' KHALID MAHMOOD, J.--- Munsif Shah petitioner seeks the constitutional jurisdiction of this Court praying for :--- "that on acceptance of this writ petition, a direction may graciously be issued to the respondents to promote and upgrade the petitioner w,e,f, the date first Junior Officers / respondent No,5 was promoted."
2. The facts, as mentioned in the petition, are that petitioner being qualified and eligible joined WAPDA on 2-2-1978 as Junior Engineer Electrical, on open merit basis, and presently working as DMG/Xen in PESCO under the administrative Control of PEPCO. A number of Xen/Senior Engineers were promoted to the post of Superintending Engineer in 2007, 2008 and 2009 but petitioner has illegally, unlawfully and malafidely been ignored for promotion. Hence, this writ petition.
3. Learned counsel for petitioner argued that although the petitioner was served with show causes notices and minor penalties were awarded time and again and petitioner being senior most and qualified has completed all codal formalities and requirements mandatory for promotion and stood at S:No,129 of the seniority list of Senior Engineers/Xens. Respondents have illegally and unlawfully deprived him from such promotion. It was argued that he is entitled to be given preference over all other candidates in view of his qualifications but respondents have wrongly and illegally ignored the petitioner. It was also argued that a number of Xens/Senior Engineers were promoted to the posts of Superintending Engineers upto Serial No,358 but petitioner was deprived of the promotion, illegally, malafidely and unlawfully.
4. On the other .Hand, learned counsel for respondents opposed the petition' and contended that petitioner's conduct throughout the service remained not upto the mark, therefore, he was rightly dropped time and again by the respondents.
5. Arguments heard and record perused.
6. The following questions crop up in mind, rather which would be essential for just decision of the case:---
(1) Whether on the basis of censure promotion can be dropped?
(2). Whether petitioner was wrongly and illegally not considered for promotion on the ground of penalty imposed?
(3) Whether the petitioner was correctly deferred from promotion by the Promotion Committee in the year 2007 for not producing A.C.Rs, for two years i,e, 2003-2004?
7. Petitioner was deferred from promotion by the respondent department on the grounds that the PEPCO Management adopted. The promotion policy of Establishment Division, Government 'of Pakistan issued vide O. M . No, 1/3/2007-C P-1I dated 24-10-2007, mutatis mutandis; that as per the threshold prescribed for promotion from BPS-18 to BPS-19 aggregate marks of Efficiency Index is fixed as 60; that the policy further provides that for censure 1-1/2 marks are to be deducted and similarly for recovery due to negligence 2 marks are to, be deducted and on account of stoppage of one increment 3 marks are to be deducted and respondents furnished details of penalties imposed upon the petitioner from time to time owing to which the petitioner was denied promotion in the year 2007, 2008 and 2009. Further, as per contention of respondents, petitioner secured less than 60 net marks, which were aggregate for promotion. The criteria laid down is as under:--- FEATURES OF THE PROMOTION POLICY.
(1) Eligibility criteria for consideration for promotion.
(a) The eligibility criteria for consideration for promotion shall be as under:---
(i) Fulfillment of prescribed minimum length of service for promotion to various respective higher scales.
(ii) Satisfactory completion of mandatory training(s).
(iii) Possessing qualification / experience and other conditions prescribed in the relevant Recruitment Rules.
(iv) An officer superseded earlier shall be considered after earning Annual Confidential Report
(ACR) for one full year. For example, an officer superseded on the basis of his ACR(s) upto 2007, will become eligible for consideration after earning ACRs for 2008.
(b) CONDITIONS FOR SUPERSESSION ' An officer may be superseded for not conforming to at least any of the following reasons:---
(1) The officers does not qualify the aggregate score prescribed for promotion.
(2) The officer has not passed Departmental Promotion Examination (wherever applicable) in due chances as per SOP (Training Courses and Promotion Exams) March, 2005 as amended from time to time.
(3) A superseded officer will not lose eligibility for consideration; no matter how many times officer is superseded.
(4) The officer superseded for want of passing Departmental Promotion Examination (DPE) in due chances will be considered as a normal candidate in the next promotion board after passing DPE without prejudice of the rason that officer has not passed DPE in due chances.
