ABDUS SATTAR ASGHAR, J. --- Petitioner has invoked the Constitutional jurisdiction of this Court under Article 199 to impugn the Order dated 26.3.2011 passed by the Chief Secretary, Government of the Punjab/respondent No. 1 whereby his representation for pro forma promotion to the post of Senior Chief Instructor (BS-20) w.e.f. 30.7.2008 was rejected.
2. Brief facts necessary for disposal of this Constitutional that the petitioner is presently serving as Principal, Government College of Commerce, Qasimpur Colony Multan. He joined the Education Department (Technical Education Wing) Government of Punjab as Instructor (BS-17). In due course of time his promotion from BS-19 to BS-20 as Senior Chief Instructor was deferred vide Order dated 30.7.2008 merely on the ground that in an inquiry he was awarded minor penalty of 'Censure'. The Provincial Selection Board in its meeting held on 30.7.2008 while deferring his case also opined that minor penalty was not commensurate with the gravity of the charge. Later on he was promoted to BS-20. Consequently petitioner lodged applications to the Chairman TEVTA/the Authority seeking pro forma promotion in BS-20 w.e.f. 30.7.2008, the date when his junior was promoted as such. His applications were declined. Feeling aggrieved petitioner lodged representation. Before the Chief Secretary, Government of the Punjab which remained pending without any process. Petitioner therefore filed Writ Petition No. 485/2011 before this Court which was disposed of vide order dated 18.1.2011 in the following manner:- "2, Respondent No. 3 is directed to decide the petitioner 's application strictly in accordance with law, within two months, after providing him an opportunity of hearing,
3. Compliance report be sent to this Court through its Deputy Registrar (Judicial)."
3. Pursuant to the above direction of this Court the Chief Secretary, Government of the Punjab/respondent No. 1 after providing opportunity of hearing to the parties rejected he petitioner's representation vide order dated 26.3.2011 which has been assailed through this Constitutional petition.
4. It is argued by learned counsel for the petitioner that a penalty of 'Censure' in an inquiry was imposed upon the petitioner by the competent authority; that the Provincial Selection Board-I in its meeting held on 30.7.2008 had no authority to hold that imposition of minor penalty of 'Censure' was not commensurate with the gravity of the charge (underlined are mine). He added that petitioner's case for promotion in BS-20 was deferred in 2008 in an arbitrary manner therefore he is entitled to the pro forma promotion w.e.f. 30.7.2008, the date when his junior was promoted as such; that the impugned order passed by the Chairman TEVTA on his applications for pro forma promotion as well as impugned order passed by respondent No. 1 rejecting his representation are against law and facts, without any law authority, of no legal effect and liable to set aside.
5. On the other hand learned Law Officer contends that the matter pertains to terms and conditions of service therefore facing bar under Article 12 of the Constitution of Islamic Republic of Pakistan, 1973 this Constitutional petition under Article 199 is not maintainable. He added that nobody has got vested right to claim promotion; that on account of Imposition of penalty of 'Censure' upon the petitioner in an inquiry he was not entitled to the pro forma promotion and that the impugned order has been passed by the competent authority in accordance with law.
6. Arguments heard Record perused.
7. There is no cavil to the proposition that penalty of 'Censure imposed by the competent authority in result of the inquiry against the petitioner was never challenged before the department therefore observations of the Provincial Selection Board-I in its meeting held on 30.7.2008 that the minor penalty of 'Censure' was not commensurate with the gravity of the charge, were illegal and without lawful authority. Obviously deferment of the petitioner's case for promotion on this score cannot sustain in the eye of law. Reliance is made upon Captain Sarfraz Ahmad Mufti v. Government of the Punjab and others (1991 SCM R 1637). The Hon'ble apex Court in the above cited case maintained the view of this Court that only minor penalties imposed upon the petitioner could not have posed a hurdle for consideration of his case for promotion by the Promotion Board. It was also observed that under the rules, on account of minor penalties, award of promotion to the respondent could not have been withheld.
8. As regard maintainability of this Constitutional petition pertaining to grievance regarding pro forma promotion suffice to say that since no right of appeal in such matters available to the petitioner therefore in the absence of an efficacious remedy a Constitutional petition under Article 199 is maintainable and not barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. It is evident on the record that the petitioner is striving hard any running pillar to post for the last about five years to get his case considered for pro forma promotion in its true perspective. There is no cavil to the proposition that petitioner's legitimate right of pro forma promotion cannot be declined merely on the ground that nobody has got vested right to claim promotion. Arguments of the learned Law Officer therefore are devoid of any force and repelled.
9. The Chief Secretary, Government of the Punjab in the impugned order dated 26.3.2011 has also referred an extract of the pro forma policy dated 19.4.2003 which is as under:- "The official is under suspension or is facing a departmental enquiry and therefore, his promotion is deferred. If eventually he is exonerated of the charges, he becomes entitled for proforma promotion from the date on which he would otherwise have been promoted."
Bare reading of the afore-quoted extract transpires that it does not contemplate that imposition of minor penalty is a hurdle for consideration of promotion. Needless to say that decision of the Hon'ble Supreme Court enunciating a principle of law is binding on all other Courts in Pakistan in terms of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973.
10. For all above this Constitutional petition is accepted, the impugned orders passed by respondent No. 1 and Chairman TEVTA are set aside with the direction that the petitioner's case for pro forma promotion be deemed pending before the competent authority for a decision afresh in accordance with law in the light of observations made hereinabove. Keeping in view that the matter is old one the competent authority is directed to ensure that the same Is decided expeditiously preferably within a period of three months. .