Hafiz Muhammad Kaleem ud Din petitioner has filed the instant writ petition with the following prayer: "It is, thereby , humbly prayed that by accepting this writ petition, the respondents may kindly be directed to promote the petitioner from BS-18 to BS-19 from his due date, while considering his successive written and oral requests.
The order dated 19.04.2021 may also be declared illegal unlawful and without lawful authority . They may also be directed to initiate and release the pensionary benefit to the petitioner . It is further prayed that a time limit direction to do the needful may also be directed to the respondents for the same."
2. Brief facts necessary for the disposal of instant writ petition are that petitioner was promoted from Pharmacist/Drug Inspector (BS-17) to Deputy Drugs Controller/Secretary District Quality Control Board (BS-18) on regular basis vide notification dated 01.06.2012. The next promotion of the petitioner was due in December , 2014 but deferred due to alleged pending inquiry and incomplete service record while the juniors of the petitioner were promoted. The petitioner approached the respondents who demanded from him NOCs and service record which petitioner produced before them. Thereafter , Director Anti-Corruption Establi shment, Bahawalpur , sent for droppage of inquiry and preparation of cancellation report on 17.12.2016 which was agreed by the competent authority . The petitioner attained the age of superannuation but respondents did not consider his case for pro forma promotion. The petitioner then filed writ petition and vide order dated 12.01.2021 respondents were directed by this Court to decide the application of the petitioner as per law. Respondent No. 2 vide order dated 19.04.2021 refused to give promotion as well as pro forma promotion to the petitioner .
3. Report and parawise comments were requisitioned from respondents which have been submitted.
4. Learned counsel for the petitioner submits that there is no fault on the part of the petitioner and he well in time applied for his right of pro forma promotio n to the authority but the case of the petitioner was not considered: from time to time petitioner has been sending applications/requests to the authority for pro forma promotion for which he was entitled but his case was not considered and even his juniors were promoted; there was no inquiry pending against the petitioner; even there was no complaint pending against the petitioner but in spite of that authority has not considered the case of the petitioner for pro forma promotion. Finally prays for acceptance of instant writ petition.
5. Learned Assistant Advocate General, on the other hand, argued that the impugned order has been passed quite in accordance with law and petitioner is not entitled for pro forma promotion; As per Rule 9(2) of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974, promotion/pro forma cannot be claimed as of right by any civil servant; under the provisions of the Punjab Civil Servants Act/Punjab Civil Servants (Appointment & Condition of Service) Rules, 1974, only a civil servant can be appointed on promotion and a retired civil servant is no longer in service, therefore, he ceases to be a civil servant; there is no delay on the part of the department in the case of promotion of the petitioner as department sent the case twice to the competent authority for consideration of promotion of the petitioner but the same was rejected by the authority; petitioner never applied for pro forma promotion; petitioner is a retired person and competent authority has not granted him regular promotion to the rank of Drugs Controller (BS-19) during his service; case of the petitioner cannot be considered for promotion as well as pro forma promotion under the act and rules. Prays for dismissal of instant writ petition.
6. Arguments heard. Record perused.
7. It has been noticed that the petitioner was appointed in Health Department as Hospital Pharmacist on regular basis vide order dated 20.01.1990 and he was promoted from Pharmacist/Drug Inspector (BS-17) to Deputy Drugs Controller/Secretary District Quality Control Board (BS-18) on regular basis vide notification dated 01.06.2012. The next promotion of the petitioner was due in December , 2014 but deferred due to alleged pending inquiry and incomplete service record while the juniors of the petitioner were promoted. While working as Secretary District Quality Control Board, Bahawalpur , an FIR No.25/13, dated 05.11.2013, was lodged against the petitioner by Inspector/Circle Officer, ACE, Bahawalpur on the charge of misconduct, inefficiency and corruption. The case of the petitioner from Deputy Drugs Controller (BS-18) to the rank of Drugs Controller (BS-19) was deferred due to pending inquiry and incomplete service record. Thereafter , the aforesaid inquiry was dropped by Director Anti- Corruption Establishment, Bahawalpur and cancellation report was prepared on 17.12.2016 which was agreed by the competent authority . On 11.12.2019 petitioner retired from Government service attaining the age of superannuation. The stance of the petitioner is that inquiry against him was dropped and he sent the copy of droppage of the inquiry to the concerned authority but without considering the facts on record, case of the petitioner was deferred. Even junior officers were promoted and were given pro forma promotion and case of the petitioner was deferred. The retired employ has no other option but to knock the door of the Court under Articles 199 and 204 of the Constitution of the Islamic Republic of Pakistan, 1973. Undeniably , petitioner was entitled to be considered for promotion to the next higher grade, however , due to pendency of the said inqui ry petitioner was not considered for pro forma promotion. It is settled law that mere pendency of the inquiry is no ground to deprive the petitioner from his lawful right. Even otherwise, petitioner cannot be kept waiting indefinitely for redressal of his grievance and deprived of his lawful right of promotion when inquiry against him has been dropped. Reliance in this regard is placed on the case of Chief Secretary Government of the Punjab and others Vs. Muhammad Arshad Khan Niazi (2007 SCMR 1355 ). Furthermore, the employee cannot be punished by denying his consideration for promotion without establishing any charge. Department has no justification to withhold said right of the petitioner .