(5) In case of supersession officer will lose seniority vis-a-vis his/her juniors, approved for promotion in the same board.
(c) CONDITIONS FOR DEFERMENT.
' An officer may be deferred for not conforming to at-least any of the following reasons:
(i) If officer has not undergone the prescribed training (where applicable).
(ii) Non submission of ACRs by the concerned officer to his Reporting Officer(s).
(iii) Where the Board considers the record as incomplete, or wants to further watch the performance of the officer or for any other reason to be recorded in writing.
(iv) If disciplinary or departmental proceedings are pending against the Officer.
(v) If the Officer is on 'deputation abroad to a foreign government, private organization or international agency,
(vi) Where the inter se seniority of the Office is subjudice.
(vii) In case an officer is deferred from promotion but subsequently approved for promotion, the officer will regain his/her seniority with his/her original batch, however, date of promotion will remain the same on which officer was ,actually promOted.
6 Development of Comprehensive Efficiency Index for promotion/deferment/supersession:
(a) The minimum threshold marks of Efficiency for ,promotion to various scales/posts are prescribed as under:--- Basic ScaleAggregate Marks of efficiency index For promotion from BS-17 to BS-18 50 For promotion from BS-18 to BS-19 60 For promotion from BS-19 to BS-20 70 For promotion from CEs/DGs/Equivalent officers to the positions of GMs.75 For promotion from BS-18 to BS-19 ' All ACR.s earned in previous and present grade i,e, in BS-17 and BS-18 will be quantified. For officers directly recruited in BS-18, all ACRs earned in BS-18 will be quantified.
For promotion from BS-18 to BS-19:
(a) Training Evaluation Score will be calculated out of 15 marks. Nine (9) marks for Management DevelopmentfMiddle/Mid Career Management Course and six (6) marks for Basic/Junior Management Course/Sector Specific Trainingse where mandatory.
8.The policy regarding assigning marks per ability, capability, deficiency adverse entries in service record are laid down as under:--
(a) Major penalty (Reduction to lower,port,/time scale/Lower stage in time 5 marks scale
(b) Minor Penalty (i)Censure1-1/2 marks (ii)Recovery due to negligence breach of orders other than fraud or embezzlement 2 marks (iii)Recovery due to fraud or embezzlement etc. 3 marks (iv)Withholding promotion or increment 3 marks (c)For adverse remarks ( deductions be made for such remarks only as were duly conveyed CR containing to the concerned Officer and where not expunged adverse on his representation or the Officer did not remarks represent1/2 marks per(sic)
(3)For securing less than 45% marks i.e. minimum passing score in any mandatory training3 marks
9. Petitioner was considered for promotion but was deferred, superceded and declared unfit during the period of 2007 to 2009 by the B Selection Board meeting for promotion/upgradation. The table of the said period is as under:--- {{TABLE}} Sr.
No.Date of promo- tion/upgradation BoardGraded marksDeductionNet marksMarks required for PromotionDecision of the Board
1. 2007 66.6 9.5 57.1 60 Deferred 2.17-7-2008 66.7 8 58.7 60 Superseded 3.7-3-2009 67.3 8 59.3 60 Unfit {{TABLE}}
10. The detail table and reasons argued by. The respondents are as under:---
(a) Since ACR record of the officer was not complete. His ACRs for the years 2003 and 2004 were pending for which letters were also sent as mentioned in para-3 above. He was considered by the Selection Board and he was deferred for promotion.
(b) The officer was considered by the Selection Board during its meeting held on 17-7-2008 but did not achieve minimum threshold score for promotion, therefore, he was superseded.
(c) The officer was once again considered by the Selection Boar (' during its meeting held. On 7-3- 2009 but he did not achive minimum threshold score, therefore, he was not recommended fit for promotion and superseded.
(d) That the main reason of fewer thresholds (graded marks) is that the officer during entire service from 1978 to 2009 has mostly been graded as "Good to Average".
' Hence, on the aforementioned reasons, petitioner was deprived from promotion.
