MIANGUL HASSAN AURANGZEB, J. -- Through the instant writ petition, the petitioners, Aurang Zeb Khan Toru, impugns memorandum dated 22.01.2018 , issued by the National Institute of Healt h, Islamabad (respondent No 3) informing him that his request for consideration for promotion with effect from 27.06.1998 had been turned down for the reasons mentioned therein.
2. The petitioner is an employee of the National Institute of Health/respondent No. 3 ("N.I.H.") which was established under the provisions of the National Institute of Health Ordinance, 1980. It is not disputed that the N.I.H. Employees' Service Regulations, 1989, which govern the petitioner's service with the N.I.H., are statutory .
3. In the year 1998, the petitioner was considered for promotion to the post of Director (Purchase and Procurement)
(BPS-19). Vide the N.I.H.'s office memorandum dated 22.08.1998, the petitioner was informed that the Departmental Promotion Committee, in its meeting held on 27.06.1998, had deferred the petitioner's case for promotion till the completion of an inquiry against him. Vide the N.I.H.'s office memorandum dated 06.11.1998, the petitioner was informed that all the inquiries had been completed and nothing had been found against him.
4. Accountability Reference No. 49/2001 was filed under Sections 18(g) and 24(b) of the National Accountability Ordinance, 1999, against the petitioner before Accountability Court No. 1,Rawalpindi/Islamabad. The trial before the learned Accountability Court culminated in the judgment dated 19.06.200 4, whereby the petitioner was convicted and sentenced.
5. Criminal Appeal No. 12-E/2004 against the said judgment of the learned Accountability Court was filed by the petitioner before the Hon'ble Lahore High Court Vide judgment dated 17.06.2015, the said appeal was allowed; the judgment dated 19.06.2004, passed by the learned Accountability Court was set aside; and the petitioner was acquitted of the charges against him.
6. Criminal Petition No. 594/2015 was preferred by the Chairman, National Accountability Bureau ("N.A.B.") before the Hon'ble Supreme Court against the said judgment dated 17.06.2015, passed by the Hon'ble Lahore High Court.
Vide order dated 28.08.2015, leave to appeal was granted by the Hon'ble Supreme Court. Presently , the appeal against the said judgment dated 17.06.2015 is pending before the Hon'ble Supreme Court.
7. Vide the N.I.H.'s office order dated 31.03.2017 , the petitioner was informed that on the recommendations of the Departmental Promotion Committee and with the approval of the competent authority , he had been promoted to the post of Director (Purchase and. Procurement) (BPS-19) on regular basis with ef fect from 27.02.2017.
8. On 27.11.2017, the petitioner preferr ed a departmental representation before the Executive Director , N.M. requesting for his promotion to be made effective from 27.06.1998 instead of 27.02.2017. Vide impugned memorandum dated 22.01.2018, the petitioner's said representation was turned down. As per the said memorandum, the reasons for turning down the petitioner's representation were as follows:-- i. The Departmental Promotion Committee (DPC) in its meeting held on 27.06.1998 deferred his promotion case till the completion of investigation in the matter of procurement etc. Thereafter his case was again placed before DPC in its meeting held on 2.01.1999. The DPC deferred the case till written clearance by FIA. ii. He was arrested by NAB on 23.07.2001 under the charges of corruption and accumulation of assets beyond known sources of his income. Later on he was convicted by the NAB. He remained under suspension from the date of his arrest by the NAB till his acquittal by Lahore High Court (we f 23.7.2001 to 23.12.2015). iii. After his acquittal by Lahore High Court, Rawalpindi Bench his case for promotion was placed before the DPC in its meeting held on 27.02.2017 and he was accordingly promoted from the same date. His request for antedate promotion has no merit, as his promotion was not delayed due to NIH Administration but due to arrest/Court case."
