' ALI BAQAR NAJAFI, J.--- The petitioner, through this writ petition, seeks direction to the respondents to decide appeal of the petitioner under Rule FR 17 as per his seniority list prepared in May, 2012 for ante-dated promotion in BS-21 without further loss of time in the light of the precedents quoted with further direction respondents Nos.1 to 3 to convene the meeting of Special High Powered Board to consider the promotion of the petitioner in BS-22, as he qualifies for all other conditions of Rule 4 of Promotion Rules, 2010.
2. Briefly the facts relevant for the disposal of this writ petition are that the petitioner has joined the police service as ASP in 4th Common, in the year 1977, where after he acquired/good record for serving at various posts. In February, 2007 to October, 2008 he remained Officer on Special Duty without any complaint and during this period his ACRs remarks incomplete without his fault whereby he was deprived of his valuable rights when his promotion in the next grade was hampered. Meanwhile his other colleagues were promoted to BS-21 in the year 2009. On 1-2-2011 a seniority list was issued wherein the petitioner was mentioned at serial No,5 but on 26-4-2012 in the second seniority list he was placed at serial No,
1. Meanwhile, vide clause-B of paragraph-4 of the working papers of FR 17 Committee was constituted for consideration of antedated promotion of the petitioner from BS-20 to BS-21 but the case of the petitioner was deferred on the ground of incomplete record allegedly on the part of the petitioner. An appeal was preferred before the Secretary Establishment, Government of Pakistan which is still pending without any progress, hence this writ petition.
3. The learned counsel for the petitioner submits that vide Rule 2.87 of A Guide to Performance Evaluation Report, the reports of the Officers on Special Duty who have been assigned any job, are to be written in the normal manner which benefit was not extended to the petitioner; that under section 9(2)(a) of the Civil Servants Act, 1973; admittedly, the petitioner is entitled to promotion; Rule 4 of Promotion Rules, 2010, is ultra vires of the Civil Servants Act, 1973 and Article 25 the Constitution of Islamic Republic of Pakistan, 1973; that the august Supreme Court of Pakistan has encouraged the promotion on merits in suo motu case reported as TARIQ AZIZ-UD-DIN and others (2010 SCM R 1301); that the case of the petitioner is at par with his colleagues who have been granted ante dated promotion by the respondents under FR 17; that it is also an established principle of law that deferment does not deprive a government servant from his right from grant of promotion to the next higher grade with effect from the date his juniors were promoted; that in view of the law laid down in Mirza Shamas ul Hasan v. Secretary Establishment and others passed in Writ Petition No,64 of 2007 vide order dated 13-10-2008 the supersession of government official on the basis of intelligence reports was held to be against law and as such promotion on the basis of seniority list was held to be the vested right of the petitioner; that the Writ Petition No,10825 of 2012 challenging vires of the rules on the similar issue is pending at Principal Seat. He prays for decision on appeal of the petitioner after suspension of Rule-4 of Promotion Rules, 2010.
4. Conversely, the learned standing counsel has vehemently opposed-the prayer made at the instance of the petitioner by submitting that eligibility of the petitioner for promotion is a question of fact which can not be probed into under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973; that section 9 of Civil Servants Act, 1973 is applicable to the case of the petitioner in view of the law laid down in re: TARIQ AZIZ-UD-DIN and others (2010 SCM R 1301); and that the petitioner is not qualified for promotion as prayed for.
5. I have heard the learned counsel for the parties and perused the record.
6. Admittedly, petitioner has an unblemished record of service with honesty, efficiency and compatibility. Non-availability of the record for promotion including ACRs by the Department was obviously not the fault of the petitioner for which he could not be made to suffer as recently held in SECRETARY SCHOOLS OF EDUCATION and others A v. Rana ARSHAD KHAN and others (2012 SCMR 12).
Rule 2.87 ibid is attracted as admittedly the petitioner is now at No,1 vide seniority list circulated on 26-4-2012 and has a fair chance of being promoted on the basis of FR 17 ibid. Even otherwise, Hon'ble Supreme Court of Pakistan in its wisdom always encouraged the promotion on merits, especially from Grade-21-22, which obviously will also be endeavour of the respondent- department. Reliance in this behalf can be placed upon in re: TARIQ AZIZ-UD-DIN and others (2010 SCM R 1301). In my humble view the condition of three years service, working in Grade-21, for promotion in Grade-22 becomes open to exception, if not followed in other similar cases. Right of a Civil Servant as contemplated under section 9 of Civil Servants Act, 1973 was neither illusory nor a perfunctory ritual and with-holding of promotion of any officer was a major penalty in accordance with Government Servants (E&D) Rules, 1973. To be considered for promotion is a vested right of the petitioner which is to be based on seniority cum fitness and the best assessment of such tangible material can at all be made by the competent authority.
7. Since the petitioner is approaching his superannuation and his appeal agitating all his grievances is pending before respondent No,1/Secretary Establishment Division since December 2011, therefore, he is directed to decide the same in accordance with law, rules, policy and the precedents/guidelines of the apex Court applicable to the case of the petitioner, expeditiously and preferably within a period of fortnight from the receipt of copy of this order, under intimation to the Deputy Registrar (Judicial) of this Court. With the above observations/directions this writ petition is disposed of.