UMAR ATA BANDIAL, J.---These two petitions filed by Gul Roz challenge two judgment dated 14.02.2017 delivered by a learned Single Bench of the Peshawar High Court, Mingora Bench (Dar-ul-Qaza) Swat, dismissing two Writ Petitions filed by the petitioner in relation to different aspects of his claim for appointment to the post of Subedar Major (" SM"), Malakand Levies.
2. There is only one post of SM in the Malakand Levies wherein appointment is made by promotion. On 31.05.2012 one SM-Muhammad Humayun was to retire from that post but was granted extension for one year by the respondent-Commandant, Malakand Levies ("Commandant"). The petitioner a Subedar in the Malakand Levies was an aspirant to the post of SM. He filed a Writ Petition unsuccessfully challengi ng the extension granted to SM- Muhammad Humayun. His petition before this Court dated 28.06.2012 was also dismissed on 02.10.2012; but it was ordered that his departmental appeal before the Home Secretary , KPK be decided expeditiously . On 19.10.2012 the petitioner's departmental appeal was accepted and retirement of SM-Muhammad Humayun was ordered with effect from 31.05.2012 on completion of four years service as SM. Thereafter , the Departmental Promotion Committee (" DPC ") vide notification dated 07.12.2012 promoted the petitioner as SM w .e.f. 01.06.2012.
3. Meanwhile, SM-Muhammad Humayun filed a departmental appeal against the order dated 19.10.2012 which was rejected. Thereupon, he filed a Writ Petition No. 587-M of 2012 before the learned High Court in which he secured an interim order dated 07.12.2012, inter aiia, suspending the petitioner's promotion to the rank of SM recommended by the DPC. and allowing SM-Muhammad Humayun to continue to hold the post of SM.
4. On 04.02.2013, the Provincially Administered Tribal Areas (PATA) Levies Force Service (Amended) Rules, 2013 were enforced. Pursuant to Rule 17 read with Schedule-Ill thereof, a Subedar Major (BS-16) retires after 38 years of service or 03 years service as Subedar Major or 60 years age, whichever is earlier. Likewise, a Subedar (BS-13) retires after 25 years of service or 03 years service as Subedar or 57 years age, whichever is earlier . This rule amended Rule 16 of the erstwhile PATA Levies Force (Service) Rules, 2012, whereby retirement from service took place upon a levies of ficer attaining the age of superannuation i.e. 60 years.
5. Consequent to the suspension of the petitioner's promotion order dated 07.12.2012 as SM, he remained in the rank of Subedar and drew the salary of that post. The petitioner filed Writ Petition No.500-M of 2016 to avoid the amended retirement criteria enforced in the PATA Levies Force Service (Amended) Rules, 2013. He prayed that the tenure of his service as SM be directed to commence from the date when his promotion is actualized upon the vacation of the interim order dated 07 12-2012 passed in Writ Petition No.587-M of 2012 filed by SM-Muhammad Humayun. This petition was dismissed by the East impugned judgment dated 14.02.2017 which has been challenged before us through Civil Petition No. 1557 of 2017. Thereafter , vide order dated 13.12.2016, the Commandant directed the petitioner to report to the Levies Lines, Malakand and ordered one Amir Zaman, Naib Subedar to "look after the affairs of SM" Malakand Levies. The petitioner thereupon challenged the aforesaid order dated 13.12.2016 through Writ Petition No.753-M of 2016 before the High Court. However , the same was also dismissed by means of the second impugned judgment dated 14.02.2017. This judgment is presently challenged before us in Civil Petition No.1569 of 2017. We are also informed that subsequently , the petitioner was retired from service on having completed according to the amended Service Rules, 2013 his tenure as Subedar in the Malakand Levies.
6. The learned High Court did not interfere with the order dated 13.12.2016 passed by the Commandant.
Considering that the petitioner had been promoted as SM on 07.12.2012 w.e.f. 01.06.2012, the High Court observed that the petitioner was entitled to emoluments of that post notwithstanding an injunctive order dated 07.12.2012 passed in pending litigation. Also since the tenure of that post had also ended, the petitioner was not entitled to the actualization of his promotion. Consequently , payment of dues in BS-16 was ordered in favour of the petitioner and the matter was concluded.
7. Learned counsel for the parties have been heard. To our minds, the learned High Court erred in deeming the petitioner to be a SM notwithstanding the fact that w.e.f. 07.12.2012 his promotion had been suspended. It is clear that the petitioner cannot be deemed to have completed his tenure as SM and to have retired from that post without ever holding the same. On the other hand, the department has treated the interim order dated 07.12.2012, suspending the promotion of the petitioner , to operate, as an annulment of his promotion. Therefore, they considered his tenure in the substantive post of Subedar to have been completed and hence by ignoring his promotion order and the pending litigation, they retired him from service. In our considered opinion, even. this approach is incorrect because a suspension order is not a final adjudication about the validity of a promotion order or tantamount to its A reversal. According to Black's Law Dictionary (Ninth Edition), the word suspend' means: "suspend,
1. To interrupt; postpone; defer <the fire alarm suspended the prosecutor's opening statement.
2. To temporarily keep (a person) from performing a function, occupying an office, holding a job, or exercising a right or privilege <the attorney's law licencse was suspended for violating the Model Rules of Professional Conduct> ..."
8. The whole controversy turns on the effect of the interim order dated 07.12.2012. That order does not validate or reverse the promotion of the petitione r --passed on even date i.e.: 07.12.2012. It merely postpones the implementation of the said promotion order. The continuance of the petitioner in the rank of Subedar on account of the interim order does not count towards his substantive tenure in that post but is merely a consequence of the interim order . Therefore, such service cannot count towards the exhaustion of his tenure as Subedar for the purpose of retirement. We consider that in the circumstances of the present case the tenurial criterion cannot be the determining factor for fixing the date of retirement of the petitioner . This is because such criterion for retirement was rendered superfluous due to the interim order dated 07.12.2012 passed in pending litigation. The terminal date for retirement under the. erstwhile as well as amended Service Rules is 60 years for the post of SM but is reduced to 58 years for the post of Subedar . It is nobody's case that the petitioner attained the age of superannuation or crossed the maximum service limit permitted under the erstwhile or the current Service Rules. The mere fact that the promotion order dated 07.12.2012 of the petitioner is suspended, does not mean that he has been demoted or reverted or that the order had been cancelled. Consequently , the petitioner's retirement by the respondent-Commandant is premature and the order dated 13.12.2016 impugned by the petitioner in Civil Petition No.1557 of 2017 before us (arising out of Writ Petition No. 753-M of 2016 before the High Court) is therefore presumptuous and illegal. Rather than implementing the promotion order of the petitioner dated 07.12.2012 as SM or taking other proceedings in relation thereto, the Commandant wrongly presumed that the petitioner is ineligible for that post. Hence he directed the said post of SM to be officiated by a junior officer and recalled the petitioner to the Levies Lines pending his retirement. We consider that the said approach is wrong on the facts of the case and the law applicable thereto. Accordingly , the promotion order of the petitioner merits implementation in accordance with law and the criteria laid down in the amended Service -Rules, 2013.
For the foregoing reasons, both these petitions are converted into appeals and allowed in above terms.