11. The first meeting held in 2007 out of graded marks 9.5 marks were deducted on the following ground:--- (i)less recovery --2 marks deducted (ii)Stoppage of increment for one year without further effect--deducted 1.5 mark (iii)censure on the basis of office order dated 21-9-2006 --deducted 1.5 mark.
(iv)censurevideletterNo.6720-26dated4-10-2007 --1.5 mark deducted, (v)censurevideletterNo.8358-61dated 13-8-2008 --1.5 mark deducted
12. The petitioner was deferred in 2007 on the ground that the said deduction of marks and non- production of ACRs for the year 2003-2004. It is also on record that penalty imposed vide order dated (sic)112-2-2002 through which increment for one year was withheld/ stopped but same penalty was set aside in 2008 on acceptance of appeal of petitioner, even then 3 marks were deducted. On the basis of censure 4.5 marks were also deducted.
13. Petitioner was graded marks with 66.6, 66.7 and 67.3 by the Promotion/Up-gradation Board in the years 2007, 2008 and 2009 respectively, however, he refuted the deductions allegedly made by respondents which have been shown as 9.5, 8 and 8 during the years 2007, 2008 and 2009 respectively, the details of which have been fully mentioned in Annexure-B. According to petitioner 2 marks were deducted on account of imposition of minor penalty inflicted in the year 2002, thus illegally accounted for in the years 2007, 2008 and 2009. If the imposition of penalty in the year 2002 be account for even then in the year 2007 the aggregate of deductions comes to five or even if the penalty imposed in the year 2006, which was set aside in the year 2008, be taken into account, the aggregate comes to 6.1, as the fourth penalty imposed on 4-10-2007 was inflicted later in time in the year 2007 because the promotion committee meeting was held in that particular year in the month of March/April, 2007. Thus the net marks of petitioner secured in the year 2007 comes to 62,1 i,e, more than the marks required for promotion i,e,
60. Further in the year 2007 respondents deducted 08 marks whereas only 6.5 marks were to be deducted, thus the secured / net marks comes to 60.2 whereas the required marks for promotion was 60. Apart from the above, in the year 2009, 8 marks were deducted by the respondents whereas according to law at the most 06 marks may be deducted, thus leaving the net secured marks 61.3 which are over and the required marks for promotion.
14. Mere censure and minor penalty is not a hurdle in the way ,of petitioner. In this ,respect reference is made to case reported as "Abdul Majeed v. Government of Pakistan and others (2006 SCMR 1415), wherein it was held as under:--- "Censure is minor penalty, a sort of warning which may not have a serious stigma affecting the service career of a person and in any case the single penalty of censure cannot be considered sufficient for invoking the provisions of S.13(1)(i) of Civil Servants Act, 1973".
15. The performance of an individual could not be assessed only on the basis of. ACRs, even adverse remarks of ACRs not communicated to the employee are ineffective and not, to be considered at the time of promotion. Reliance is placed on Fida Hussain Javed and 3 others v.
Director rood, Punjab 'and others (2004 SCMR 62), wherein it was held:---- "The contention of the learned Advocate Supreme Court on behalf of petitioner that their performance could only 'be assessed on the basis of ACR is not correct as a serious case of embezzlement of huge misappropriation of wheat was also got registered against the petitioners which' aspect of the matter could have been taken into consideration by the competent authority."
16. The consideration for promotion would mean just and fair consideration and not as a matter of routine. Reliance is placed on Muhammad Afzal Khan v. Government of Punjab and others (2009 PLC (C.S.) 40), wherein it was held:--- "Consideration for promotion would mean a just and fair consideration and not as a matter of routine. High. Court directed authority to place petitioner's case before Selection Board within specified time, which would consider his case fairly, justly and independent of pendency of enquiry, if not finalized on day of consideration of his case for promotion."
17. As mentioned above, the marks have illegally and wrongly been deducted, which caused out of turn promotion to the junior to petitioner. Out of turn promotion granted to juniors by ignoring the seniority would be illegal and mala fide and reliance is placed on Hammad Raza Qureshi v.
