N. A. Qureshi who is, at present, working as Assistant Director Food, Lahore Region, Lahore, has filed this petition under Article 9 of the Provisional Constitution Order, 1981 against the Government of the Punjab through the Chief Secretary, S G A & I Department ; Secretary Food Depart--ment and the Secretary Finance Department.
The petitioner has impugned a portion of the order dated 25-11-1980 issued by the Secretary Food whereby his promotion to the post of Deputy Director Food w. e. f. 5-5-1961 is made subject to formal approval of Services, General Administration & Information Department.
2. On 6-7-1946, the petitioner joined the Food Department as Inspec--tor. On 15-2-1969, the petitioner was promoted as Ward Rationing Officer and on 28-1-1970 as Rationing Controller and posted at Rawalpindi. This post is equivalent to that of District Food Controller.
Prior to the joining of Food Department, the petitioner had rendered war service is the Military Accounts Department. He, therefore, represented to Secretary Food respondent No. 2 for war service benefit permissible under the law. It was on 1st February, 1976, that an order was passed by Deputy Director Food, Lahore Region Lahore, whereby the petitioner was granted the benefit of war service between 22-9-1942 to 31-3-1946.
3. Thereafter, the case of the petitioner was processed for further promotion.
On 25-11-1980, the Governor by means of Order No. SOF-VI-66-36 accorded sanction to the petitioner for war service benefit towards his seniority. Sanction was also accorded to the creation of supernumerary post to enable the petitioner to draw arrears of pay and allowances for the period indicated against each post in the order. So far as the post of Deputy Director, Food was concerned, it was sanctioned from 5-5-1961 onward. By means of this order the promotion to the post of Deputy Director Food w. e. f. 5-5-1961 was subjected to formal approval of S G A & I Department.
4. After the issuance of the said order, the petitioner approached the respondents for seeking necessary orders posting him as Deputy Director but the question of his promotion was deferred.
The petitioner was never officially served with any order but to the best of his knowledge some order had been passed on his file. As the petitioner received no official intimation he made private enquiry and came to know that his promotion had been deferred because of a criminal case pending against him in the Court of Special Judge Centre, Rawalpindi.
Since the petitioner had no other remedy for the redress of his grievance, he was left with no option but to come to this Court by means of this petition. The relief prayed for is that the condition of formal approval of S G A & I Department is without lawful authority and as such of no legal effect.
5. On 21-10-1981, report was called for from respondent No. 1 which has been received. The petition was admitted to regular hearing on 23- 11-1981 and it was ordered to be set down for final hearing on 9-12-1981 since the petitioner is to retire on 4-1-1982.
6. Learned counsel for the petitioner submitted that the competent authority for promotion to Grade 18 is the Governor and the necessary orders for promotion of the petitioner as Deputy Director Food w. e. f. 5-5-1961 has already been passed by the Governor. It was further submitted that once the competent authority had passed the necessary orders, the respondents had no power, in law, to impose any condition. According to the learned counsel, they had no option but to carry out the orders passed by the Governor. The condition of formal approval as such was without lawful authority and it must not stand in the way of the petitioner for promotion.
Learned counsel then dealt with the criminal prosecution which the petitioner is facing. The background of that case is that on 7-6-1976 a criminal case was registered by F. I. A. Against Messrs Karwan Trading Company, Rawalpindi, under different sections of the Pakistan Penal Code including section 409, P. P. C. Read with section 5(2)47 of the Prevention of Corruption Act. This is a notorious case known as Pir Humayun's case. Petitioner is one of the accused in that case.
Learned counsel submitted that so far the trial Court has granted more than 30 adjournments and no evidence has yet been recorded. It was submitted that the petitioner is being prosecuted without proper legal sanction. Learned counsel further submitted that the petitioner remained posted as Rationing Controller in Rawalpindi from 28-1-1970 to 4-7-1970, hardly for a period of five months, whereas the case pertains to a transaction which took place in between 16-8-1974 to 1-12- 1975. According to the learned counsel, the prosecution of the petitioner was mala fide.
As a matter of fact, learned counsel wanted to argue that the criminal case against the petitioner amounts to abuse of process of Court. Since that matter is not before me, therefore, I stopped the counsel from arguing about that case. I have to determine the legal proposition involved in this petition, keeping in view the merits of this case.
I may mention here that counsel for the petitioner cited the cases i.e. Muhammad Akbar Shah v.
