Through instant writ petition, the petitioner has called in question his non-consideration by the Departmental Promotion Committee for promotion to next higher grade i.e. BS-16 under uplift and upward mobility (Pay Package w.e.f. 1.12.2009).
2. Relevant facts giving rise to the filing of the instant writ petition are that the petitioner was appointed as PTC vide Letter No. 11079 dated 31.12.1984 and joined his duties at Government Primary School, Dera Mehro Markaz .Karor Pacca, Lodhran. Later on, he was temporarily adjusted as EST against the leave vacancy of Mr. Hazoor Bakhsh, EST vide Letter No. 7870/Admn dated 28.10.1985 with the condition that appointment against leave vacancy is temporary up till 31.08.1986 and after the said date he was to report back at his original post i.e. PTC. Instead of report back to his original post the said teacher was adjusted as EST against the post of Mr. Hazoor Bakhsh vide Letter No. 3365/Admn dated 10.08.1986 by the competent authority. On query regarding verification/confirmation of posting of the petitioner as EST by the Deputy District Education Officer, Kehror Pacca as well as the Incharge Head Master, Govt. High School, Bahawal Garh, Tehsil Kehror Pacca, District Lodhran vide letters dated 27.09.2010 and 16.08.1986 respectively, the District Education Officer informed that the services of the petitioner as EST had already been confirmed/verified vide Letter No. 3365 dated 16.08.1986 on permanent basis.
3. Subsequently, the Chief Minister of the Punjab vide notification dated 06.11.2009 approved the structure for uplift and upward mobility of Primary and Elementary School Teachers (Male and Female) of all categories in Punjab w.e.f.01.12.2009 as per ratio given below:-- Category of TeacherInitial Level , Level I Level II Pay ScaleRatio of PostPay ScaleRatio of PostPay ScaleRatio of Post PSTs (Male & Female)BS-9 50% BS-12 35% BS-14 15% ESTs(Male & Female)BS-14 50% BS-15 35% BS-16 15% ESTs(English)
(M & F)BS-14 50% BS-15 35% BS-16 15% In this regard, the senioritylist of ESts (General), District Lodhran was prepared in which the petitioner was placed at Sr.No. 17. The meeting of Departmental Promotion Committee, Lodhran was convened on 11.08.2011 but the petitioner, whose seniority was rated at Sr. No. 17, was not considered for the benefit of next higher grade BS-16 and his juniors, who were assigned seniority at Serial No. 18 to 65, were awarded BS-16. When the petitioner approached the Executive District Officer (Education), Lodhran, he was informed that his name was not considered by the Departmental Promotion Committee due to the reason that his inquiry was pending on the basis of an Audit Para in respect of his irregular appointment against the post as EST.
4. The petitioner prayed that a direction may be issued to the respondents to place his case before the Departmental Promotion Committee for fair consideration to award grade BS-16 under the structure of uplift and upward mobility at par with his batch mates.
5. Notice was issued to the respondents who filed report and para-wise comments wherein, it is mentioned that in the year 2006-09, the audit scrutiny was conducted by the Audit Department of office of the Deputy District Education Officer (M) Tehsil Kahror Pacca. The Audit Officer raised the objection regarding appointment of the petitioner as EST at Government Middle. School Mohammad Saeed Tehsil Kahror Pacca in the shape of Advance Audit Para No. 02 that the appointment of the petitioner is irregular and needs an inquiry into the matter and an inquiry officer was deputed to look into the matter.
6. Learned counsel for the petitioner has argued that the pendency Of inquiry on the basis of Audit Para could not have been made basis for non-consideration of the petitioner in the next higher grade BS-16. He contended that it is a well established law laid down by the Hon'ble Superior Courts that the pendency of inquiry and even minor penalty cannot come in the way of promotion.
Reliance has been placed on Maj. Ziaul Hassan, Home Secretary and others versus Mrs. Naseem Chaudhry (2000 SCMR 645), Mrs. Sanjida Irshad, Assistant Director Nursing, Bahawalpur versus Secretary to Government of the Punjab Health Department Lahore and others [2008 PLC (C.S) 1019] and Muhammad Afzal Khan versus Government of Punjab through Secretary to Government of the Punjab C&W Department and another [2009 PLC (C.S.) 40]. The Hon'ble Supreme Court of Pakistan in its judgment has held that some disciplinary proceedings pending against the civil servant is not a sufficient ground to disregard his lawful right of fair consideration for promotion. Moreover, the Hon'ble High Court in the above cited judgment has held that the civil servant cannot claim promotion as a matter of right, but it is an inalienable right to every civil servant that he be considered for promotion along with his batch mates, if he fulfills eligibility criteria.
