ABDUL SHAKOOR, J. Through instant constitutional petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner seeks the following prayer:- "It is, therefore, most humbly prayed that on acceptance of this writ petition, an appropriate writ may be issued directing the respondents No.4 and 5 to consider the petitioner for his due and legitimate right after being illegally , superseded as his junior colleague (respondent No.6) has been promoted and they further be restrained not to harass/unfunded humiliate the petitione r by putting him illegally in endless inquiries followed by frequent transfer/posting and as such the petitioner be redressed accordingly enable him to enjoy the protection of law being guaranteed fundamental rights."
2. Brief but relevant facts for the disposal of this petition are that on 20.12.2007 a decoity was committed in the office of Assistant Political Agent, F.R Kohat, as a result of which, FIR bearing No.794 was registered at Police Station Jangle Khel, District Kohat. In addition to the FIR, regarding the said incident, a departmental enquiry was initiated against the petitioner but the same has not been finalized as yet. Under the garb of that enquiry, petitioner has became rolling stone and faced frequent transfers, illegal detention and his service is suspended since 2015; during the period of suspension and pendency of so called enquiry his junior and batchmate have been promoted but he was not considered for promotion on account of his suspension and pendency of enquiry. Under the circumstances, he was left with no other option but to invoke the constitutional jurisdiction of this Court against the illegal. and unlawful act of respondents. Hence, this petition.
3. This Court in view of the averments made in the petition, called, comments from the respondents. In the comments they stated, no result was achieved from the first enquiry , therefore, second enquiry was ordered, in which, petitioner service was suspended vide order No.94/1DC/KT dated 17.7.2015. It was also stated in the comments that during the pendency of second enquiry, the petitioner was suspended, and promotion from junior clerk to senior clerk was made but he was not recommended for promotion because of the pendency of said enquiry .
4. Learned counsel appearing for the petitioner stressed very hard that law i.e. the Khyber Pakhtunkhwa Government Servants (E &D) Rules, 2011 does not permit the respondents to keep the civil servant i.e. petitioner suspended beyond the period of 90 days, unless competent authority within 30 days before the expiry of 90 days extend it for further period of ninety days, and, there is nothing onthe record, which may suggest that suspension period of petitioner has ever been extended after expiry of ninety days, thus suspension of petitioner after ninety days w.e.f 11.02.2015 is illegal, and, legally he stood reinstated into the service after expiry of ninety days from the first day of his suspension. He added further that it was the petitioner legal right to have considered for promotion along with other junior clerks who were either junior to him or his batchmat, but he was illegally deprived from his that right on the basis of pendency of so-called enquiry proceedings. He next contended that under E&D rules 2011 there is no concept to keep on the departmental enquiry for years and years, as many years have been elapsed since the commencement of second enquiry, against the petitioner, but it has not been finalized as yet, the same is sheer exploitation of petitioner, as a result of which he was not only suspended illegally but has been deprived from his right to have considered for promotion along with his batchmate.
5. On the other hand, the learned couns el appearing for respondents fully supported the act of respondents of keeping the petitioner suspended w.e.f 17.02.2015 and to have not considered for promotion along with his other col leagues/batchmate.
6. We have considered the submissions of learned counsel for the parties and carefully gone through the record available on file.
7. Admittedly, petitioner service is suspended w.e.f. 17.02.2015 and he was not considered for promotion along with his other colleagues/batch-mate on account of pendency of second enquiry, which is commenced in the end of 2015. Now question arises, whether respondents was having lawful authority to keep the petitioner suspended for indefinite period and to not consider him for promotion only on account of pendency of enquiry proceedings? The answer of this question is big no.
8. Perusal of record would show that petitioner service was suspended for indefinite period w.e.f 17.02.2015.
It is to be seen whether the law holding the field i.e. Khyber Pakhtunkhwa Government Servants (E&D) rules, 2011, permit the respondents to keep the petitioner, who, undoubtedly, is civil servant, suspended for indefinite period. It is advantageous to reproduce the relevant provision of suspension as it stipulated in Khyber Pakhtunkhwa Government Servants (E&D) Rules, 2011.