9. The said memorandum dated 22.01.2018 has been impugned by the petitioner in the instant petition.
10. Learned counsel for the petitioner , after narrating the facts leading to the filing of the instant petition, submitted that it is well-settled that mere pendency of disciplinary proceedings against an officer cannot be a valid ground to deprive him of being considered for promotion or to defer his promotion; that although a reference had been filed against the petitioner before the learn ed Accountability Court and the petiti oner had been convicted but subsequently , the Hon'ble Lahore High Court had allowed the petitioner's appeal and he was acquitted of all the charges against him; that although an appeal has been preferred against the judgment of the Hon'ble Lahore High Court, but till date, the same has not been set aside by the Hon'ble Supreme Court; that the petitioner was considered for promotion to BPS-19 on 27.06.1998, but was deferred due to a pending inquiry; that between 27.06.1998 and 27.02.2017, numerous meetings of the Departmental Promotion Committee had taken place, but in none of the meetings was the petitioner considered for promotion; and that the petitioner's promotion to BPS-19, vide office order dated 31.03.2017, is liable to be made effective from 27.06.1998 when he was considered for promotion but not promoted due to a pending inquiry . Learned counsel for the petitioner prayed for a direction to the N.I.H. to make the petitioner's promotion ef fective from 27.06.1998.
11. On the other hand, learned counsel for the N.I.H. submitted that a pending inquiry against an officer is a valid reason not to consider such an officer for promotion; that there were allegations of embezzlement against the petitioner; that the petitioner had been convicted by the learned Accountability Court; that even through the said conviction was set aside by the Hon'ble Lahore High Court and the petitioner was acquitted, an appeal against the judgment of the Hon'ble Lahore High Court is pending before the Hon'ble Supreme Court; that the petitioner had no cause for complaint since he was promoted to BPS-19 with effect from 27.02.2017; and that the petitioner's promotion cannot be ante-dated. Learned counsel for respondent No. .3 prayed for the writ petition to be dismissed.
12. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance.
13. The facts leading to the filing of the instant petition have been set out in sufficient details in paragraphs 2 to 9 above and need not be recapitulated..
14. It is an admitted position that the Departmental Promotion Committee of the N.I.H., in its meeting held on 27.06.1998, had deferred the petitioner's case for promotion to BPS-19 due to a pending inquiry against him. There had been several meetings of the Departmental Promotion Committee between 27.06.1998 and 27.02.2017 but the petitioner was not considered for promotion in any of the meetings. The petitioner has not been superseded at any material stage.
15. Although a reference had been filed against the petitioner before the learned Accountability Court and the trial had culminated in a conviction against the petitioner, the said conviction had been set aside by the Hon'ble Lahore High Court and the petitioner had been acquitted of all the charges against him. Despite the fact that the judgment of the Hon'ble Lahore High Court had been assailed before the Hon'ble Supreme Court and leave to appeal had also been granted, the petitioner was considered for promotion to BPS-19. During the pendency of the said appeal, the petitioner was promoted to BPS-19 with effect from 27.02.2017. The vital question that needs to be determined is whether the petitioner has a legal right for his promotion to BPS-19 to be made effective from 27.06.1998, i.e. the date when he was first considered for promotion, but was deferred due to a pending inquiry .
16. Now, it is an admitted position that the Departmental Promotion Committee in its meeting held on 27.06.1998 deferred the petitioner's case for promotion due to a pending departmental inquiry . Vide office memorandum dated 06.11.1998, the N.I.H. informed the petitioner that the departmental inquiry had been completed and nothing had been found against him. The N.I.H., in its written comments, has pleaded inter alia that after the completion of the inquiry against the petitioner , his case for promotion was again considered by the Departmental Promotion.
Committee in its meeting dated 02.01.1999 but the matter was again deferred, because an inquiry had been initiated against the petitioner by N.A.B.
17. It is well-settled that when an officer's promotion is deferred and he is subsequently promoted, he will regain the seniority which he had with his original batch mates. It is also well-settled that mere pendency of disciplinary proceedings against an officer cannot be a valid ground to deprive him from being considered for promotion or to defer his promotion. Therefore, I am of the view that the Departmental Promotion Committee in its meeting dated 27.06.1998 and 02.01.1999 could not have deferred the petitioner's case for promotion due to the pending inquiries. In holding so, I derive guidance from the law laid down in the following judgments:-
(i) In the case of Zia-ul-Hassan v. Naseem Chaudhary (2000 SCMR 645), it was held by the Hon'ble Supreme Court that the mere fact that some disciplinary proceedings were pending against an employee was not sufficient ground for not considering him for promotion.
(ii) In the case of Mumtaz Ali Shah v. Chairman, Pakistan Telecommunication Company Ltd. (PLD 2002 S.C.