7. During the course of arguments, learned Assistant Advocate General Punjab has fairly commented that a civil servant cannot be disregarded for promotion if one is not otherwise ineligible. He has fully agreed with the judgments passed by the Hon'ble Superior Courts on this issue.
8. I have given my anxious consideration to the arguments advanced by learned counsel for the petitioner as well as learned Assistant Advocate General and have perused the record with their able assistance.
9. This is an admitted position that the Chief Minister of the Punjab approved the structure of uplift and upward mobility of Primary and Elementary School Teachers of all categories vide notification dated 06.11.2009. In pursuance of the said notification, EST and other cadres were to be awarded next higher grade BS-15 & BS-16 on the basis of date of their regular appointments and length of service on the recommendations of District Selection Committee, Lodhran. Consequently, the District Education Officer, Lodhran notified seniority list for such promotion and petitioner's seniority was reckoned at Sr.No. 17 in the said list. The Departmental Promotion Committee was convened on 11.08.2011 but the petitioner's name was not placed before the same, as a result of which the juniors to the petitioner,,.Who were assigned seniority against Sr. Nos. 18 to 65 were awarded BS-16. From the parawise comments filed by the respondents, it is made clear that the name of the petitioner was not placed before the Departmental Promotion Committee due to the reason that an inquiry on the basis of advance Audit Para was pending against him.
10. As held by the Hon'ble Superior Courts of the country that the pendency of inquiry and one minor penalty cannot come in the way of promotion of a civil servant. Further that civil servant cannot claim promotion as a matter of right but it is also undisputed fact that it is an inalienable right of every civil servant that he be considered for promotion alongwith his batch mates.
11. Surprisingly, in the instant case, the petitioner was deprived to be considered for promotion to the next higher grade BS-16 before Departmental Promotion Committee, Lodhran on the sole reason that his inquiry regarding Audit Para was pending.
12. Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 speaks about the right of individuals to be dealt with in accordance with law, to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. In the same manner, Article 25 of the Constitution of Islamic public of Pakistan, 1973 ensures equality of citizens by mandating t all citizens are equal before law and are entitled to equal protection of law.
13. Chapter-I of the Constitution of Islamic Republic of Pakistan, 1973 is an integral part of the Constitution and all State functionaries are duty bound to extend these rights across the board to citizen. It is not necessary for State functionaries to have performed their Constitutional obligations after intervention of the Hn'ble Superior Courts. Under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 this Court has the jurisdiction to protect and enforce the fundamental rights of the citizens which have en denied. According to Article 5 of the Constitution of Islamic public of Pakistan, 1973, loyalty to State and obedience to restitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan. The word "citizen" does not confine to the ordinary citizen of the country but also covers person's functions in connection with the affairs of the Federation, Province or a legal authority. All the state functionaries are duty bound to strictly adhere to the constitution and specially Articles 4, 5 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 while dealing with their day to day business. They should not wait for intervention of the Hon'ble superior Courts but to extend equal treatment and protection of law whenever they are seized of the matters of the aggrieved persons.
14. In the present case, the respondents were mindful of the that there are number of judgments passed by the Hon'ble superior Courts having decided question of law that mere pendency of departmental inquiry or in the presence of minor penalty, a civil servant cannot be denied of his fundamental rights to be considered or promotion where his batch mates and even juniors are considered promoted. The department sat over the case of the petitioner for a long time waiting for the decision of this Court. The name of the petitioner could have been placed in the next scheduled meeting of departmental Promotion Committee but the needful was not done in complete determent. The petitioner, who is a teacher by profession, trust have gone through frustration and mental stress due to denial of legal right. The concept of administration of justice has been defined and interpreted by a number of judicial pronouncements. Reference could be placed on the judgment passed by the Hon'ble Supreme Court of Pakistan in case titled Samiullah Khan Marwat versus Government of Pakistan and another reported in [2003 SC 11401, in which concept of administration of justice has b interpreted, the relevant portion of the judgment is reproduced under: The exercise of powers by the public functionaries derogation to the direction of law would amount to disobey command of law and the Constitution. The concept administration of justice is not confined only to the judicial system rather every person discharging the functions relation to the rights of people is bound to act fairly, justly in accordance with law."
15. In the aforementioned circumstances, I have no of option except to allow the instant writ petition. The respondents directed to place petitioner's promotion case before the Department Promotion Committee, Lodhran within a period of two months fro the receipt of this order and the Departmental Promotion Commit shall consider the promotion case of the petitioner in highly fair just manner. The result of the Departmental Promotion Commit shall be conveyed to this Court through the Deputy Register (Judicial). The instant writ petition is allowed in the above terms.