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6. Suspension.-A Government servant against whom action is proposed to be initiated under rule 5 may be placed under suspension for a period of ninety days, if in the opinion of the competent authority, suspension is necessary or expedient, and if the period of suspension is not extended for a further period of ninety days within thirty days of the expiry of initial period of suspension, the Government servant shall be deemed to be reinstated: Provided that the competent authority may, in appropriate case, for reasons to be recorded in writing, instead of placing such person under suspension, require him to proceed on such leave as may .be admissible to him, for such date as may be specified by the competent authority .
A bare perusal of above provisions of (E&D) rules, 2011 shows that in the first instance the competent authority can suspend the delinquent employee for ninety days and if he does not suspend the delinquent employee for further 90 days then the delinquent employee shall stand reinstated in the service. Applying the above said provisions in the facts of the case of petitioner, leads, this Court to irresistible conclusion that respondents were having no lawful authority to suspend the petitioner for indefinite period and after expiry of ninety days of his suspension w.e.f 17.02.2015, legally, he stood reinstated in the service. In similar situation the Apex Court in the case 2008 SCMR 563) has held as under: "According to Si. No.85(2)(b) of the ESTACODE (2000 Edition, page 567), since continuation of forced leave or suspension beyond a period of three months again requires the approval of the "authority", on expiry of the said period of three months, the Government servant who has been placed under suspension or forced to proceed on leave would tie deemed to have been reinstated unless before the expiry of the said period the approval of the "authority" to the Government servant continuing to be under suspension or on leave has been obtained. Since no such approval of the competent authority was obtained in the present case, the suspension order cannot continue any further. Moreover, Sl. No.126 of the ESTACODE (2000 Edition, page 622), provides that disciplinary proceedings against Government servants placed under suspension should be finalized within two months of the date of suspension and if in any case it is not possible to finalize departmental proceedings against the Government servant within such time, the matter should be reported to the Secretary Establishment giving reasons for not completing the proceedings. Rule 5(1) of the Government Servant (Efficiency and Discipline) Rules, 1973 also contains similar provision. It may be advantageous to reproduce the same as under:-- "5. (1) In case where a Government servant is accused of subversion, corruption or misconduct, the Authorized Officer may require him to proceed on leave or, with the approval of the authority, suspend him, provided that any continuation of such leave or suspension shall require approval of the authority after every three months."
The plea raised by the learned counsel for the applicants also finds support from the observations made by learned High Court in the case Mian Munawar -ud-Din v. Federation of Pakistan PLD 1979 Lah. 699, relevant portion whereof reads as under:-- "It may further be noted that according to rule 5(1) reproduced above, any continuation of suspension requires approval of the authority after every three months. This provision also makes it further clear that not only the contemplated suspension but the continuation must be preceded by approval. This view is further supported by the official interpretation of the Department, as given in Office Memo. No.7/2/75-DI, dated 22nd February , 1975, issued by the Establishment Division of the Cabinet Secretariat, Government of Pakistan. The relevant portion may be reproduced with advantage:--
(a) Since under rule 5 of the Government Servants (Efficiency and Discipline) Rules, ,1973, the "Authorised Officer" can only suspend a Government servant after obtaining the approval of the "authority", on the basis of .principle embodied in section 25 of the General Clauses Act, 1897, the "Authorised Officer would be competent to reinstate the Government servant only with the approval of the authority".
(b) Since continuation of forced leave or suspension beyond a period of three months again requires the approval of the "authority" it would appear that on expiry of the said period of three months, the Government servant who has been placed under suspension or forced to proceed on leave would be deemed to have been reinstated unless before the expiry of the said period the approval of the "authority" to the Government servant continuing to be under suspension or on leave has been obtained."
The above judgment follows the law laid down by this Court in the case of Nazir Ahmed v. Pakistan and 11 others PLD 1970 SC 453 ."
9. We may mention here that learned counsel did not produce any law or any provision of law, which may debar the respondents from considering the petitioner along with his batchmate mere on the basis of pendency of an enquiry, which conclusion is not in sight in near future, despite its commencement, in the year 2015. Thus, non-consideration of petitioner for his promotion along with his batchmate was not legal, fair and just and he was unlawfully, unfairly and illegally deprived from his right for consideration of promotion.
10. In the light of above discussion, we admit and allow this petition and strike down impugned suspension order, consequently petitioner shall be deemed to have been reinstated in the service just after expiry of ninety days of his suspension w.e.f. 17.02.2015 and also direct the respondents to consider the petitioner for his promotion by keeping his case at juxta position with the cases of his other batchmate who been promoted.