, 2010 arid thereafter, he was promoted to BS-20 w.e.f. 24.9.2011. The petitioner, unfortunately, in the writ petition lias not challenged his supersession in the year 2010* as such, b^ any stretch of imagination it could not bp held that the petitioner's supersession vide notification dated 06.5.2009 was illegal, as no document is available on the i.e which shows that the petitioner was on higher pedestal than respondents No. 3 & 4 on the said date. It is also pertinent to mention here that the petitioner had remained serving in the Directorate General of ISI under the Ministry of Defence, however, the said Ministry has not been impleaded as one of the respondents in the writ petition, therefore, ' the writ petition is also liable to be dismissed on this, ^more too. Learned counsel for the petitioner has relied upon .The judgment of Hon'ble Supreme Court of Pakistan reported as 2012 SCMR 126. I have carefully examined the said judgment of the Hon'ble Supreme Court of Pakistan.
The said judgment of the Hon'ble Supreme Court is quite distinguishable from the facts of this case.
In the said case, the petitioners had approached the Punjab Service Tribunal, Lahore for ante- dated promotion as their working papers were prepared by the authorities concerned for their consideration for promotion, however, before passing of any order by the competent authority, they had retired. However, in the instant writ petition a quite different issue is involved, hence, the judgment referred to by the learned counsel for the petitioner is not helpful to the case of the petitioner. It is also settled principle of law that decision of the Selection Board Cannot be interfered with by the High Court in exercise of Constitutional jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. Reliance in this regard is placed on the judgments reported as Dr. Omer Faruq Zain v. Bahauddin Zakariya University, Multan through Vice-Chancellor and 6 others (2008 PLC (C.S.) 1012 [Lahore] and Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others (2008 SCMR 960). A similar view was also taken by this Court while passing judgment dated 22.6.2011 in writ petition No. 1152 of 2011 titled Athar Hussain Khan Sial v. The Government of Pakistan and another" which was upheld by the Hon'ble Supreme Court of Pakistan vide its judgment dated 27.6.2012 passed in Civil Petition No. 1178 of 2011.
9. In view of the above perspective, instant writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 has no merits. Resultantly, the same stands dismissed being meritless.