' SHUJAAT ALI KHAN, J. --- By way of this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged Office Order dated 8.12.2012 passed by Director, Administration, LDA, Lahore (respondent No. 2).
2. Tersely, the facts, necessary for the disposal of instant petition, are that the petitioner was working as Assistant (BS-14) Lahore Development Authority when he opted to proceed on Leave Preparatory to Retirement (L.P.R.) for one year. During the period of LPR his case was considered for promotion to the post of Staff Officer (BS-16) by the Departmental Promotion Committee (DPC).
Pursuant to the recommendation of DPC the petitioner was promoted as Staff Officer by the competent authority vide order dated 7.5.2012. On retirement the case of the petitioner for pensionary benefits was processed according to BS-16. However, the .Audit & Accounts Section raised objection to the effect that as per Promotion Policy, 2010, a civil servant during L.P.R. Could not be considered for promotion. Pursuant to the said objection raised by the Audit & Accounts Section respondent No. 2 vide impugned order dated 8.12.2012 withdrew the promotion of the petitioner as Staff Officer; hence this petition.
3. Learned counsel for the petitioner contends that the petitioner was promoted pursuant to the recommendations , of duly constituted Department Promotion Committee and respondent No. 2 had J authority to withdrew his promotion order; that the Departmental Promotion Committee can promote an employee but it is not vested with the power to demote anybody to a lower grade; that prior to the passing of the impugned order no notice was given to the petitioner, thus, he was condemned unheard; that according to prevalent rules, pensionary benefits of a government servant are to be determined according to his last drawn pay; that Promotion Policy, 2010, being violative of Section 8(5) of Punjab Civil Servants Act, 1974, is not tenable; that any government policy is subject to the judicial scrutiny and any act repugnant to the Constitutional Guarantee of the citizens can be adjudged by the Courts of law; that as the petitioner availed the benefits of BS- 16, his case is also covered under the principle of locus poenitentiae and that though the Hon'ble Supreme Court of Pakistan has directed all the departments to clear off the pensionary benefits of retired government servants within shortest possible time but the petitioner has not so far been released pensionary benefits which speaks volumes about the mala fide on the part of the respondents. In addition to his oral submissions, learned counsel has relied on cases reported as Government of Punjab through Secretary Education, Civil Secretariat, Lahore and others v.
Sameena Parveen and others (2009 SCMR 1), Federation of Pakistan through Secretary, Establishment Division, Islamabad and another v. Gohar Riaz (2007 PLC (C.S.) 727), Haji Muhammad Ismail Memon, Advocate (PLD 2007 SC 35), Khawaja Ahmad Hassaan v. Government of Punjab and others (2005 SCMR 186), Lahore Development Authority through D.G. Lahore and another v. Abdul Shafique and others (PLD 2007 SC 207), Hameed Akhtar Nazi v. The Secretary Establishment Division, Government of Pakistan and others (1996 SCMR 1185), Mrs. Anisa Rehman v.
P.I.A.C. And another (1994 SCMR 2232), Afifa Arshad v. D.E.O. And others (2007 PLC (C.S.) 640)
Magbool Elahi v. Province of Punjab and others (1997 PLC (C.S.) 1146).
4. Conversely, learned counsel for respondents while opening his arguments submits that this petition is not maintainable; that the promotion order in favour of the petitioner was withdrawn pursuant to the recommendations of Departmental Promotion Committee, therefore, he cannot challenge the order impugned in this petition on the ground that respondent No. 2 had no authority to withdraw his promotion order; that according to clause 21 of the Promotion Policy; 2010, no government servant can be promoted during the period he is on LPR; that the Promotion Policy, having its validity from the competent authority is not open to challenge before this Court in Constitutional jurisdiction and that the judgment of the august Supreme Court of Pakistan rendered in CPLA No. 1900-L of 2008 is not applicable to the instant case as the question involved in the said case was promotion of an employee on current charge basis which is not the position in the case in hand as the petitioner was promoted as Staff Officer (BS-16) on officiating basis only.
5. I have heard learned counsel for the parties at considerable length and have also gone through the documents annexed with this petition as well as those produced during the course of arguments in addition to the case-law cited at the bar.
6. Since the provisions of Punjab Civil Servants Act, 1974, and the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974 are applicable to the employees of the Lahore Development Authority and the policies are enunciated in consonance with the provisions of the said statutes/rules, therefore, any clause of the Promotion Policy repugnant to the basic statutes can be looked into by this Court in exercise of its Constitutional jurisdiction and no embargo can be put to curtail its extraordinary jurisdiction especially when the same does not commemorate with the provisions of the main statute. Further, the authority vested in a public functionary should be exercised reasonably while introducing policies for the masses and in case the same offends any provision of law or runs contrary to the vested rights of the citizens, the same cannot be considered as immune from interference by this Court. Reliance in this regard is placed on the cases reported as Muhammad Azhar Siddiqui and others v. Federation of Pakistan and others (PLD 2012 SC 774), Corruption in Hajj Arrangements In 2010 (PLD 2011 SC 963). In the latter case it has inter alia been held by the august Supreme Court of Pakistan as under:--- "Indisputably, if the action or decision is perverse or is such that no reasonable body of persons, properly informed; could come to or has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matters the Court would be justified in interfering with the same."
