Malik Manzoor Hussain, J.--Sultan Hanif Orakzai, petitioner through the instant Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan. 1973 has approached this Court for the following relief: "It is, therefore, humbly prayed that on acceptance of this Writ Petition, the impugned order dated 15.3.2011 superseding the petitioner be declared illegal, without jurisdiction, arbitrary, based on m alafide, discriminatory, void ab-initio and inoperative upon his right and directing the respondent to consider the petitioner for promotion to BPS-21 according to the prevailing law and rules with all back benefits."
2. Briefly stated the facts of the case are that petitioner after qualifying CSS Examination joined Police Services of Pakistan (PSP on 20/02/1976). He was promoted to the higher post (BPS-20 on 27/07/1998) and ultimately posted as DIG Police Strategic Plan Division at Central Police Office, Peshawar in BPS-20; that Central Selection Board in its meeting held on 30/12/2010 recommended all other colleagues of the petitioner for promotion from BPS-20 to BPS-21 while the petitioner was superseded by imposing certain allegations vide letter dated 15/03/201. Hence the instant Constitutional petition.
3. Learned counsel for petitioner contended that the petitioner had fulfilled the required length of service as well as other eligibility and fitness for promotion in BPS-21 but unfortunately he was superseded on the flimsy ground. It was further contended that the petitioner had been condemned unheard on the allegation regarding which he was not even given notice or allowed to explain his case. It was contended with vehemence that the career profile of petitioner showed that he was an excellent officer, performing his duty honestly, diligently to the entire satisfaction of his superiors and earned good ACRs with no adverse remarks as such he was entitled for promotion. It was lastly submitted that contentions raised in the present petition lend support from the record/ACRs, produced in the Court. Reliance was placed on the case of "Muhammad Zafeer Abbasi Vs Government of Pakistan (2003 PLC (CS) 503), "Iftikhar Ullah Malhi Vs Chief Secretary"
4. Conversely, learned Deputy Attorney General argued that the instant petition is not maintainable being barred under Article 212 of the Constitution r/w Section 3(2) of Service Tribunal Act, 1973. It was further contended that Civil Servant had no right to ask for promotion and refusal of promotion was a matter which was the exclusive domain of executive authority.
' Arguments heard, record perused.
5. Firstly of all we would like to attend the objection of learned Deputy Attorney General regarding jurisdiction of this Court. The question whether a person having requisite eligibility, has rightly been selected or not selected on account of fitness or otherwise for appointment to hold a particular post or to be promoted to a higher grade, stand excluded from the jurisdiction of Service Tribunal or not under terms and conditions of service and bar contained in Article 212(3) of the Constitution came up before the apex Court in "Muhammad Anis & others Vs Abdul Haseeb & others" (PLD 1994 SC 539), wherein the apex Court held that the question whether a person having requisite eligibility has rightly been selected or not selected has been excluded from the purview of sub-section (1) of Section 9 of the Service Tribunals Act, 1973 and therefore this question can be resolved through constitutional petition. This dictum was again affirmed in the case of "Muhammad lqbal & others Vs Executive District Officer (Revenue) Lodhran & others" (2007 SCMR 682). Thus in the light of above referred judgments it is crystal clear that the person having eligibility, whether selected or not selected on account of fitness or otherwise for appointment to hold of a post or to be promoted to a higher post or grade, is excluded from the jurisdiction of Service Tribunal and as such the said order is amenable to the writ jurisdiction of this Court, therefore, the objection raised by learned Deputy Attorney General has no substance and is hereby repelled.
6. The respondents while filing Para-wise comments have just mentioned the following words:- "The CSB, however, did not recommend him for promotion to BS-21 for the reasons "Bad performance, Misuse of authority, Doubtful integrity. Total score of PERs, TERs and marks awarded by the Board well below the minimum prescribed threshold of 75".
7. No material has been placed on record with the comments by the respondents and the concerned official who produce the original record alongwith ACRs/ PERS of the petitioner twice before this Court was not of supportive of the contentions raised in comments. Rather as per record produced by Hafiz Abdullah Section Officer respondent in ACR for the year 2009 was examined by this Court, wherein no adverse entries against the petitioner or overall performance had been shown as outstanding and thus had been recommended for promotion. Similarly in ACR for the year 2010, the petitioner had been shown as a person of impeccable, honesty and integrity and does not own even a bicycle. It further goes on to say that morally he is very sound and upright. Professionally he is very sound and his performance is excellent above board and he is a man of new ideas, he was also recommended for promotion. Likewise in ACR 2011, his overall grading had been shown as outstanding and fit for promotion.
8. We have noticed that petitioner was promoted to BPS-20 on 27.7.1998 by considering his overall performance. The three consecutive ACRs produced by Section Officer/ Record Keeper also support the fact that the stigma of bad performance, misuse of authority, doubtful integrity does not depict in the ACRs, The petitioner has undergone various courses successfully through NIPA and also National Defence courses securing the highest grading. If there was any record with regard to allegation made against the petitioner in the comments then that should have been brought in his service record and also had to be communicated to him. The stigma of bad reputation/unsatisfactory integrity was a serious one and it could not be allowed to remain in existence without reply by the petitioner. It was the requirement of law that this stigma must be supported by any evidence, so that the petitioner would be able to rebut the same or at least he would have been allowed to explain his position. No one/ could be condemned unheard is a universal phenomena.
9. The contention of learned Deputy Attorney General that promotees were necessary party and in their absence, this Writ was not maintainable, in our estimation is not correct because the petitioner has not claimed any relief against them. He could be given only benefit of higher grade as had been given to his colleagues without disturbing the others. It is well settled by now that promotion can be given to a Civil Servant without disturbing the others. Though the petitioner has been retired during pendency of instant petition, but much before retirement of petitioner he was superseded and his case was not properly dealt with therefore, he cannot be made to suffer on account of departmental lapse.
10. In view of what has been discussed above, this petition is allowed and respondents are directed to place the petitioner's case before Central Selection Board with all the relevant ACRs and other record, who would consider the petitioner's case for promotion in BPS-21. If the C.S.B. Forms the view that in normal case the petitioner would have been promoted, if he would have been considered on the actual record, the department shall give him proforma promotion with effect from the date when his juniors were promoted in BPS-21 vide impugned order. As the petitioner has been retired, therefore his promotion will not affect the seniority of any other official already in service. He would be entitled only to pay and allowances etc. The department shall finalize the above matter within four (04) months positively.