The State (1) and Sher Mohammad v. The State (2).
7. The first point argued by the learned Assistant Advocate-General was that the condition of formal, approval of the S G A & I Department was in accordance with law. He relied on Punjab Civil Servants (Appoint--ment and Conditions of Service Rules) 1974, according to which the petitioner cannot claim promotion as matter of right. On the other hand, the promotion is subjected to scrutiny by the Departmental Promotion Committee/ Selection Committee as envisaged by rule 4.
Reliance was also placed on rule 9(2) which says "Promotion including pro forma promotion shall not be claimed as of right by any civil servant". Rule 10 was also pressed into service which reads thus;-- "Only such persona as possess the qualifications and meet the conditions laid down for the purpose of promotion or transfer to a post shall be considered by the Selection Authority."
(1) PLD 1975 Lah. 1404(2) PLD 1962 Kar. 658 Learned Assistant Advocate-General submitted that as such the case of the petitioner had been dealt with strictly in accordance with the rules and law. The Departmental Promotion Committee on 23-4-1981 arrived at a conclusion that as a criminal case is pending against the petitioner, the question of his promotion he deferred He relied on Government of West Pakistan v. Fida Muhammad Khan (1), Muhammad Aboo Abdullah v. The Province of East Pakistan and another (2) and Syed Abdul Qadir Shah v. Government of Punjab and another (3).
With regard to the objection about sanction, learned Assistant Advocate-- General relied on Criminal Law Amendment Act, 1958, section 6 and submitted that even if there was no formal order of sanction, then by operation of law after the expiry of 60 days it would be deemed that the necessary sanction had been granted. It was further submitted that sanction for prosecution of the petitioner had been approved by the Secretary Food Department vide letter dated 16-3-1978.
Relying on Muhammad Hussain Munir and others v. Sikandar and others (4) wherein it was observed. "However, that may be, it is wholly wrong to consider that the above Constitutional provision was designed to empower the High Court to interfere with the decision of a Court or tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong. In that case, it would make the High Courts' jurisdiction indistinguishable from that exerciseable in a full-fledged appeal, which plainly is not the intention of the Constitution-makers", learned Assistant Advocate- General submitted that this petition merits dismissal.
8. Before dealing with the contentions raised by the learned Advocates for the petitioner and the respondents, I would like to mention that when I called upon the Assistant Advocate-General to submit with regard to the maintainability of this petition, his submission was that he had looked up the relevant law and the petitioner had no other remedy except this petition.
9. Now I proceed to examine the contentions of the learned counsel for the parties. Both from the arguments of the learned counsel for the petitioner as well as the Law Officer, it is evident that the question of promotion has been deferred because of the criminal case against the petitioner.
I am not competent to decide in this petition as to whether the case against the petitioner is genuine or is due to mala fides. That issue is not before me. I do not think I can even make any observation in this connection because the matter is subjudice. However, there are certain facts which can be mentioned without expressing any opinion. Those are, that the first information report was registered in the year 1976. Thereafter up til today, no evidence has been recorded. As the trial has not yet commenced, it is not known when it would conclude. Even, the Assistant Advocate- General accepted this position.
(1)PLD1960SC45 (2)PLD1960SC164
(3) 1972 SCMR 323(4) PLD 1974 SC 139
10. With regard to the sanction for prosecution, I may mention that during arguments my attention was drawn to letter No. SOF-VII-VI(1)/77 dated 16-3-1978, addressed to the Home Secretary/Chairman Anti-Corruption Committee No. 2, Lahore, in which the Deputy Secretary (General) on behalf of Secretary Food had written " . . . . . . Accordingly we are of the view that sanction for prosecution in their case may be granted." On my asking as to what happened thereafter, the official who had brought the record submitted that the reply was still awaited.
11. Learned counsel for the petitioner drew my attention to Annexure (D) in which it is stated "a reference was received from the Ministry of Interior through Chief Secretary to Government of the Punjab for the grant of prosecution sanction against the officers, officials of Provincial Food Depart- -ment. The then Secretary Food Department refused grant of prosecution sanction in the case of Messrs N. A. Qureshi and Muhammad Aslam Khan. (The- refusal of prosecution sanction could not, however, be conveyed to the Court). The Court of Special Judge (Centre), Rawalpindi started proceedings against all the officers/officials as no intimation was sent within the prescribed period of 60 days". This Annexure did not bear any date. As the official had the entire record with him, date was provided by him and this pro forma is dated 5-1-1981.