7. A bare perusal of the Promotion Policy, 2010, brings it to light that promotion of an employee of the authority shall be governed by the provisions of Section 8 of the Punjab Civil Servants Act, 1974.
According to Section 8(5) of the Act, only a retired civil servant has been excluded from the array of promotion or proforma promotion. Insofar as the case in hand is concerned, admittedly at the time of the passing of the order qua the promotion of the petitioner as Staff Officer (BS-16) no order regarding his retirement was in field rather he was on L.P.R., therefore, the exclusion clause contained in Section 8(5) ibid does not attract to the case of the petitioner. Now coming to clause 21 of the Promotion Policy, 2010, I am of the humble view that since the same runs contrary to the provisions of Section 8 of the Punjab Civil Servants Act, 1974, which was duly discussed under clause (3) under the heading of 'legal position', is not tenable.
8. The next question for determination by this Court is as to whether the case of the petitioner is covered under the principle of locus poenitentiae or not. In this regard, it is observed that subsequent to order of promotion of the petitioner on officiating basis a cheque amounting to Rs.
1,375/- was given to the petitioner being the amount of difference between BS-14 to BS-16 and the case of the petitioner for pensionary benefits was prepared according to BS-16 and the same was submitted to the relevant quarters. All this shows that that not only a valid order was passed in favour of the petitioner but the same was acted upon too. In this scenario case of the petitioner is totally covered under the principle of locus poenitentiae and respondent No. 2 has no power to withdraw his promotion order. Reliance in this regard is placed upon Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi (PLD 1969 SC 407) wherein the apex Court of the country has inter alia observed as under:- ' There can hardly be any dispute with the rule as laid down, in these cases that apart from the provisions of Section 21 of the General Clauses Act, locus poenitentiae, i.e., the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such a order cannot be withdrawn or rescinded to the detriment of those rights.
9. Another important aspect of the matter is that prior to passing the impugned order whereby the promotion of the petitioner as Staff Officer (BS-16) was withdrawn by respondent No. 2, admittedly no notice was given to the petitioner. In this state of affairs, the impugned order having been passed in violation of the universally acknowledged principle of audi alteram partem is not sustainable. If any case-law is required a reference can be made to the case of Muhammad Zaheer Khan v. Government of Pakistan through Secretary, Establishment and others (2010 SCMR 1554) wherein it has inter alia been observed as under:- ' the principle of audi alteram partem is to be read as a part of every statute, Rule or Regulation.
We have been looking for the history of the concept of audi alteram partem and could find no better analysis than the one provided, in its wider amplitude, by the Supreme Court of India in Tulsi Ram Patel's case AIR 1985 SC 1416, in fallowing words: If ' audi alteram partem rule, in its fullest amplitude means that a person against whom an order to his prejudice may be passed should be informed of the allegations and charges against him, be given an opportunity of submitting his explanation thereto, have the right to know the evidence, both oral or documentary, by which the matter is proposed to be decided against him, and to inspect the documents which are relied upon for the purpose of being used against him, to have the witnesses who are to give evidence against him examined in his presence and have the right to cross-examine them, and to lead his own evidence, both oral and documentary, in his defence ....
10. A bare reading of the order dated 3.3.2009 passed by the apex Court of the country in Civil Petition No. 1900-L/2008, being relied upon by the learned counsel for the petitioner, makes it clear that a government servant is entitled for pensionary benefits according to his last pay drawn at the time of retirement irrespective of the fact as to whether he was granted regular promotion or was placed in the said scale on current charge basis etc. The concluding paragraph of the said judgment read as follows:--- "5. In the afore-referred circumstances, the impugned judgment of the learned High Court directing the petitioner-authority to grant the respondent the pensionary benefits on the basis of last pay drawn at the time of retirement is neither arbitrary nor illegal. This being so we do not find any merit in this petition which is dismissed and leave refused."
11. Insofar as the objection raised by learned counsel for the respondents qua the maintainability of the instant petition is concerned, suffice it to observe that in the judgment of the Hon'ble Supreme Court of Pakistan, referred to in the preceding paragraph, not only the Constitutional petition in a similar matter was entertained by this Court but the order passed in was upheld by the apex Court of the country. Further, in view of the dictum laid down in the case of Lahore Development Authority through D.G. And another (Supra) Constitutional petition is maintainable.
12. It is pathetic state of affairs that not only under Section 18(4) of the Act the pension cannot be denied to a retired person beyond one month but in the matter of Haji Muhammad Ismael Memon (Supra), the Hon'ble Supreme Court has ruled that all government departments, agencies and officers deployed to serve general public within the limit by the Constitution as well as by the law should not cause unnecessary hurdle or delay in finalizing payment of pensionary/retirement benefit cases. According to Article 189 of Constitution of Islamic Republic of Pakistan, 1973, the verdict of the Hon'ble Supreme Court of Pakistan is binding on all organs of the State and the respondents are no exception. In these circumstances, the respondents cannot deprive the petitioner from pensionary benefits as the same is not a bounty rather indefeasible right of the petitioner.
13. For what has been discussed above, I consider it a fit case to exercise the jurisdiction vested under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, as the impugned order has been passed without affording opportunity of hearing to the petitioner. Consequently, this petition is accepted and the impugned order dated 8.12.2012 is set aside. Resultantly, order dated 7.5.2012 shall hold the field. No order as cost.