' ABID AZIZ SHEIKH, J. --- Through this Constitutional petition, the petitioner is seeking declaration to the effect that he is entitled for promotion from BS-17 to BS-18 w.e.f.
13.11.2007 when his case was duly recommended by the Provincial Selection Committee and therefore, respondent No. 2 be directed to issue his promotion orders accordingly.
2. Brief facts are that petitioner was appointed as ,.LCS Chief Officer in BS-11 on 03.5.1971 in Multan Division and subsequently promoted as Lcs Chief Officer in BS-16 on 27.6.1990 and was regularized in BS-17 vide order dated 6.5.2003. The case of the petitioner alongwith other officers for promotion in BS-18 was considered in the meeting held by the Provincial Selection Committee (PSC) on 13.11.2007. Despite the fact that petitioner was duly recommended by the PSC for promotion, the meeting of Punjab Local Government Board (Board) was not convened to implement PSC recommendations and in meanwhile, petitioner stood retired from service on 14.12.2007. The grievance of the petitioner is that Board meeting was intentionally delayed and just after four days of his retirement, meeting of Board was held on 18.12.2007, in which his juniors were promoted and petitioner not considered for promotion in BS-18 on the sole ground that he already stood retired.
3. Learned counsel for the petitioner argued that the petitioner was due for promotion in BS-18 in year 2005 and at that time vacancy was also available but his case for promotion was intentionally delayed; submits that finally in the meeting of PSC held on 13.11.2007, the petitioner was recommended for promotion in BS-18, but Board meeting to implement PSC recommendation was deliberately delayed till his retirement; submits that just after 04 days of his retirement, the Board meeting was held on 18.12.2007 in which his juniors were promoted and petitioner case for promotion was not considered on the ground that he stood retired; submits that petitioner is entitled for promotion from the date when his name was recommended by PSC for promotion to the post of BS-18 and mere fact that petitioner stood retired from service could not be a ground to ignore petitioner and promote his juniors; that petitioner can still be granted anti dated promotion in BS-18 after retirement; that act of the respondent is also discriminatory as in similar situation, promotion was granted to other Local Government employees after retirement. On question of maintainability argued that petitioner being not a civil servant, this constitutional petition is maintainable.
4. Conversely, learned counsel for the respondents raised preliminary objection that in view of Section 44 of the Punjab Local Government Ordinance, 1979, members of Local. Council Service were given the status of Civil Servants, therefore, petitioner being a civil servant has remedy before the Punjab Service Tribunal; that the petitioner approached this Court after more than three years of his retirement as well as decision of Board, therefore, this Constitutional petition is hit by laches.
On merits, argued that case of the petitioner for promotion was though recommended by PSC on 13.11.2007 however Board in its meeting dated 18.12.2007 had lawfully held that as the petitioner already stood retired on 14.12.2007, his case cannot be considered for promotion; that under Sub- Rule 3 of Rule 6 of Punjab Local Government (Appointment and Condition of Service) Rules, 1983, promotion including proforma promotion cannot be claimed as of right; that petition being devoid of merits is liable to be dismissed.
5. I have heard the arguments of learned counsel for the parties and gone through the record.
6. Before touching merits of the case, I would like to dilate upon the question of maintainability of this petition. There is no dispute that petitioner being an employee of Punjab Local Government Board, his services were governed under "Punjab Local Council Service (Appointment & Condition of Service) Rules, 1983 (Rules 1983). No doubt under Section 44 of the Punjab Local Government Ordinance, 1979 (Ordinance, 1979), Members of Local Council Service were given status of Civil Servants for the purpose of Service Tribunal Act, 1974. However, the Ordinance, 1979, was repealed by the Punjab Local Government Ordinance XIII of 2001 (Ordinance, 2001) and Ordinance, 2001 was also repealed by the Punjab Local Government Act, 2013 (Act 2013). In Ordinance 2001 and Act, 2013, there is no provision similar to provision of Section 44 of the Ordinance, 1979. The special status of Civil Servant given to employees of Local Councils in Ordinance, 1979 was not retained in the Ordinance, 2001 and Act of 2013, therefore, the petitioner cannot be treated as Civil Servant for the purpose of Service Tribunal Act, 1974. The similar legal question also came up before the learned Punjab Service Tribunal in the case of Aftab Gulzar, etc. v. Chairman Punjab Local Government Board, Lahore and two others (PLJ 2005 Tr.C. (Service) 98) whereof learned Tribunal declined to entertain petition on the ground that employees of local councils, are not Civil Servant. The learned Tribunal's judgment attained finality as against the said judgment, the appeal was dismissed by august Supreme Court in Civil Appeals No. 297, 298 and 1493/2006 vide order dated 28.9.2009 in the light of Mubeen-us-Salam case. In view of above discussion, the preliminary objection raised by learned counsel for the respondents is over-ruled.
