' In the instant writ petition, the petitioner being a civil servant has challenged the vires of Sub-Rule
(IV) of Rule 9 of the Promotion Policy, 2010 and decision of Provincial Selection Board with respect to the deferment of the petitioner for promotion as same being UnIslamic, Un-Constitutional, discriminatory and against the fundamental rights of the petitioner.
2. The question of law to be determined by this Court is reproduced is under: "Whether promotion of the civil servant could be deferred which he otherwise entitled to, on a sole ground that a case or inquiry is pending against him hi which he is yet to be proven guilty?
3. Brief facts of the case are that the petitioner was appointed on 07.04.1984 as Assistant Registrar (BS-16) through Punjab Public Service Commission.
4. The promotion of the petitioner in BS-19 has been due since 04.12.2011 on the retirement of one Fayyaz-ul-Hassan Farooqi senior to him. However, he has not been promoted since that date.
5. On 1.3.2012, vide Notification No. SO(E)7-3/96(P-III), a final seniority list was issued by the Secretary Co-Operatives whereby, the petitioner was placed at Serial No. 1 and Respondents No. 4 to 7 were placed at Serial Nos. 2, 3, 4 and 5 respectively.
6. On 24.07.2012, meeting of the Provincial Selection Board-I was held whereby, Respondents No. 4 to 7 were promoted to BS-19 and the promotion of the petitioner was deferred.
7. Leaned counsel for the petitioner contends that the promotion of the petitioner was deferred, which he otherwise is entitled to, as per the impugned rule. Further submits that the petitioner has a spotless career and is at verge of his retirement. Till today, not an FIR as well as not a single inquiry has been registered and initiated against him; hence his deferment is raising questions on his creditability and unblemished career, that requires kind interference by this Hon`ble Court.
Reliance is placed on Captain Sarfraz Ahmdd Mufti vs. Government of the Punjab and others (1991 SCMR 163), Maj Ziaul Hassan, Home Secretary and others vs. Mrs. Naseem Chaudhry (2000 SCMR 645), Sh. Muhammad Riaz vs. Government of Punjab [(2003 PLC (CS) 1496] and Muhammad Afzal Khan vs. Government of Punjab through Secretary to Government of the Punjab, C&W Department and another [(2009 PLC (CS) 40)1.
8. Report and parawise comments were filed by the respondents. One of the preliminary objections was that the matter relates with the terms and conditions of promotion and the petitioner has not availed his remedy by way of filing appeal before the Punjab Service Tribunal, hence Constitutional petition is not maintainable.
9. On facts, Respondents No. 1 & 2 also controverted the prayer made by the petitioner by contending that the promotion case of the petitioner was placed before the Punjab Selection Board, but the Board deferred the same due to the reason that an FIR No. 18/2010 Police Station Anti-Corruption Establishment, Multan is pending against the petitioner, and the petition is hit by the Promotion Policy of 2010. However, a post in BS-19 has been reserved for the petitioner, subject to his exoneration from the above said case and will be granted promotion from the date when his juniors were promoted.
10. I have given anxious consideration to the arguments advance by learned counsel for the petitioner and the learned AAG, Punjab.
11. Before arriving at a conclusion that the Policy under challenge is sustainable under the law or not, it will be proper to understand spirit of Article 8 of the Constitution of Pakistan 1973; which is re- produced herein under:-- "8. Laws inconsistent with or in derogation of Fundamental Rights to be void.--(1) Any law, or any custom or usage having the force of law, insofar as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void."
12. Admittedly in the constitution, the Superior Courts have been mandated to ascertain either any law is inconsistent with the rights conferred by the Constitution i.e. Fundamental Rights. In Tariq Cotton Mills Ltd. And another vs. Joint Registrar, Joint Stock Companies and another (1989 CLC 2013), it is held that the State is prohibited to make any law which curtails or take away any Fundamental Right and any law so made shall to the extent of inconsistency with such right, is to be void. The same principal of law has been enunciated in Sharaf Faridi vs. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another (PLD 1989 Karachi 404), it was held that limitation has been placed on the Legislature not to curtail the Fundamental Rights or abridge them by any law.
13. Question of law raised by the petitioner is answered in following terms:-
(i) Any judgment passed by the Hon`ble Supreme Court of Pakistan, in which a question of law has been determined, is binding on all the Courts subordinate to the Apex Court, as contemplated in Article 189 of the Constitution of Islamic Republic of Pakistan, 1973.
(ii) The petition in hand has been filed on the touch stone of above quoted judgments of the Hon'ble Supreme Court of Pakistan.
(iii) In the case of Maj Zail-ul-Hassan, Home Secretary vs. Mrs. Naseem Ch. (2000 SCMR 645), the Hon'ble Supreme Court has held that: "We are afraid that the mere fact that some dis..,plinary proceedings are pending against the respondent is not a sufficient ground to disregard the Order passed by this Court. However, we may clarify that promotion as DSP will not debar the petitioner to continue with the disciplinary proceedings against the respondent if any, justly, fairly and in accordance with law."
(iv) In case titled as Captain Sarfraz Ahmad Mufti vs. Government of Punjab & others ((sic) SCMR 1637) the Hon'ble Supreme Court upheld judgment of the High Court in which the High Court had directed departmental authorities that case of civil servant be placed before Promotion Board. The High Court had referred to certain Policy letters of the Government under which respondent civil servant's case for promotion merited consideration, but he was illegally ignored.
(v) In the same manner, in case of Sh. Muhammad Riaz. Vs. Govt. Of Punjab through Secretary Communication and Works and another [(2003 PLC (C.S) 1496)] it was held that "withholding of promotion is a penalty and therefore refused to issue a formal notification of the promotion of the petitioner, after he had been recommended by the Provincial Selection Board, which was duly approved by the Competent Authority, was illegal and arbitrary in as much as that it was withheld on the ground of an anticipated departmental inquiry.
14. A principle of law has been enunciated by the Superior Courts. The nutshell of the same is that a civil servant against whom a A departmental inquiry or criminal proceedings are pending is not an outcast for the purpose of consideration of his case for promotion and there is no bar on his promotion.
15. The above quoted judgments, in which question of law has been settled, have attained finality and force of law. Any policy of the 0 Government including the Promotion Policy 2002 of the Government of the Punjab cannot come in its way and has become redundant.
16. For what has been discussed above, the instant writ petition is allowed. Sub Rule (iv) of Rule 9 of the Promotion Policy, 2002 of the Government of Punjab is hereby declared Un Constitutional, against the spirit of Article 8 of the Constitution and against the principles of law enunciated by the Hon'ble Superior Courts of Pakistan. The respondent Department is directed to place the case of the petitioner to the Provincial Promotion Board and his case may' e considered for proportion within a period of 30 days.