JAWAD HASSAN, J.----The Petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution ") for the judicial review of the order dated 09.06.2020 passed by the Respondent No.3/Chief Secretary (the "Impugned Order ") pursuant to directions issued by this Court in W .P. No.14960 of 2020 on 12.03.2020 whereby his application was disposed of.
2. The issue in this case is with regard to posting of the Petitioner who was earlier regularized by the Respondents on the basis of judgment passed by learned Division Bench in I.C.A. No.527 of 2016 dated 28.04.2016 and in the light of advice of Law Department dated 14.05.2019. A notification of his regularization as Associate Professor of Cardiology (BS-19) w.e.f. 25.03.2013 dated 05.07.2019 was issued by the Respondent No.2 subject to final outcome of CPLA pending before the Hon'ble Supreme Court of Pakistan and consequently , he was posted as Associate Professor of Cardiology (BS-19) at Nishtar Medical University , Multan vide order dated 02.08.2019. The Petitioner thereafter approached the Respondent No.2 for his posting at Lahore and submitted application dated 17.01.2020 and when no response was received, he submitted another application before the Respondent No.3 on 18.02.2020. Due to no response by the said Respondent, he approached this Court and filed W.P. No.14960 of 2020 on 12.03.2020 for seeking directions of his pending application before the Respondent No.2. Again the Petitioner approached the Respondent No.3 for compliance of directions issued in aforesaid writ petition and when no response was received, he filed another W.P. No.19760 of 2020. Till decision of said writ petition, the Respondents submitted report and parawise comments and attached certain documents including the impugned order . Hence this petition.
3. Report and parawise comments were filed on behalf of the Respondents vehemently denying the allegations levelled in the petition and praying for dismissal of the same.
4. Khawaja Adnan Ahmad, ASC for the Petitioner inter alia contended that the regularization and promotion of the Petitioner was duly approved by the Competent Authority subject to outcome of CPLA pending before the Hon'ble Supreme Court of Pakistan as such there was no reason for withholding his promotion and recommending re- visitation of his regularization through the impugned orders; that the respective Provincial Selection Boards (PSBs) have considered all the relevant facts and documents before recommending his regularization and promotion which were approved by the Competent Authority therefore, there was no reason or legal basis for the Respondents Nos.2 and 3 to recommend revisiting of already settled matter; that while passing the impugned order the Respondent No.3 has neither applied his mind nor considered the law hence passed a non-speaking order which is liable to be set-as ide .
5. Learned Law Officers objected qua maintainability of the present petition and submit that the promotion relates to terms and conditions of service of a civil servant, therefore, jurisdiction of this Court cannot be invoked in view of bar contained in Article 212 of the Constitution. Report and parawise comments were submitted wherein the Respondents have certain objections inter alia that the Petitioner has no locus-standi to invoke constitutional jurisdiction of this Court; that the petition is not maintainable as the Petitioner has not availed the departmental remedy; that the Respondent No.3 has decided to re-visit the earlier decision by exercising powers under Section 21 of the General Clauses Act, 1897; that the instant petition is premature as vide Impugned Order it has only been decided to place the case of the Petitione r before PSB after approval of the Summ ary submitted to Chief Minister and outcome of the same is awaited; that the impugned order is well-reasoned and has been passed in accordance with law .
6. I have heard learned counsel for the parties and gone through the available record.
7. Record reveals that the Petitioner , while performing his duties, throughout his career took the benefit of the orders passed by this Court from time to time. At present, he is performing his dutie s as a regular employee on the basis of decision passed in I.C.A. No.527 of 2016 dated 28.04.2016 against which CPLA is still pending before the Hon'ble Supreme Court of Pakistan as such does not require any comment by this Court. Since the Petitioner has taken the benefit of firstly being regularized and secondly the promotion on the basis of judgment passed by learned Division Bench, mentioned above, wherein all the facts were discussed in detail and were known to the Respondents with regard to expiry of Petitioner's contract on 08.08.201 1 and that he had faced disciplinary proceedings for absence from duty even on his original posting as Medical Officer. Despite the pendency of CPLA against above mentioned ICA, the Respondents have regularized and promo ted the Petitioner as such the directions issued in ICA are binding on this Court under Article 201 of the Constitut ion. The learned Division Bench in concluding paragraph observed that "Respondents Nos.1 and 2 are directed to regularize the service of appellant after getting his eligibility verified from Respondent No.4 i.e. PPSC in the light of Afsar Ali Bhatti Case (W.