7. Now coming to the merits of the case, admittedly, petitioner case for promotion in BS-18 was duly recommended by PSC on 13.11.2007, however, formal Board meeting was convened on 18.12.2007 just after four days of his retirement on 14.12.2007. In said meeting, petitioner case for promotion in BS-18 was not considered due to his retirement and instead his juniors were promoted. The petitioner also averred in para 5 of the petition that his promotion to BS-18 was due in 2005 as vacancies in BS-18 were available but he was not considered for promotion. The aforesaid assertion is not specifically denied by the respondents in their parawise comments. In the given circumstances, the moot question is that once the petitioner, was due for promotion since 2005 and was also recommended by PSC for promotion in BS-18, could the Board refuse to consider his case for promotion, and instead promote juniors just because Board did not convene its meeting before petitioners retirement. To answer this question, it will be convenient to examine Rule, 1983 under which petitioners services were governed. Close scrutiny of Rules, 1983, shows that unlike Section 8(5) of the Punjab Civil Servant Act, 1974, there is no specific provision which precludes or debars the Board to consider the case of the petitioner for promotion after his retirement. There is no cavil with the settled law that promotion including proforma promotion cannot be claimed as of right, however, to be considered for promotion by the Board especially once petitioner was duly recommended by the PSC was the legitimate vested right of the petitioner. The petitioner was due for his promotion since 2005 and when finally recommended by PSC on 13.11.2007 for promotion in BS-18, could not be made to suffer merely on account of departmental lapse of holding Board meeting not earlier but after four days of his retirement. The above act of the respondent department has not only deprived the petitioner of his vested right to be considered for promotion but it has also caused him permanent loss of pensionary benefit of higher grade.
8. The august Supreme of Pakistan in similar situation, while granting promotion to retire Civil Servant, in case titled Secretary School of Education and others v. Rana Arshad Khan and others (2012 SCMR 126) held as under:-"we find that it has not been disputed before this Court that much before the retirement of the respondents, a working paper was prepared by the department with regard to their promotion but the matter was delayed without any justifiable reason and in the meanwhile respondents attained the age of superannuation. They cannot be made to suffer on account of the departmental lapse". In Dr. Syed Sabir Ali v. Government of the Punjab through Secretary, Health Punjab and others (2008 SCMR 1535), appellant already stood retired, however, the august Supreme Court directed that case of the appellant be considered for proforma promotion as legitimate rights were accrued in his favour. In Federation of Pakistan and others v.
Amir Zaman Shinwari, Superintendenting Engineer (2008 SCMR 1138) appellant attained age of superannuation, however, august Supreme Court directed respondent department to implement Federal Service Tribunal order for promotion and emoluments be released. In this context, reliance is also placed on Mrs. Naseem M. Qadri v. Federation of Pakistan (2009 PLC (CS) 229), Raja Muhammad Naseem Khan v. Azad Jamu and Kashmir Govt. Through Chief Secretary, etc. (2010 PLC
(CS) 439), Muhammad Hussain v. Secretary to Govt. Of the Punjab S&GAD, Lahore and three others (PLJ 2006 Tr.C. (Service) 82), Abdul Qayyum Mirza v. Director General, Federal Directorate of Education, Islamabad (2008 PLC (CS) 173), Federation of Pakistan v. Afzal Muhammad Farooq (2005 PLC (C.S) 1424), Dr. Muhammad Amjad v. Dr. Israr Ahmed (2010 SCMR 1466).
9. The case-law relied upon by the respondent i.e. Government of Pakistan through Establishment Division, Islamabad v. Hameed Akhtar Niazi, Academy of Administrative Training, Walton, Lahore (2003 PLC (C.S) 212) which was also, followed by august Supreme Court in Muhammad As/am Sukan v. Federation of Pakistan through General Manager, Pakistan Railways, HQRS, Lahore (2006 SCMR 1465) is not applicable to the facts and circumstances of the petitioner case. In the said case, issue was regarding promotion against selection post which was not placed before Central Selection Board. The august Supreme Court held that promotion against selection post is based on merits and Tribunal not competent to grant promotion against selection post from back date on the basis of improved seniority. In the present case, the facts are distinguishable as the petitioner is not a civil servant but employee of Board governed under Rule, 1983 and further his case was also recommended by PSC.
10. So far as the question of Iaches is concerned, the record shows that petitioner is pursuing his case for promotion diligently and has also filed written representation dated 09.6.2010. The respondent who were required to act justly, fairly and in accordance with law, have neither redressed the grievance of the petitioner nor even decided his written representation, consequently petitioner approached this Court in a Constitutional jurisdiction, hence this petition is not hit by Iaches.
11. The petitioner has also produced notifications dated 16.8.2002, 18.10.2002 and 22.5.2003, issued by Board under which proforma promotion was allowed to other retire LCS officers, therefore, the petitioner also successfully makes out a case of discrimination against him in violation of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973.
12. The upshot of the above discussion is that this petition is allowed and respondents are directed to consider the petitioner in Board meeting for promotion in BS-18. As the petitioner has already stood retired, therefore, his promotion will not affect the seniority of any person already in the service and he would be entitled to his emoluments and pensionary benefits.