Departmental Promotion Committee, Punjab Lahore etc. (2008 PLC (C.S.) 551), wherein it was held as under:--- "Out of turn promotion granted to juniors by ignoring the seniority of seniors would be illegal and mala fide. High Court setting aside such out of turn promotion by accepting the writ petition of senior and directing departmental promotion committee to hold a fresh meeting for promotion according to the seniority. "
18. In the case of petitioner penalty imposed was later on set aside, hence, 3 marks deducted have no nexus in case of petitioner. Further no one can be vexed twice for ,same cause. It was held in the case of Muhammad Saifullah v. Chief Secretary, Government of Sindh and 2 others (1985 PLC (C.S.)
1108) :--- "Successor-in-office deciding 'to proceed afresh, cancelling acquittal order, subjecting accused to fresh enquiry and passing order of minor penalty-Held, (1) action of successor was violative of principle of natural justice that no one can be vexed twice for same cause (ii) successor had no powers of review or revision and could not cancel acquittal order passed by his predecessor."
19. Petitioner in the light of above, has wrongly been superceded by ignoring the criteria laid down for promotion, which is void ab initio. The promotion of employee to a higher post is a matter of legal right and petitioner is found entitled for award of up-gradation and promotion from the date when his very first junior was promoted. Reliance is placed on Maj. Ziaul Hassan v. MRs, Naseem Chaudhry (2000 SCMR 645) wherein it was held:- Promotion-Supreme Court had found that civil servant had not been promoted by superseding any officer senior to her; she was entitled to be promoted from the date her juniors were promoted and there was no valid reason not to consider her for the promotion. Mere fact that some disciplinary proceedings were pending against the civil servant was not a sufficient ground to disregard the order passed by the Supreme Court".
20. In case of Javed Hussain Shah v. Government of the Punjab and others reported as 2005 PLC (C.
S.) 974, it was held that" High Court had ample powers to give direction to public functionaries to act in accordance with law in spite of the bar contained in Art. 212 of the. Constitution read with S.4 of Service Tribunals Act, 1973, and action based on malice was required to be struck down--- Constitutional petition before High Court was maintained in circumstances". Further the August Supreme Court in the case of "Pakistan International Airlines Corporation (PIAC) through Chairman and others v. Nasir Jamal Malik and others" reported as 2001 SCMR 934, it was held as under:--- "Maxim "audi alteram partem"---Applicability---Employer, who itself had framed Rules as well as Regulations for its domestic purposes, was bound to strictly follow/adhere to the same--- Deviation from such Rules and Regulations is bound to violate principles of natural justice enshrined in the maxim "audi alteram partem" i,e, no one is to be condemned unheard---Where adverse action is being contemplated to be taken against the person/persons, he/they would have at least right to defend such action."
21. PEPCO/PESCO are substantially owned, controlled, managed and financed by the Government of Pakistan and performing functions with regard to the affairs of the Federation i,e, the Generation, Formation, Distribution and Supply of Electricity and even otherwise on the strength of Constitutional Guarantees enshrined in the Constitution, as a Fundamental Rights i,e, the right, to be dealt with in accordance with law and the equal protection of law as stipulated in Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, the writ petition is maintainable. Respondents have violated the Promotion Policy as well as the rules governing the subject-matter. Further, respondents have adopted the Promotion Policy of the Establishment Division Government of Pakistan, therefore, writ can be issued.
22. The crux of the case is that admittedly, petitioner being qualified and eligible joined WAPDA on 2-2-1978 as Junior Engineer Electrical, on open merit basis, was promoted and is working as DMG/Xen in PESCO under the administrative control of PEPCO. A number of Xen/Senior Engineers were promoted to the post of Superintending Engineer in 2007, 2008 and 2009. Although the petitioner was served with various show because notices and minor penalties were awarded time and again such minor penalties do not create hurdle in the way of petitioner for the purpose of promotion/up-gradation. The petitioner seems to be senior most and qualified having completed all codal formalities and requirements mandatory for promotion but respondents have illegally and unlawfully did not consider him from the purpose of upgradation/promotion, which act amount to discrimination.
23. In the light of the above, this petition is allowed and respondents are directed to consider the petitioner for the purpose of upgradation/promotions from the date when first junior respondent No,5 was promoted with all back-benefits.