P. No.22424/2009) decided on 20.04.201 1". It is noted that all the issues are pending before the Hon'ble Supreme Court of. Pakistan hence this Court cannot interfere in such matter because it will be deemed to be an interference in the matter pending before the Hon'ble Supreme Court of Pakistan. In "Water and Sanitation Agency , Lahore through M.D. v. Lottee Akhtar Beverages (Pvt.) Ltd. Lahore and others" (2019 SCMR 1146) the Hon'ble Supreme Court held that "such an endeavor indicates an attempt to undermine judicial process by sidestepping the express directions given by the Court. This course is invalid for inviting conflicting opinions and bypassing the hierarchy of judicial fora. We contemplate d initiating appropriate action against the Respondents but for now have decided to exercise judicial restraint ". In aforesaid judgment, the proceedings in the pending matter before the High Court were also stayed by the Hon'ble Supreme Court. In this case, the services of the Petitioner were regularized by the Respondents pursuant to direction s issued in afore-stated ICA as well as in the light of advice of the Law Department dated 14.05.2019/recommendations of the Provincial Selection Board-II in its meeting on 27.05.2019 and approval by the Chief Minister/Competent Authority on 12.06.2019 subject to the final outcome of CPLA pending before the Hon'ble Supreme Court of Pakistan. The Respondents in the report and parawise comments have admitted that "on the recommendations of Provincial Selection Board-I in its meeting held on 20.11.2019, and subsequent approval by the Chief Minister/Competent Authority on 11.12.261 19, Dr. Haroon Aziz Khan Babar , Associate Professor of Cardiology , Nishtar Medical University , Multan was clear ed for promotion to the post of Professor of Cardiology (BS-20) on regula r basis in his cadre subject to final outcome of CPLA pending before the Hon 'ble Supreme Court of Pakistan". The stance of the Petitioner is that the respective PSBs duly recommended his case for regularization and promotion after the approval by the Competent Authority . Hence the Respondents have no authority to send or recommend his case for re-decision by the respe ctive PSBs while stance of the Respondents is that certain crucial facts were not placed before the PSB-I and PSB-II at the time of recommending the case of regularization and promotio n of the Petitioner . It is noted that the matter with regard to A the regularization and subsequently of promotion was put by the Respondents before the PSB-I and PSB-II where they could point out all the facts and grounds and object on the regularization and promotion or even could defer the matter till the decision of CPLA pending before the Hon'ble Supreme Court but instead they proceeded to grant regularization and promotion to the Petitioner after approval from the Chief Minister as evident from Notification dated 05.07.2019. The Petitioner has primarily disputed the order dated 09.06.2 020, the relevant portion of the same is reproduced hereunder: "The Departmental Representative of SH&ME Department stated that on the recommendations of meeting of Provincial Selection Board-I dated 20.11.2019 duly approved by the Chief Minister/Competent Authority , the Petitioner was cleared for promotion to the post of Professor of Cardiology (BS-20) on regular basis, subject to final outcome of CPLA pending before the Hon'ble Supreme Court of Pakistan. However , after detailed examination of the case, it was concluded that certain important facts of the case were not submitted before the relevant fora at the time of recommendations for regularization of the Petitioner as Associate Professor of Cardiology (BS-19) and his subsequent clearance for promotion as Professor (BS-20) on regular basis".
(Underline is mine)
8. The above mentioned observation explicitly reveals that the Respondent No.3 has not mentioned the actual facts and grounds in the Impugned Order on the basis of which he referred the matter to the Chief Minister for approval in order to re-visit/re-open the matter before the concerned Provincial Selection Board. The Petitioner has relied on a notification dated 15.05.2004 annexed with this petition (Annex-A/72, Page 266), which was issued under Rule 4 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 according to which the Provincial Selection Board was made with the composition of Chief Secretary and other government officers and responsibility of the said Board was to make recommendations for appointmen t by promotion. Moreover , the concerned PSB approved his regularization in the light of documents already placed before it by knowing the pendency of CPLA and the grounds raised therein and proceedings against the Petitioner . Therefore, now they cannot turn around to restrain him due to fact that he was seeking his posting through the letters and directions of this Court. Furthermore, the Respondent No.3 has not mentioned the relevant law/rule under which the decision of PSB-I and PBS-II could be challenged by the Administrative Department hence the Impugned Order passed by the Respondent No.3 is sketchy and non-speaking.##T##
9. This Court is mindful of the fact that there is bar of Article 212 of the Constitution but the Petitioner's history throughout invoking the jurisdiction of this Court is prior to the judgments of Hon'ble Supreme Court of Pakistan reported in "Ali Azhar Khan Baloch and others v. Province of Sindh and others " (2015 SCMR 456), "National Assembly Secretariat v. Manzoor Ahmed and another " (2015 SCMR 253). However , the Petitioner is only seeking judicial review of the findings of the Respondent No.3 that "certain important facts of the case were not submitted before the relevant fora at the time of recommendations for regularization of the Petitioner as Associate Professor of Cardiology (BS-19) and his subsequent clearance for promotion as Professor (BS-20) on regular basis " which have been discussed in detail by the concerned PSB before filing of this petition.
10. The learned Law Officers when confronted that mere filing/pendency of CPLA in the Hon'ble Supreme Court of Pakistan precludes this Court from following/adopting earlier judgment of this Court, they could not tender satisfactory answer . In "Muhammad Ismail v. State" (PLD 1974 Karachi 29), it was held that "We will accept the law as laid down by the Supreme Court but until such law is laid down the mere grant of leave will not preclude me from referring to such judgment and even following it to some extent or even adopting the reasons on which the judgment of my learned brother is based". Further in "Yousaf A. Mitha and others v. Abo Bakar and others (PLD 1980 Karachi 92), the learned Division Bench held that "even if stay has been granted by the Supreme Court, unless the D.B. decision of this Court is set-aside by the Supreme Court, the law laid down therein is binding on me apart from the fact that the stay granted will apply inter parties in that matter only". It is noted that through the impugned order , certain rights of the Petitioner were accrued which cannot be overridden. Reliance is placed on "Nazar and others v. Member (Judicial- II), BOR" (2010 SCMR 1429 ) wherein it held that "it is settled law that once the matter has been finally adjudicated by the apex Court, then it is binding between the parties as law laid down by this Court in Pir Bakhsh's case PLD 1987 SC 145. In this case, the Petitioner , throughout, has been requesting this Court as well as to the Respondents for his posting after regularization and promotion, which right cannot be denied due to mere pendency of appeal or any inquiry .
11. In view of above, this petition is allowed and Impugned Order is set-aside. The Respondent No.3 will hear the Petitioner and pass a speaking order strictly as per law within a period of six (06) weeks from the receipt of certified copy of this order by mentioning all the chronological facts, grounds raised by the Petitioner , discussing specific documents and the relevant law and if permitted under the Rules/Regulations and till the outcome of CPLA pending before the Hon'ble Supreme Court of Pakistan, the Petitioner will be given posting.
Copy dasti on the payment of usual charges.