1060 ), the appellant was not promoted due to a criminal case pending against him, whereas civil servants junior to him were promoted. The appellant sought his promotion with effect from the date when his juniors were promoted.
Even after the prosecution withdrew the case against the appellant, the authorities refused to promote him. The Service Tribunal upheld the decision of the authorities not to promote the appellant. The Hon'ble Supreme Court set aside the decision of the Service Tribunal, and inter alia held that the appellant had been wrongly denied promotion from the date when his juniors were promoted.
(iii) In the case of Muhammad Hanif v. Province of Sindh (2011 PLC (C.S.) 534), the Hon'ble High Court of Sindh gave a direction to the respondents to consider the petitioner's case for promotion purely on merits without any regard to the pendency of any criminal or civil case against him.
(iv) In the case of Salahuddin Mughal v. Province of Sindh (2012 PLC (C.S.) 1018), the petitioner was not promoted because a number of, enquiries were pending against him and a reference had also been filed against him by the National Accountability Bureau, it was held by the Hon'ble High Court of Sindh that pendency of a reference would not debar a civil servant for being considered for promotion. The Hon'ble High Court directed the department to consider case of the petitioner for promotion in accordance with law.
(v) In the case of Nazeer-ud-Din v. Government of Pakistan through Secretary. Passport and Immigration Department (2017 PLC (C.S.) 578). I had the occasion to hold as follows:--- "9. Now, it is well-settled that no one could be punished by denying him promotion or consideration for promotion before the charge is established against him. Mere pendency of a criminal case is no ground for denying him consideration for promotion. Although an FIR. has been registered against the petitioner, it is yet to be established whether or not the petitioner is guilty of the offence that he has been accused with. Until the conclusion of the trial against the petitioner, he cannot be denied consideration for promotion. Promotion is not the petitioner's vested right, but consideration for promotion in accordance with the law, indeed is."
Law to the said effect has also been laid down in the cases of Muhammad Riaz v. Government of the Punjab (2003 PLC (C.S.) 1496 ), Muhammad Hanif v. Province of Sindh (2011 PLC (C.S.) 534), Javed Iqbal Nasir v.
Managing Director , PEPCO (2012 PLC (C.S.) 1043), Shama Khan Zafar v. District Coordination Officer, Lodhran (2014 PLC (C.S.) 948) and Muhammad Amin v. Managing Director , House Building Finance Corporation (2016 PLC (C.S.) 569 ).
18. In view of the case-law mentioned above, the petitioner's case for promotion to BPS-19 could not have been deferred by the Departmental Promotion Committee in its meetings held on 27.06.1998 and 02.01.1999 solely on the basis of a departmental inquiry and an inquiry by N.A.B. against the petitioner. Between 19.06.2004 (when the petitioner was convicted by the learned Accountability Court) and 17.06.2015 (when the petitioner was acquitted by the Hon'ble Lahore High Court), he could obviously not have been considered for promotion. The pendency of the appeal filed by the Chairman, N.A.B. against the judgment of the Hon'ble Lahore High Court, whereby the petitioner was acquitted. did not stop the N.I.H. from promoting the petitioner to BPS-19 with effect from 27.02.2017.
19. The petitioner has brought on record the N.I.H.'s office order dated 20.03.2017 which shows that the appellate authority (i.e. the Secretary , Ministry of National Health Services, Regulations and Coordinat ion) had granted selection scale (BS-07) to Fazal Din with effect from 25.09.1988, He was also granted promotion to higher designations with all consequential benefits. This benefit was granted to Fazal Din after the appellate authority withdrew the minor penalty imposed on him. In the case at hand, at no material stage was any penalty imposed on the petitioner .
20. Ever since 1999 to 2017, the petitioner was not considered for promotion to, BS-19 for reasons not attributable to him. Consequently , the instant petition is disposed of with the direction to respondent No. 3 to reconsider the petitioner's above-mentioned representation dated 27.11.2017 in the light of the law laid down by the Superior Courts referred to herein above as well as the said decision contained in the said office order dated 20.03.2017.
Since the petitioner has retired in the recent past, the N.I.H. is expected to take a decision in view of the principles in Fundamental Rule-17. There shall be no order as to costs.