Non-considering the petitioner for pro forma promotion is not justified in any way. In this regard, reliance is placed on the cases of Shama Khan Zafar Vs. District Coordination Officer, Lodhran and others (2014 PLC (C.S.)
948), Muhammad Amin Vs. Managing Director House Building Finance Corporation and 2 others (2016 PLC (C.S.) 569) and Muhammad Akbar Khan Durrani Vs. Federation of Pakistan through Secretary Water and Power Government of Pakistan and 5 others (2017 PLC (C.S.) Note 31). In case of Muhammad Akbar Khan Durrani (supra) the Hon'ble Division Bench of the High Court of Sindh has observed as under: "7....It is well settled that mere issuance of letters of explanation or show-cause notice or initiation of departmental inquiry or even lodgment of any FIR against any Civil Servant, shall not deprive him from his next promotion, if he is otherwise qualified and meets all the requisite formalities for consideration to be promoted in next grade.
Similarly , there is neither any bar nor any impediment upon the department to proceed further and simultaneously initiate disciplinary proceedings against any Civil Servant in accordance with law"
The reasons mentioned in the comments submitted by Secretary (Primary & Secondary Healthcare, Department), Lahore/respondent No.2 are not logical and sustainable. The right of promotion of a civil servant cannot be withheld mere on the ground of allegation. Even after retirement, he can agitate his right of pro forma promotion which he was available during his service time. Reliance in this regard is placed on the case of Arshad Ali Vs. WAPDA and others (2020 PLC (C.S.) 1226) where it has been held as under: "(a) Civil service---Promotion---T ime scale upgradation---Non-convening of Time Scale Upgradation Board's meeting---Effect---Petitioner assailed the refusal of his application and sought direction to the authorities for granting him time scale upgradation along with pensionary benefits---V alidity-- Petitioner was eligible for promotion but he could not be granted time scale upgradation only because of non-convening of Time Scale Upgradation Board's meeting and having been retired in the meanwhile---Promotion policy of the department itself had provided that the meeting of the Board for the purpose of time scale upgradation would be held twice a year---Word 'shall' was used in the notification, which was a mandatory expression and manifest purpose of the rule/policy was that it must be acted upon as a general course-Petitioner also referred to an office order wherein benefit of time scale upgradation was given to those employees who were eligible for the same but were not allowed due to non- conducting of respective Board's meeting---Impugned order was set aside and the matter was remanded to the authorities to re-consider the plea of petitioner ."
Further reliance is placed on the case of Secretary School of Education and others Vs. Rana Arshad Khan and others ( 2012 SCMR 126 ) wherein it has been held as follows: "Punjab Civil Servants Act (VIII of 1974)--- Ss. 2(g-a)(g-b), 5 & 8---Punjab Service Tribunals Act (IX of 1974), S.4- Constitution of Pakistan, Art. 212(3)--- Promotion--- Working papers regarding appellants' promotion prepared before their retirement from service on attaining age of superannuation---Denial of promotion to appellants due to their retirement---Service Tribunal while accepting appeal directed department to prepare working papers regarding appellants' promotion and place same before Selection Board for consideration--- Validity--- Department had delayed matter of appellants' promotion without any justifiable reason, for which they could not be made to suffer --- Appellants' promotion after retirement from service would be pro forma promotion---Supreme Court refused to grant leave to appeal in circumstances."
08. In view of what has been discussed above, instant writ petition is accepted, order dated 19.04.2021 is set aside and respondent/department is directed to promote the petitioner from BS-18 to BS-19 from his due date and give pensionary benefits accordingly .