This is the state of affairs. It is with utmost restraint that I have to avoid giving any finding with regard to the grant of sanction and 1 would. Therefore, leave this point at this stage.
12. The petitioner was granted war service benefit by order dated 1-2-1976. No doubt, that by that time no criminal case was pending against him. Nevertheless, when the order dated 25-11-1980 whereby the Governor of the Punjab accorded sanction to the grant of war service benefit towards the seniority of the petitioner, was issued the criminal case had already been registered. As already observed, it was on 5-1-1981 when the then Secretary Food refused to grant prosecution sanction.
Respondent No. 1 in the senior most officer of the Provincial Government whereas the remaining two are Heads of their respective Departments. It is impossible for me to believe that the fact that a criminal case is pending against the petitioner was not brought to their notice when the petitioner's case was submitted to the Chief Executive of the Province.
13. If the question of promotion of the petitioner was to be deferred on account of criminal case pending against him then there were many occasions to do so before the order dated 25-11-1980 was passed. In the aforesaid order, it is mentioned that sanction has also been granted for the creation o supernumerary post to enable the petitioner to draw arrears of pay and allowances for different periods. Hence, there appears to be no legal or equitable justification now to deny the petitioner the right of promotion when after putting in 38 years service he is due to retire on 4-1- 1982.
14. I have gone through the rules and the case law relied upon by the Asstt. Advocate-General. I don't think those are helpful to him because the facts and the law applicable in this case are substantially different to the dictum of the aforesaid cases.
In the case of Muhammad Hussain Munir and others v. Sikandar and others the proposition examined by the Supreme Court was, when the High Court is competent to interfere with the order of the Court or Tribunal below. This is not the question before me.
In the case of Government of West Pakistan v. Fida Muhammad Khan it was observed thus;- " . . By the use of the words "admissible to him immediately before" the prescribed date, the Legislature made it clear that the terms and conditions to which they were referring were to be understood in a restricted sense, and therefore in evaluating the expression in relation to a particular person, it would be clearly impossible to include such far-fetched matters as his prospective promotion into a higher service upon the assumption that he might attain a status in his present service and earn the degree of approbation necessary for such promo--tion . . . ."
The question which I am examining is entirely different to the one which was before the Supreme Court in this case. In the other case i.e. Muhammad Aboo Abdullah v. The Province of East Pakistan and another, the appeal was dismissed with the following observation :- "So far as suitability for promotion to a particular post is concerned, the sole Judge is the Government and Courts are unable to interfere except possibly in a case of proved mala fides."
No doubt, the Supreme Court examined the question of promotion and for that matter it was observed that the sole Judge is the Government but in this case the distinguished feature is that the Government has already granted sanction for the necessary promotion to the petitioner.
Leave was refused in the case of Syed Abdul Qadir Shah v. Government of Punjab and another on the ground " . . . We .Are also in agreement with the High Court that the appointment by the Commissioner was not a final order ; it was purely temporary and was subject to the relaxation of rule 11(2)". The question examined in this case by the Supreme Court was not identical to the one which I am being called upon to determine.
Now reverting to the impugned portion of the order dated 25-11-1980 where it is mentioned that promotion to the post of Deputy Director Food w. e. f. 5-5-1961 is subject to formal approval of Services, General Administra--tion & Information Department '(underlining is mine), the question for inter--pretation is whether the words "formal approval" would mean that the case of the petitioner was to be scrutinized de novo or that it was to simply pass through the Committee for its stamp.
15. The word "formal" according to the Webster's Third New Interna--tional Dictionary, means "relating to, concerning with or constituting the outward form, superficial qualities, or arrangement of something as is dis--tinguished from its content." !t is, thus, obvious that the Committee cannot under the law assume the power to undo what has been done by the Chief Executive of the Province.
For the foregoing reasons, I am of the view that there was no legal justification to withhold the promotion of the petitioner no the pretext off formal approval by the Committee.
Before concluding, I would like to observe that the promotion of the petitioner pending the criminal case would not, in any way, cause an irrepar--able loss to the Government inasmuch as if the petitioner is found guilty by the trial Judge then he shall have to face the consequences.
I, therefore, allow this petition and direct the respondents to give effect to the order of promotion dated 25-11-1980 and issue necessary orders/ notification, forthwith.